Gangemi v Gangemi [2009] WASC 195

Halaga Developments Pty Ltd v Grime (1986) 5 NSWLR 740

Milne Feeds Pty Ltd v Bride (Unreported, WASC, Library No 960247, 7 May 1996)

Stocks & Holdings (Imperial Arcade) Ltd v Fink [1965] NSWR 504

1 MURPHY J: I have before me an application for an injunction to restrain the first defendant from lodging caveats over certain properties owned by the plaintiff. The background to the application is that the plaintiff applied, by originating summons dated 13 July 2009, pursuant to s 138 of the Transfer of Land Act 1893 (WA) (the Act), to show cause why caveat K928351 (the Briggs Road caveat) registered against Certificate of Title volume 1168 folio 664 (the Briggs Road property) should not be removed and for other injunctive orders restraining the first defendant from lodging, and the second defendant from registering, any caveats on all the other land registered in the name of the plaintiff in Western Australia. In relation to that summons, on 7 August 2009 I made orders for removal of the Briggs Road caveat and an order precluding, in effect, any further caveats being lodged over the Briggs Road property, but did not make any orders for wider injunctive relief.

2 The Briggs Road property was one of a number of properties which had been held by a family partnership of which the plaintiff was a member. The plaintiff's present interest in the property was transferred to him pursuant to a deed of dissolution of partnership dated 28 June 1978 (the 1978 deed). The first defendant had earlier lodged a caveat over another former partnership property which had been transferred to the plaintiff pursuant to the 1978 deed. The plaintiff had, in earlier proceedings CIV 1557 of 2009, applied for the removal of that other caveat by the first defendant. The sister of both the plaintiff and the first defendant (this is essentially a family dispute) had also lodged a caveat over that other property. The plaintiff had commenced proceedings CIV 1858 of 2009 to remove that caveat also.

3 In the earlier proceedings, both the first defendant, and the sister, claimed in substance that their caveatable interest arose on the basis that they were residuary beneficiaries under the will of their late mother which, they said, gave them interests in property which had been transferred to the plaintiff under the 1978 deed.

4 Judgment was delivered on 22 July 2009 in relation to those earlier proceedings, in which it was held that the caveators had no caveatable interest as alleged: Gangemi v Gangemi [2009] WASC 195. The first defendant has lodged an appeal against that decision: CACV 87 of 2009. The costs of the earlier proceedings were not determined on 22 July 2009 as they were, on the plaintiff's application, proposed to be dealt with in conjunction with then proposed proceedings by the plaintiff under s 140 of the Act.

5 As I have said, the Briggs Road property is another property which was transferred to the plaintiff under the 1978 deed. The plaintiff became the registered owner of that property in 1981. The first defendant claimed a caveatable interest in respect of the Briggs Road property on the same basis, in substance, as that claimed in the earlier proceedings in which I had found that there was no caveatable interest.

6 On 7 August 2009 I accordingly made orders for the removal of the Briggs Road caveat. I did not make orders for the wide injunctive relief sought in the plaintiff's summons on that occasion in relation to all the properties registered in the name of the plaintiff in Western Australia, although I indicated I would be minded to allow a more limited injunction so as to preclude the first defendant from caveating, on the same basis, other properties that had been transferred to the plaintiff pursuant to the 1978 deed. There was no evidence on that occasion as to what those other properties were, and I allowed the plaintiff time to adduce further evidence identifying such properties, and stood the matter over for further consideration.

7 Evidence as to the specific properties transferred to the plaintiff pursuant to the 1978 deed was adduced in an affidavit sworn by the plaintiff on 14 August 2009.

8 The plaintiff's claim for injunctive relief came on again for hearing on 11 September 2009. The first defendant appeared in person. Also on that day the earlier caveat proceedings between the plaintiff and first defendant, and the plaintiff and the sister, came on for directions, as did another set of proceedings which had by then been commenced by the plaintiff, CIV 2334 of 2009, seeking orders for compensation under s 140 of the Act in respect of the caveats lodged by the first defendant and the sister the subject of the earlier proceedings. The plaintiff, in its minute of proposed directions on 11 September 2009, sought orders to the effect that the compensation proceedings and the costs of the earlier proceedings be mediated. This proposal accorded with the wishes of the sister communicated to the court by her husband on a previous occasion, and was adopted by the first defendant and the sister at the hearing on 11 September 2009. This approach seemed to me to be commendable and I gave directions in that regard on 11 September 2009.

9 The plaintiff nevertheless continued to seek to enjoin the lodgement of further caveats by the first defendant on the basis outlined by Murray J in the case of Milne Feeds Pty Ltd v Bride (Unreported, WASC, Library No 960247, 7 May 1996). In that case Murray J said at (17):

It is clear that it lies within the jurisdiction of the court effectively to grant an injunction restraining a party from conduct which is lawful, such as the lodgment of the caveat, upon the ground that such restraint is necessary in the interests of justice to protect a particular litigant from a multiplicity of actions and to order the business of the court.

10 His Honour, in support of that proposition, referred to the case of Halaga Developments Pty Ltd v Grime (1986) 5 NSWLR 740, 747 and to Stocks & Holdings (Imperial Arcade) Ltd v Fink [1965] NSWR 504.

11 At the hearing on 11 September 2009 I raised with counsel for the plaintiff whether, in light of the conciliatory approach adopted with respect to the remaining issues concerning the previous caveats, further curial restraint was necessary. The plaintiff contended that there remained a real risk that further caveats would be lodged, unless the first defendant was restrained by court order.

12 The first defendant on that occasion said, in effect, that he maintained that he had a caveatable interest on the basis of his claim as a beneficiary of the mother's estate. After being referred to the adverse decision against him, the following exchange occurred:

GANGEMI, MR: Yes, but I believe because of our inexperience we didn't handle it the way it should have been. I believe there still is a right there and I want to pursue it. I want to have the right to do that.

MURPHY J: Do you have any sort of imminent plans to lodge caveats over these properties?

GANGEMI, MR: Probably not in the short term but I want to get some advice on the areas that concern me. If I have a right, I want to pursue it, yes. I am objecting to these minutes that they are proposing.

13 In my opinion, there is a real risk that the first defendant will lodge caveats over the various parcels of land transferred to the plaintiff pursuant to the 1978 deed on the same, or substantially the same, grounds as previously claimed. Some 18 parcels of land are involved. The plaintiff has no legal alternative but to summon the first defendant to show cause why caveats lodged by the first defendant purportedly on the basis of the mother's will should not be removed. There is no administrative mechanism provided by the Act for the lapse of caveats lodged by a beneficiary claiming under a will. See s 138(2) of the Act; cf s 138(3) and ss 138A(b) and 138B of the Act. If the first defendant pursues a course of lodging, from time to time, caveats over the plaintiff's properties on the basis of the mother's will, in circumstances where it has been held that he has no caveatable interest, it would be unwieldy, vexatious and costly to have the same issues repeatedly litigated and determined.

14 Also as to the balance of convenience, the first defendant was a bankrupt between 1996 and 1999. There is evidence that he currently owns no real property in Western Australia. Any costs orders obtained by the plaintiff against the first defendant in successfully applying for the removal of caveats are likely to be of limited value to the plaintiff.

15 On the evidence before me and in the light of the first defendant's statements referred to above, it is appropriate to grant injunctive relief. The justice of the case requires that the first defendant be restrained, on the terms discussed below, from lodging further caveats in respect of the various parcels of land transferred to the plaintiff pursuant to the 1978 deed, and the second defendant be restrained from registering any such caveats lodged.

16 In relation to the duration of an injunction, in all the circumstances it seems to me that justice would be served if the first defendant were restrained from the lodgement of such further caveats pending any successful determination of his appeal in CACV 87 of 2009, or further order, and subject to liberty to apply on 72 hours' written notice.