MARIO STRBAC AS EXECUTOR OF THE WILL AND ESTATE OF PHILIP JAMES PETTIT -v- FERGUSON [2026] WASC 246

[2026] WASC 246 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : MARIO STRBAC AS EXECUTOR OF THE WILL AND ESTATE OF PHILIP JAMES PETTIT -v- FERGUSON [2026] WASC 246 CORAM : GETHING J HEARD : 8 JUNE 2026 DELIVERED : 8 JUNE 2026 PUBLISHED : 19 JUNE 2026 FILE NO/S : CIV 1741 of 2026 BETWEEN : MARIO STRBAC AS EXECUTOR OF THE WILL AND ESTATE OF PHILIP JAMES PETTIT Plaintiff AND LEAH MICHELLE FERGUSON Defendant Catchwords: Practice and procedure - Interlocutory injunction - Claim by executor of initial joint owner against surviving joint owner that property is held on trust based on initial joint owner’s contributions - Whether serious question to be tried - Whether balance of convenience favours relief - Turns on own facts Legislation: Nil -- 1 of 13 -- [2026] WASC 246 Page 2 Result: Interim injunction granted Category: B Representation: Counsel: Plaintiff : Mr C Edwards Defendant : Mr D Markovich Solicitors: Plaintiff : Delta Legal Defendant : Hale Legal Case(s) referred to in decision(s): Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Barrett v King [2024] WASCA 169 Baumgartner v Baumgarnter (1987) 164 CLR 137 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 Muschinski v Dodds (1985) 160 CLR 583 Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 -- 2 of 13 -- [2026] WASC 246 GETHING J Page 3 GETHING J: (This judgment was delivered extemporaneously on 8 June 2026 and has been edited to correct grammar and infelicities of language and to include full references to relevant evidence and authorities). 1 On or around 3 January 2012, Philip Pettit and Leah Ferguson purchased the property comprising Lot 2 on Survey Strata Plan 53827, being the whole of the property contained in Certificate Title Volume 2677, Folio 588, better known as 94B St Kilda Road, Rivervale, in the state of Western Australia (the Property). Mr Pettit and Ms Ferguson were on the title of the Property as joint tenants. They were in a de facto relationship at the time which ended shortly after they purchased the Property. Ms Ferguson vacated the property at this time. 2 Mr Pettit died on 21 August 2025. Since then, Ms Ferguson has become the sole registered proprietor of the Property by survivorship. 3 The executor of Mr Pettit's estate is Mario Strbac (Plaintiff). The Plaintiff commenced this action in this capacity against Ms Ferguson, seeking a declaration of a resulting or constructive trust over the Property. The Plaintiff asserts Mr Pettit had an equitable interest in the Property arising from his contribution to the initial purchase price of the Property and his subsequent contribution to the mortgage, rates, utilities and general upkeep of the Property. 4 On 4 June 2026 the Plaintiff filed a chamber summons, primarily seeking an interlocutory injunction to either restrain Ms Ferguson from selling the Property, or to have the proceeds of the sale of the Property paid into a joint trust account (Application). The Plaintiff also seeks a stay of related proceedings in the Magistrates Court of Western Australia in which Ms Ferguson seeks to obtain possession of the Property. The Plaintiff filed a certificate of urgency requesting an immediate listing on the basis of the Magistrates Court proceedings being listed for trial on 9 June 2026. In support, the Plaintiff filed an affidavit sworn on 3 June 2026 by Craig Edwards, a legal practitioner employed by the Plaintiff's lawyers, Delta Legal (Edwards Affidavit). 5 Ms Ferguson has entered an appearance. She filed an affidavit affirmed on 8 June 2026 in opposition to the Application (Ferguson Affidavit). -- 3 of 13 -- [2026] WASC 246 GETHING J Page 4 6 I am informed in the certificate of urgency that the parties are before the court in a related action, CIV 1333 of 2026. This is an action brought by Ms Ferguson seeking to remove a caveat which the Plaintiff has lodged over the Property in relation to his claim under Mr Pettit's will. This application has been programmed towards a hearing and is back in the Master's list on 25 June 2026. I will refer to this as the Caveat Application. Plaintiff’s evidence 7 In terms of the Plaintiff's evidence, Mr Edwards deposes to the facts which I have already mentioned. 8 In oral submissions, Mr Edwards advised the court there was a defect on the face of the caveat, and that it is likely the caveat will be removed and potentially replaced. 9 Mr Edwards deposed that on 21 September 2015, Ms Ferguson wrote by email to Mr Pettit, agreeing to settle her entitlements to the Property for $50,000, if the Property was sold for $1.1 million or more (a copy of which he annexed). I observe that this email is capable of being an admission against Ms Ferguson’s interest as to her level of contribution to the Property. 10 Mr Edwards goes on to depose that in the days prior to Mr Pettit's passing, Delta Legal began drafting, on his instructions, an application for a Family Court property settlement, in which Ms Ferguson was to be the respondent. Mr Pettit died before this application could be filed, and though a draft affidavit was prepared, it was never executed. 11 Mr Edwards sets out the inquiries which the Plaintiff has made to date in order to ascertain Mr Pettit's contributions to the Property. He deposes that based on the information received to date, all payments on the mortgage of the Property were made by Mr Pettit. 12 The Property is currently being occupied by Erin Pettit. She is Mr Pettit's daughter. Ms Pettit is the sole beneficiary under Mr Pettit's will. 13 On 10 November 2025, Ms Ferguson filed a claim for recovery of real estate property in the Magistrates Court. The claim was filed in relation to the Property, against Ms Pettit. It took some time for the identity of Ms Pettit as the occupant of the Property to be ascertained. -- 4 of 13 -- [2026] WASC 246 GETHING J Page 5 14 Mr Edwards deposes that he appeared for Ms Pettit in the Magistrates Court on 15 January 2026, and applied for the proceedings to be adjourned until after the resolution of the Plaintiff's claims to a majority beneficial interest in the Property. He notified the court that: (a) there had been conferral between solicitors for Ms Pettit and Ms Ferguson concerning the Plaintiff's intention to claim a beneficial interest in resulting and constructive trusts over the Property; (b) the Plaintiff intended to commence proceedings in the Supreme Court to pursue such a claim, but was not yet in a position to do so, because he was still awaiting the grant of probate; and (c) that before the Plaintiff could commence such proceedings, after receiving the grant of probate, the Plaintiff would need to make inquiries with and obtain financial records from a number of institutions and businesses, and this would take some time. Notwithstanding those submissions, the Magistrates Courts proceedings have been listed for trial on 9 June 2026. 15 On 14 April 2026, Ms Ferguson filed a witness statement in the Magistrates Court proceedings, in which she stated that her purpose in those proceedings was that she could sell the Property. 16 Mr Edwards then deposes that to the best of his knowledge and belief, Ms Ferguson has to date, not offered any undertaking to not dispose of the proceeds of the sale until a resolution of the Plaintiff's claim. 17 The Plaintiff submits that if Mr Pettit is found to have held a majority beneficial interest in the Property by way of resulting or constructive trust, then the Plaintiff, as executor of Mr Pettit's estate, has an interest in whether Ms Pettit should be allowed to continue residing at the Property, as she is the sole beneficiary of Mr Pettit's will. Although Ms Ferguson is the sole registered proprietor of the Property by survivorship, if the estate is found to hold a majority beneficial interest in the Property, Ms Ferguson's rights as a proprietor may be subject to duties owed to the beneficial owner. 18 If the Magistrates Court proceedings are not stayed before the trial on 9 June 2026, this puts the estate at risk, in that the proceedings will be determined without further consideration of, and counter to, any -- 5 of 13 -- [2026] WASC 246 GETHING J Page 6 such benefit. Further, if the Magistrates Court's proceedings are not stayed before trial, and Ms Ferguson is not otherwise restrained, there is a risk that she will act upon the intention stated in her witness statement to sell the Property. Ms Ferguson has not given any assurances that she will deal with the Property, or proceeds of sale, in a manner that protects the estate's interests pending resolution of this claim. 19 Mr Edwards concluded by advising the court that he has instructions that if an injunction is granted, the Plaintiff gives an undertaking as to damages in the following form: The plaintiff undertakes to the court that he will pay to any party restrained or affected by the restraints imposed by this interlocutory injunction, or of interim continuation thereof, such compensation as the court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the court or in accordance with such directions as the court may make and to be paid in such manner as the court may direct. In this regard, the Plaintiff filed an undertaking, dated 4 June 2026, as to damages in the usual terms. Ms Ferguson’s evidence 20 Ms Ferguson deposes that: (a) she paid a $40,000 deposit for the Property; (b) she was a joint registered proprietor of the Property with Mr Pettit; (c) she and Mr Pettit separated around a year after they purchased the Property; (d) after leaving the Property, she was not allowed access; (e) she was aware that Mr Pettit received rental income from the Property, which he applied to either pay the mortgage or for his personal use; and (f) the mortgage was often in arrears, and is currently in arrears of around $58,000. 21 I was informed during the hearing that the mortgage is currently $662,000, and that the monthly repayments are in the order of $5,000 a month. -- 6 of 13 -- [2026] WASC 246 GETHING J Page 7 Principles 22 The principles to be applied in an application for an interlocutory injunction are well known. The court must consider whether there is a serious question to be tried and whether the balance of convenience favours the grant of an injunction.1 23 On an interlocutory injunction, the court does not form a concluded view as to the merits of the plaintiff's case, nor is there any contest in matters of law.2 In order to establish the plaintiff's case, the plaintiff does not have to show that it is more probable than not the plaintiff will succeed at trial. It is sufficient that the plaintiff shows a sufficient likelihood of success to justify the preservation of the status quo pending the trial.3 24 The court must also consider whether the inconvenience or injury that the plaintiff would likely suffer if an injunction was refused, is outweighed by the prejudice the defendant would suffer if injunction was granted.4 The question as to whether damages would be an adequate remedy is an aspect of the balance of convenience.5 25 The enquiries relating to a prima facie case and the balance of convenience are related, but not independent enquiries.6 If the plaintiff has a strong prima facie case, this may tip the balance in favour of the grant of an injunction.7 As the strength of the plaintiff's case diminishes, the court will place more weight on considerations of balance of convenience and the practical consequences that flow from granting the injunction. 26 It is necessary on an application for an interlocutory injunction for the plaintiff to identify the legal or equitable rights in respect of which final relief is sought. If the plaintiff is unable to do so, the foundation of the claim for the interlocutory relief falls away. This is because the 1 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [65] (Gummow and Hayne JJ) (ABC v O’Neill); Barrett v King [2024] WASCA 169 [24] (Buss P, Vaughan JA and Tottle J) (Barrett); Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87] (Newnes JA, with whom McLure P and Corboy J Agreed) (Mineralogy). 2 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622 (the court); Mineralogy [87] and [102]. 3 Mineralogy [87]. 4 ABC v O’Neill [65]; Barrett [24]; Mineralogy [87]. 5 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [130] - [131] (reasons of the court) (Sino Iron). 6 Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [12] (Beech J). 7 Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 [67] (the court). -- 7 of 13 -- [2026] WASC 246 GETHING J Page 8 purpose of a grant of an interlocutory injunction is to preserve the subject matter of dispute (or maintain the status quo) pending trial.8 Is there a serious question to be tried? 27 I turn first to whether or not there is a serious question to be tried. 28 In certain circumstances, the court will impose a constructive trust where parties have made a contribution to a joint endeavour to preclude the unconscionable assertion of legal title. The principle was enunciated by Deane J in Mushinski v Dodds in the following terms:9 … the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame, and where the benefit of the money or the property contributed by one party on the basis and for the purpose of the relationship or endeavour would otherwise be enjoyed by the other party, in circumstances in which it was not specifically intended or specifically provided that the other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit the other party to assert or attain the benefit of the relevant property to the extent that it would be unconscionable for him so to do. 29 In Mushinski, the appellant, Ms Mushinski, and the respondent, Mr Dodds, were an unmarried couple who had been living together since 1972. In 1975, they purchased a property on which stood a dilapidated cottage. They intended to restore it to use for Ms Mushinski as an arts and crafts centre, and to construct a prefabricated house on another part of the property in which to live. Ms Mushinski paid the purchase price of the property (some $20,000) from her own funds and agreed to include Mr Dodds's name on the title if he undertook to renovate the cottage and pay for the prefabricated house. The property was transferred to the parties as tenants in common in equal shares. In 1980, the parties separated permanently. The cottage had not been renovated and the prefabricated house had not been acquired. Ms Mushinski claimed sole beneficial ownership of the property. The High Court, by majority (Gibbs CJ, Mason and Deane JJ, Brennan and Dawson JJ dissenting), decided that the parties held their legal interests in the property on trust, after payment of any joint debts incurred in improving the property, to repay each of them for his or her contribution, and as to the residue, for the both of them in equal shares. Mason and Deane JJ based this conclusion on their 8 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [80] (Gummow and Hayne JJ). 9 Muschinski v Dodds (1985) 160 CLR 583, 620 (Deane J, with whom Mason J agreed) (Muschinski). -- 8 of 13 -- [2026] WASC 246 GETHING J Page 9 finding that it would be unconscionable, after the failure of the joint venture between the parties, for Mr Dodds to assert his legal entitlement without recognising Ms Mushinski's payment of the purchase price. 30 The passage which I have quoted earlier from the decision of Deane J at [28], was approved and applied by Mason CJ, Wilson and Deane JJ in Baumgartner v Baumgartner.10 In that case, the parties to a de facto relationship pooled their incomes for living expenses and fixed commitments. They lived at first in a unit owned by the respondent, which they sold when they acquired a house in his name (referred to as the Leumeah property). The Leumeah property was purchased with the aid of a mortgage in the name of the respondent who also contributed to the net proceeds of the sale of a unit. The parties' aggregate earnings were pooled in the proportions of roughly 55% by the respondent and 45% by the appellant. They later separated and the respondent asserted that the Leumeah property was his sole property. The High Court held that the respondent held the Leumeah property on trust for the parties in the proportions in which they contributed their earnings to its acquisition, subject to a charge in the respondent's favour for the net proceeds of the unit. 31 Mason CJ, Wilson and Dawson JJ said of the relationship:11 The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant's assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent. It therefore becomes necessary to determine the terms of that constructive trust. The facts that the Leumeah property was acquired and developed as a home for the parties and that, at least indirectly, it was largely financed out of money drawn from the pool of their earnings, this being one of the purposes which the pool was to serve, combine to support an equality of beneficial ownership at least as a 10 Baumgartner v Baumgarnter (1987) 164 CLR 137, 148 (Mason CJ, Wilson & Deane JJ) (Baumgartner). 11 Baumgartner 149 - 150. -- 9 of 13 -- [2026] WASC 246 GETHING J Page 10 starting point. Equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind. The question which has caused us particular difficulty is whether any such adjustment is necessary in the circumstances of the present case to avoid any injustice which would otherwise result by reason of disparity between individual financial contributions. The conclusion to which we have come is that some such adjustment is necessary. 32 These principles are directly applicable to the present case. In my view, there is a seriously arguable case that Ms Ferguson holds the legal title to the Property on constructive trust for the estate of Mr Pettit. The real issue at trial will be the extent of the parties’ respective contributions. In this regard, the evidence currently before the court includes that: (a) Ms Ferguson ceased living in the Property in 2012; and (b) Mr Pettit at least paid the mortgage on the Property. There is a serious arguable case that the Mr Pettit’s estate is entitled to most of the beneficial interest in the Property. Where does the balance of convenience lie? 33 I turn then to the balance of convenience. 34 There is an air of inevitability from the finding that I have made in relation to the serious question to be tried that there will need to be an accounting for the respective contributions of Mr Pettit and Ms Ferguson. 35 That, in turn, will determine the proportions or the extent of the constructive trust which the court would impose in relation to Ms Ferguson's legal title. That has three components: (a) the amount of rental or other income which Mr Pettit or his estate has received in relation to the property; (b) the contributions made by Mr Pettit to the property; and (c) the contributions made by Ms Ferguson to the property. -- 10 of 13 -- [2026] WASC 246 GETHING J Page 11 36 The primary factor requiring some urgency in this is whether it is appropriate to allow the trial in the Magistrates Court to proceed. 37 As I mentioned, the purpose of that trial is for Ms Ferguson to obtain vacant possession of the property from Ms Pettit. I reiterate that Ms Pettit is the beneficiary under the will. It seems to me that, in order for this issue to be fully aerated, there will need to be some consideration of the basis on which Ms Ferguson holds her legal interest. That being so, there seems to be an inevitable duplication of proceedings in the Magistrates Court and in this court. 38 In these circumstances, in my view it is not in the interests of justice for that to occur. The balance of convenience clearly lies in preserving the status quo while the issue of the extent of the Plaintiff’s beneficial interest in the Property is determined. 39 This is not a case in which the Plaintiff is seeking to evict Ms Ferguson from her residence. Rather, Ms Ferguson’s interest appears, on the materials currently before the court, to be purely economic. There is a risk that if the Property is allowed to be sold, that Ms Ferguson will deal with the proceeds in a manner which prejudice the Plaintiff’s claim. Further, if the position at the end of the trial is along the lines of Ms Ferguson’s email of 21 September 2015, and her interest is less than 5%, the Plaintiff should have the option of paying her out and allowing Ms Pettit to continue residing at the Property. 40 To that end, there should at least be an order restraining the Ms Ferguson from selling, or in any way dealing with, the Property until the present action is determined. 41 Further, an injunction should be made restraining Ms Ferguson from proceeding with her claim in the Magistrates Court, and requiring her to do and sign all things necessary to adjourn those proceedings sine die. Having said that, there will no doubt be some issues in relation to the costs of the Magistrates Court proceedings which do not need to be determined at this stage. 42 This leaves the present question as to what happens in relation to the Property. The Plaintiff’s undertaking sufficiently protects Ms Ferguson from any other risks. The Plaintiff's primary submission is that there be an injunction restraining Ms Ferguson from selling the Property. This, when coupled with the orders that I propose to make in relation to the Magistrates Court proceedings, would have the effect that Ms Pettit could continue to reside in the Property. The interest -- 11 of 13 -- [2026] WASC 246 GETHING J Page 12 which the Plaintiff pursues is the possibility that Ms Pettit may wish to retain the Property, and effectively buy out Ms Ferguson. Ms Ferguson's position is that she should be allowed to sell the Property. There did not seem to be serious opposition to an order that upon the sale of the Property, the net proceeds be transferred into an interest-free trust account held jointly by both law firms. 43 A significant concern of Ms Ferguson is that the mortgage is currently some $58,000 in arrears. She has, in my view, a legitimate concern that, unless that mortgage position is regularised, the interests of justice are going to inevitably served by an order for the sale of the Property. In terms of how that balance is managed in this case, I propose the following. 44 There should be an order to the effect of giving Ms Pettit an opportunity to make a proposal to buy out Ms Ferguson and retain the Property. Ms Ferguson, as I understand it, is a party to the mortgage. 45 Any proposal to buy out Ms Ferguson necessarily includes a proposal to refinance the mortgage over the Property. The only basis on which it would be fair, or it would make sense, for Ms Ferguson to accept that proposal, is on the basis that the mortgage is paid out, and the Property is refinanced, and then she gets a sum of money. The way that should be achieved is to make an order restraining Ms Ferguson from selling the Property, to grant the parties liberty to apply, to relist the matter before me in the end of the month, and then see where the situation lies. 46 By that time, one of two things will have happened. The first is that the Plaintiff and Ms Pettit would have made an offer to Ms Ferguson to buy her out, on the basis that the Ms Pettit retains the Property. If that has not occurred, then it seems to me inevitable that the Property is going to have to be sold in order to clear the mortgage. On that scenario, the net sale proceeds will be paid either into court or into a joint trust account. If the parties end up in that situation, the next step would be for the matter to proceed to a mediation in this court. That can take place in parallel to the sale process. 47 Again, in order to manage the balance of convenience, there should be an order permitting Ms Ferguson to have an opportunity to inspect the Property in person, and if necessary, and if she wants, with a property valuer. This is because it seems to me that one of the issues -- 12 of 13 -- [2026] WASC 246 GETHING J Page 13 that Ms Ferguson will need to know in relation to her position, is the value of the Property. Conclusion 48 In summary terms, what I propose to do is: (1) restrain Ms Ferguson from proceeding with the Magistrates Court proceedings on the basis of the issue of possession of the Property is appropriately dealt with in this court; (2) make orders on an interim basis, purely restraining Ms Ferguson from selling the Property; (3) relist the matter at the end of the month; and (4) grant the parties liberty to apply. 49 On that basis, it is open to Ms Ferguson to request the court to allow her to sell the Property, or to change the nature of the injunction so that she can sell the Property and proceed from there. In that situation, the Supreme Court, in my view, has ample power as an auxiliary order, to make an order for the delivery up of vacant possession against any third party who is in occupation of the Property. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. OB Associate to the Hon Justice Gething 18 JUNE 2026 -- 13 of 13 --