PSAILA -v- PSAILA [2026] WASC 342

[2026] WASC 342 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : PSAILA -v- PSAILA [2026] WASC 342 CORAM : ACTING MASTER GRIFFIN HEARD : 22 JULY 2026 DELIVERED : 18 AUGUST 2026 FILE NO/S : CIV 2342 of 2025 BETWEEN : LIAM RICHARD PSAILA plenary administrator MARIO GIUSEPPE MAURIZIO FRANCESCO PSAILA Plaintiff AND BEN LUKE PSAILA Defendant Catchwords: Practice and procedure - Summary judgment - Vacant possession - Application for possession of property - Turns on own facts Practice and procedure - Summary judgment - Application for leave to apply for summary judgment pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) O 3 r 1, O 14 r 1, O 14 r 1(1), O 14 r 2(1), O 14 r 3 -- 1 of 20 -- [2026] WASC 342 Page 2 Supreme Court of Western Australia's Consolidated Practice Directions PD 4.3.2.9 Result: Application granted Leave to bring application for summary judgment out of time Summary judgment entered for the plaintiff Category: B Representation: Counsel: Plaintiff : C Eastwood Defendant : In person Solicitors: Plaintiff : Eastwood Law Defendant : In person -- 2 of 20 -- [2026] WASC 342 Page 3 Cases referred to in decision: Allen v Roughly (1955) 94 CLR 98 Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 Commonwealth Bank of Australia v Shada Pty Ltd [2025] WASC 200 Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 Fels v Rural Bank [2020] WASCA 151 Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 Glew v Frank Jasper Pty Ltd [2010] WASCA 87 Mineralogy Pty Ltd v Sino Iron [No 11] [2016] WASC 235 Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 MTI v SUL [No 2] [2010] WASCA 58 Police & Nurses Limited v Maynard [2025] WASC 325 Smart v Prisoner Review Board (WA) [2012] WASC 48 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 The Proimmune Company, LLC v Holista Colltech Limited [2026] WASC 112 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Westpac Banking Corporation v Anderson [2017] WASC 106 Westpac Banking Corporation v Palaniappan [2014] WASC 475 Wright v Cecilia Holdings Pty Ltd [2026] WASC 185 -- 3 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 4 ACTING MASTER GRIFFIN: 1 Mario Giuseppe Maurizio Francesco Psaila is the registered proprietor of Lot 1 on Strata Plan 24887 part of the land in Certificate of Title Volume 1973 Folio 339 (Property). 2 On 22 May 2025, the State Administrative Tribunal made the following orders (SAT Orders):1 1. The Tribunal declares that the represented person, Mario Giuseppe PSAILA is: (a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and (b) in need of an administrator of his estate. Administration 2. The administration order dated 23 January 2024 is revoked and substituted with an order in the following terms: 3. Liam Richard PSAILA of 27 Edwards Drive, Altona Meadows, Victoria is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA). 4. The administrator is authorised to allow the represented person's grandson, Ben PSAILA, to continue to live in the property of [redacted] (the property) at less than market rental. This arrangement can continue only for as long as the represented person's financial needs are met, and it continues to be in his best interests. 5. The administrator is directed to immediately insure the represented person's property and to forthwith provide the Public Trustee with a copy of the Cover Note and paid Premium Notice. (a) The Tribunal notes that it is the intention of the administrator to sell the property in the immediate future. … 1 See affidavit of Ben Luke Psaila made on 7 July 2026 [15], 'BLP-3' (SAT Orders). -- 4 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 5 3 Where it is necessary for clarity, I will refer to Mario Giuseppe Maurizio Francesco Psaila as 'Mario' and Liam Richard Psaila as 'Liam' in these reasons, without intending any disrespect. 4 Mario, by his plenary administrator, Liam, commenced these proceedings against the defendant, Ben Luke Psaila, on 25 November 2025. The writ seeks possession of the Property and for leave to issue a property seizure and deliver order pursuant to s 95 of the Civil Judgments Enforcement Act 2004 (WA) against the defendant. 5 The defendant entered an appearance on 11 December 2025 and filed a defence and counterclaim on 15 January 2026. 6 By chamber summons filed on 20 February 2026, as amended on 13 March 2026 (Application), the plaintiff applies for: 1. Leave to bring the Application pursuant to O 14 of the Rules of the Supreme Court 1971 (WA) (RSC). 2. Judgment in the action be entered for the plaintiff against the defendant for possession of the Property. 3. Leave to issue a property (seizure and delivery) order pursuant to s 95 of the Civil Judgments Enforcement Act against the defendant. 4. The defendant pay the plaintiff's costs of the action on an indemnity basis. 7 The Application was filed later than the 21-day period prescribed by RSC O 14 r 1. 8 For the reasons that follow, it is appropriate that leave to file the Application is granted to the date of filing and that summary judgment is granted to the plaintiff. Materials relied on 9 The plaintiff relies on an outline of submissions filed on 7 May 2026, reply submissions filed on 13 July 2026 and affidavits of: (a) Liam Richard Psaila made on 13 February 2026 (First Liam Psaila Affidavit) and 13 July 2026 (Second Liam Psaila Affidavit); and -- 5 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 6 (b) Cameron Victor Eastwood made on 27 March 2026 (Eastwood Affidavit). 10 In opposition to the Application, the defendant relies on two outlines of submissions filed on 10 March 2026 and 17 July 2026, a defence filed on 15 January 2026, and his affidavit made on 1 July 2026 (Ben Psaila Affidavit). 11 The defendant is a self-represented litigant. I have considered the documents in which he articulates his case and response to the Application with some flexibility.2 At the same time, I must ensure that any latitude I give to the defendant does not deprive the plaintiff of his right to procedural fairness and a fair hearing.3 Principles 12 The following principles for summary judgment applications were set out by Master Russell in Police & Nurses Limited v Maynard4 and Wright v Cecilia Holdings Pty Ltd,5 which I gratefully adopt, as follows. 13 The procedural requirements for an application for summary judgment were summarised by Archer J6 in Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna.7 14 An application for summary judgment must be brought within 21 days after an appearance has been filed, or a later time with leave of the court.8 15 The 21-day limit to bring an application for summary judgment reflects the view that such applications should be brought promptly and at an early stage of the proceedings, before unnecessary expense is incurred. Where leave is required to bring an application out of time, the onus is on the applicant to demonstrate that the delay is justifiable 2 See Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J). 3 Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; MTI v SUL [No 2] [2010] WASCA 58 [42] - [43] (Newnes JA, Pullen & Buss JJA agreeing); Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]. 4 Police & Nurses Limited v Maynard [2025] WASC 325 [14] - [20]. 5 Wright v Cecilia Holdings Pty Ltd [2026] WASC 185 [14] - [15]. 6 As her Honour then was. 7 Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 (Cologna Investments) [27] (Archer J). See also Commonwealth Bank of Australia v Shada Pty Ltd [2025] WASC 200 [12] - [14], [30] - [31] (Gething J). 8 RSC O 14 r 1(1). -- 6 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 7 in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.9 16 In Gallo v Dawson,10 McHugh J said in the context of leave to extend time to appeal: The discretion to extend time is given for the sole purpose of enabling the Court of Justice to do justice between the parties. This means that the discretion can be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant and refusal of the application for the extension of time. 17 Chaney J referred to and applied those principles to an application to extend time for bringing an application for summary judgment in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 11].11 18 An application pursuant to RSC O 14 must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.12 19 The principles relating to an application for summary judgment are well established and were not in dispute. They were summarised in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd, as follows:13 Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The 9 Cologna Investments [26], [27.2]. See also Mineralogy Pty Ltd v Sino Iron [No 11] [2016] WASC 235 (Mineralogy) [4] (Chaney J); Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) [40] - [41] (Tottle J); Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac Banking) [38] (Pritchard J). 10 Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459. 11 Mineralogy [4]. See also Westpac Banking Corporation v Palaniappan [2014] WASC 475 [20] (Master Sanderson). 12 RSC O 14 r 2(1). 13 Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]. -- 7 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 8 Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55]. 20 The plaintiff bears the burden of persuading the court that his claim is a good one and that there is no defence to it. If the plaintiff's affidavit or affidavits in support of the Application make out a prima facie case on these two matters, the evidentiary burden ordinarily passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action.14 21 A defendant does not have to show a defence on the balance of probabilities. However, a defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must, in their affidavit, provide sufficient particulars and details of their defence.15 22 Where an issue or question is raised, summary judgment should only be granted in favour of the applicant where they can demonstrate that the question will certainly be resolved in their favour.16 Leave to bring application out of time 23 The defendant entered his appearance on 11 December 2025. 24 Order 3 r 1 RSC provides that the time between 24 December and 15 January shall not be taken into account when calculating time periods. The 21-day time limit for bringing an application for summary judgment therefore expired on 24 January 2026. 25 The Application was filed on 20 February 2026, 27 days after it was due. The plaintiff submitted that the parties had, during that time, filed consent orders extending the time for making the Application to 30 January 2026, although those consent orders were not made. Effectively, says the plaintiff, the Application was only two and a half weeks out of time. 26 The parties conferred about the making of the Application. The defendant submitted that the conferral was not satisfactory and pointed to the substance of it. I indicated at the hearing that, although 14 Westpac Banking [53] - [54], [103]. See also Lafferty [54] and the authorities referred to. 15 See Lafferty [54]. 16 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [54] - [55]; Fels v Rural Bank [2020] WASCA 151 [27]. -- 8 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 9 conferral materials should not be put before the court without leave,17 I was satisfied that the conferral was adequate and appropriate. 27 I am satisfied that, although there was a delay in bringing the Application, it was not an undue delay. Although a defence has been filed, the Application has been brought at an early stage in the proceedings. The defendant is self-represented and has not incurred costs. There is no evidence of any prejudice to the defendant caused by the delay in bringing the Application. 28 For these reasons, I am satisfied that leave to bring the Application should be and is granted. The time for making the Application is extended to the date it was filed, 20 February 2026. The plaintiff's claim and evidence filed in support of the Application 29 Mario is the registered proprietor of the Property. In about December 2023, Mario moved into an aged care home for full-time care due to ill-health. 30 The defendant and Liam are Mario's grandsons. The defendant has resided in the Property for many years, with the knowledge and consent of Mario.18 31 To the best of Liam's knowledge, the defendant has never entered into a written lease or tenancy agreement to occupy the Property, paid any rent, or been granted any form of proprietary interest in the Property or has any equitable right to remain in the Property.19 32 In about September 2025, Liam formed the view that it was necessary to sell the Property after receiving verbal advice from Centrelink that Mario's pension would soon cease and his aged care accommodation would no longer be subsidised. Liam believes it will be necessary to sell the Property to pay for Mario's ongoing care costs.20 33 On 22 September 2025, the plaintiff's solicitors, by letter, gave notice to the defendant to vacate the Property within 21 days of receipt (Demand).21 The defendant received the Demand 24 September 2025.22 17 Supreme Court of Western Australia's Consolidated Practice Directions PD 4.3.2.9. 18 Writ of summons indorsed with a statement of claim filed 25 November 2025 (SOC) [4] - [5]; Second Liam Psaila Affidavit [8]. 19 SOC [6]; First Liam Psaila Affidavit [18]. 20 SOC [9] - [10]; First Liam Psaila Affidavit [8]. 21 SOC [11]; First Liam Psaila Affidavit [9], 'LRP-3'. 22 First Liam Psaila Affidavit [10], 'LRP-4'. -- 9 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 10 As at the date of the First Liam Psaila Affidavit, 13 February 2026, the defendant had neither responded to the Demand nor vacated the Property.23 34 The defendant remains in occupation of the Property without the plaintiff's consent, and contrary to the Demand.24 35 Due to the defendant's refusal to vacate the Property, the plaintiff has been unable to sell the Property for Mario's benefit.25 36 The failure to sell the Property has resulted in, and is likely to continue to result in, Mario's loss and damage, including the loss of mesne profits from the defendant's continued occupation of the Property.26 37 The plaintiff verily believes that the defendant has no reasonable defence and that there exists no triable issue of fact or law that would warrant the matter proceeding to trial of the claim.27 The defence and counterclaim filed on 15 January 2026 38 The defendant accepts some basic facts, including Liam's appointment as Mario's plenary administrator and his own occupation of the Property, but denies that the plaintiff has an unfettered power to sell it. 39 The defendant's central position is that the SAT Orders require Mario's residency related interests and best interests to be preserved, and that the sale of the Property is unnecessary because Mario's financial needs could allegedly be met through aged care subsidies, means assessments and hardship assistance. 40 The defence asserts that the defendant has lived at the Property for more than 20 years under an arrangement intended by Mario to be permanent or lifelong. The defendant says he relied on that arrangement to his detriment, including by forgoing other housing opportunities and by providing years of full-time care, maintenance and protection for Mario and the Property. 23 SOC [12]; First Liam Psaila Affidavit [11] - [13]. 24 First Liam Psaila Affidavit [20]. 25 SOC [13]; First Liam Psaila Affidavit [19]. 26 SOC [14]; First Liam Psaila Affidavit [22], [24]. 27 First Liam Psaila Affidavit [25]. -- 10 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 11 41 The defendant denies that he is a trespasser, disputes the validity of the notice to vacate,28 and argues that the plaintiff has inconsistently characterised his occupation as a tenancy at will, tenancy in common, or licence. He also denies that Mario has suffered loss or that mesne profits are payable, contending instead that his occupation has reduced the estate's costs by providing security and maintenance. 42 By counterclaim, the defendant asserts a proprietary estoppel, alleging that Mario repeatedly promised him permanent residence in exchange for care and that it would now be unconscionable for the plaintiff to revoke that right. 43 The defendant further alleges a conflict of interest, saying the proceedings are being pursued for the collateral purpose of early estate liquidation and contrary to least restrictive alternative principles pursuant to s 4 of the Guardianship and Administration Act 1990 (WA). 44 The defendant seeks a declaration that he has an equitable life interest in the Property, a permanent injunction restraining sale until the administration order is reviewed and financial alternatives are properly explored, and costs against the plaintiff personally. 45 The defendant has not pleaded facts to support the broad conclusions asserted in his defence and counterclaim. Defendant's evidence 46 The defendant has adduced limited evidence to oppose the Application. He has done this because, he contends, the plaintiff has not filed a defence to his counterclaim. The defendant contends that the plaintiff, by not responding to the defence and counterclaim, has admitted his claim. He relies upon O 20 r 14 RSC which provides: 14. Admissions, traverses etc (1) Subject to subrule (4), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 15 operates as a denial of it. (2) A traverse may be made either by a denial or by a statement of non-admission. 28 Discussed at [50] of these reasons. -- 11 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 12 (3) Subject to subrule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement of non-admission of them, is not a sufficient traverse of them. (4) Any allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to be traversed unless specifically admitted. 47 The defendant contends that:29 8. The Plaintiff has filed no defence to the Counterclaim. The effect is twofold and substantive: 1. The Plaintiff is confined in its case theory and cannot now resile from those admissions. The facts of representation, reliance, detriment, and the unconscionability of departure are taken as established for the purposes of this proceeding. 2. The remaining issues are not capable of summary determination because they turn on the legal and equitable consequences of those admitted facts— precisely the type of evaluative exercise that Fancourt reserves for trial or contested hearing. 48 The difficulty for the defendant is that the only facts contained in the defence and counterclaim are those which he has admitted, for example, his occupation of the Property, and the SAT Order. The balance of the document consists of legal conclusions, such as that the defendant is a 'Protected Person' under the Aged Care Act 2024 (Cth), or denials, for example, denying that his occupancy is preventing the sale of the Property. 49 The Ben Psaila Affidavit consists of submissions about the background and procedural history of the matter, refers to the matters pleaded in the counterclaim, the SAT Orders (which are not in dispute), a 'Notice of Termination', an email about visitation arrangements for Mario, and conferral. 50 The 'Notice of Termination' is a Residential Tenancies Act 1987 (WA) 'Notice of Termination' requiring the defendant to vacate the 29 Defendant's further submissions filed on 17 July 2026 [8]. -- 12 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 13 premises by 1 October 2025. It has been completed in handwriting. The defendant deposes that this was sent to him by Liam, and that it was dated 19 August 2025. There is no other evidence on this point from either party. The document annexed to the affidavit consists of one page.30 It is not signed or dated, and the quality of the copy is poor, making it difficult to read. It does not contain any information which indicates who completed or signed the document. 51 A central plank of the defendant's response to the Application is that Mario had promised him he could live at the Property. He has put forward the following statements in that regard; they are not on affidavit (although the affidavit repeats the assertions made in the defence), but in the interests of fairness to the defendant, bearing in mind that he does not have the benefit of legal advice, I set them out: The Defendant admits he has occupied the Property for a period exceeding twenty (20) years. This residence was provided by [Mario] with the express intent that it be a permanent, lifelong arrangement, which the Defendant relied upon to his detriment by forgoing other housing opportunities.31 [Mario] made repeated promises to the Defendant over a period exceeding 20 years that his residence would be permanent in exchange for care.32 [Proprietary estoppel claim made] in the context of the Defendant's long-term residence at the Property and his support of [Mario] that induced the assumption that the Property would be the Defendant's permanent home or that he held a life interest or equivalent equitable interest; the Defendant's reasonable reliance on that assumption over more than 25 years…33 The plaintiff's submissions in support of the Application 52 The plaintiff submits that the defendant has no apparent or proprietary right nor possessory title to the Property and has no serious defence to the Application. 53 The plaintiff relies on Allen v Roughly34 and contends that an action for ejectment is nothing more than a contest between a plaintiff and a defendant as to their respective possessory titles to the one land, the one with the better title succeeding in the action or resisting it. If a 30 See Ben Psaila Affidavit, 'BLP-5', page 19. 31 Ben Psaila Affidavit, 'BLP-1' (Defence and Counterclaim) [3]. 32 Defence and Counterclaim [12]. 33 Defendant's further submissions filed on 17 July 2026 [7]. 34 Allen v Roughly (1955) 94 CLR 98, 110 (Dixon CJ). -- 13 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 14 defendant cannot show any title at all, then by this proven possession of that land to which they have no title, they prima facie trespass against the plaintiff by the same.35 54 Essentially, the plaintiff submits that an action for ejection turns on whether the defendant has a lesser possessory title to the Property to that of the plaintiff or instead has no title at all. 55 The plaintiff, through his lawyers, sent the Demand. The plaintiff submits that by the Demand, any personal right of the defendant to remain on the Property, whether express or implied, was revoked or extinguished from the time of the Demand, unless the defendant had a proprietary interest in the Property with a right to remain, or to possession of the same. In absence of such proprietary interest, the defendant is trespassing from the time of the Demand. 56 The defendant remains in possession of the Property without the consent of the plaintiff. 57 It is contended by the plaintiff that the defendant has not adduced any evidence which positively and sufficiently shows that the defendant has any proprietary interest in the Property. 58 The plaintiff refers to the defendant's claim of estoppel, which seeks to demonstrate a right of the defendant to permanent residency at the Property in exchange for care of Mario,36 and submits that the defendant has not substantiated such a claim in evidence. Further that, the defendant's claim, as pleaded, rises no higher than to plead a purely personal right to the Property and not a proprietary right. 59 In oral submissions, plaintiff's counsel submitted that the defence and counterclaim contained 'no factual certainty that can be responded to'. 60 The plaintiff submits that the defendant's evidence in response to the Application should not be accepted, because it is inherently improbable.37 61 Ultimately, the plaintiff contends that this is a clear case where summary judgment should be awarded, as there is a high degree of 35 Allen v Roughly (110). 36 Referring to the Defence and Counterclaim [12]. 37 Plaintiff's submissions filed on 7 May 2026 [4], citing to The Proimmune Company, LLC v Holista Colltech Limited [2026] WASC 112 [126] - [128] (Palmer J). -- 14 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 15 certainty as to the outcome on the pleadings, the evidence filed on the matter, and no material dispute to the facts of the case other than an unsubstantiated claim of estoppel. The defendant's submissions in opposition to the Application 62 The difficulty with the defendant's approach to evidence becomes apparent when his submissions are reviewed. 63 The defendant's first outline of submissions asserts:38 6. Pursuant to Order [20] Rule 14 of the Rules, every allegation of fact in a pleading that is not traversed is deemed to be admitted. The Plaintiff has therefore deemed admitted the following 14 material facts incorporated from the Defence into the Counterclaim: 1. The Defendant resided at [redacted] for over 20 years with Mario's full knowledge and consent; 2. Mario made express and implied representations that the Defendant could remain in the property permanently as his home; 3. The Defendant relied on these representations to his detriment by providing 24/7 care to Mario from approximately 2018 to December 2023; 4. The market value of the care provided by the Defendant exceeds $1,300,000 based on standard aged care rates; 5. The Defendant operated a handyman business earning approximately $1,300 per week ($67,600 per annum) which he gave up to provide full-time care; 6. The Defendant's lost business income from 2018-2023 totals approximately $338,000; 7. The Defendant performed extensive remedial works on the property valued between $22,500 and $33,000 at commercial rates; 8. The Defendant qualifies as a 'Protected Person' under Section 1118 of the Social Security Act 1991 (Cth) and Section 44-2 of the Aged Care Act 1997 (Cth); 9. The property at [redacted] is an 'exempt asset' under the aged care means test while the Defendant resides there; 38 Defendant's outline of submissions filed on 10 March 2026 [6]. -- 15 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 16 10. The cessation of Mario's Centrelink pension was caused by the Plaintiff's failure to file mandatory Centrelink Forms SA456/SA457 documenting the Defendant's Protected Person status; 11. The 'financial necessity' to sell the property was self-created by the Plaintiff's administrative negligence; 12. The Plaintiff commenced legal proceedings in September 2025 before any financial crisis materialised; 13. Mario's Centrelink funding was not actually cut until 23 December 2025 (Annexure LRP-5), three months after legal threats began; 14. The Plaintiff has stated his intention to sell the property in the 'immediate future' for estate liquidation purposes rather than Mario's best interests. 64 The only items in that list which are material facts are not in contest and have a neutral effect: (a) The defendant resided at the Property; (b) The plaintiff commenced legal proceedings in September 2025; and (c) Mario's Centrelink funding was not actually cut until 23 December 2025. 65 All the other items listed as 'material facts' are assertions with no supporting evidence (such as the value of the home, the defendant's business activities) or legal conclusions (such as that the defendant is a 'Protected Person' or that the Property is an 'exempt asset). 66 In any event, those 'material facts' are not pleaded in the defence and counterclaim. They cannot, therefore, be incorporated for consideration in the Application. 67 The defendant contends that the 'material facts' give rise to multiple triable issues:39 39 Defendant's outline of submissions filed on 10 March 2026 [15]. -- 16 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 17 15. The Defendant pleads and will prove proprietary estoppel based on: - Representation/Assurance: Mario made clear representations over 20 years that the Defendant could live in the property permanently as his home (deemed admitted - para 6(i) and (ii) above); - Reliance: The Defendant relied on these representations by remaining in the property, forgoing alternative accommodation, and dedicating his life to Mario's care (deemed admitted - para 6(iii)-(vii) above); - Detriment: The Defendant suffered substantial detriment totaling over $1.6 million in care services, lost business income, and property improvements (deemed admitted - para 6(iv)-(vii) above); - Unconscionability: It would be unconscionable to allow the estate to benefit from the Defendant's 20 years of care and property improvements while simultaneously evicting him. 68 Once again, the difficulty is that there is no evidence to support any of these submissions. 69 The further submissions filed on 17 July 2026 repeat the same general contentions, although in greater detail. They do not advance the defendant's position. 70 The defendant relies upon the 'Notice of Termination' to submit that the plaintiff is estopped from denying that a formal lease exists. Determination 71 I accept the plaintiff's submission that the defence and counterclaim do not contain any factual certainty to which the plaintiff could respond. The plaintiff's failure to respond to the defence and counterclaim does not have the effect for which the defendant contends. The ultimate effect of the defendant's approach to supporting evidence is that the only evidence for consideration in the Application is that relied upon by the plaintiff. 72 That evidence establishes that the defendant began to live with Mario in 2001, when he was about five years old. The defendant is now 29 years old. He has put before the court evidence or submissions that he has lived at the Property for either 20 or 25 years. -- 17 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 18 73 The defendant contends that Mario made representations to him about where he could live, referring to his 'reasonable reliance over 25 years' (or 20 years - the evidence and submissions are not consistent on this point).40 On the alleged representations, the defendant asks the court to accept that his grandfather made representations to him, from when the defendant was a young child, about his continued occupation of the Property, and the terms upon which that could occur. 74 This is inherently improbable, and I do not accept that evidence. 75 I accept that the defendant has lived at the Property for most of his life. 76 I accept that Liam was aware of the defendant's occupation of the Property, as is evident from the SAT Orders. 77 I accept that Liam was verbally advised by Centrelink in September 2025 that Centrelink would review Mario's aged care funding, and that this was formally communicated by way of letter in December 2025. The defendant points to this as evidence that Liam had caused the 'financial emergency'. I do not accept this submission. I take judicial notice that Centrelink is a large Commonwealth government department and that matters such as aged care funding reviews can take time. I note also that Liam's evidence is that in September 2025 he was told that funding would be reviewed 'in the near future' which is consistent with the confirmation three months later. 78 Despite receiving the notice apparently issued under the Residential Tenancies Act, the defendant remained at the Property. Even if I accept that Liam sent that document, it goes no further than to say that at that time, Liam thought there was a lease (which is not determinative of the issue, although relevant) and/or that the effective legal method to have the defendant vacate the Property was to send that notice. The notice, without more, does not estop the plaintiff from denying the existence of a lease. 79 Apart from assertions that representations were made, no evidence has been adduced about the timing, nature or content of those representations, or as to the detriment allegedly suffered by the defendant as a result of reliance upon them. I note, for clarity, that the defendant has made submissions about what was said, and what he did, but no evidence as to that has been filed. 40 Defendant's further submissions filed on 17 July 2026 [10]. -- 18 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 19 80 It is clear, from the SAT Orders, that the defendant was living in the Property with no guarantee of any ongoing residence. The SAT Orders are inconsistent with the defendant having any proprietary right or interest in the Property. The SAT Orders call his residence '[an] arrangement [which] can only continue for as long as the represented person's financial needs are met, and it continues to be in his best interests'.41 (emphasis added) 81 The defendant has not demonstrated that he has any proprietary right or interest in the Property. Accordingly, the plaintiff has established a superior title and the application for summary judgment must succeed, and the counterclaim be dismissed. Conclusion and orders 82 The plaintiff seeks costs on an indemnity basis. I do not consider that order appropriate in the circumstances and the usual order as to costs will be made. 83 Subject to hearing from the defendant, I propose to make the following orders: 1. The plaintiff has leave to bring the Application pursuant to O 14 r 1 RSC, the time for which is extended to the date of filing, 20 February 2026. 2. Pursuant to O 14 r 3 RSC, summary judgment be entered for the plaintiff against the defendant for the plaintiff’s claim for possession of property. 3. By 15 September 2026, the defendant is to give and deliver up to the plaintiff vacant possession of the land and property at [redacted] being Lot 1 on Strata Plan 24887, which is part of the land in Certificate of Title Volume 1973 Folio 339. 4. The defendant's counterclaim is dismissed. 5. The defendant is to pay the plaintiff's costs of the Application, to be taxed if not agreed. 6. The parties have liberty to apply to list the matter for directions. 41 SAT Orders [4]. -- 19 of 20 -- [2026] WASC 342 ACTING MASTER GRIFFIN Page 20 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Acting Master Griffin 18 AUGUST 2026 -- 20 of 20 --