Alberico v Di Nola (as Executor of the Will of Rosario Alberico deceased)
[2018] VCC 1212
•20 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
FAMILY PROPERTY LIST
Case No. CI-17-05011
| GINO ADAMO ALBERICO | Plaintiff |
| v | |
| ANNA DI NOLA (as Executor of the Will of Rosario Alberico deceased) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May and 4 June 2018 | |
DATE OF JUDGMENT: | 20 August 2018 | |
CASE MAY BE CITED AS: | Alberico v Di Nola (as Executor of the Will of Rosario Alberico deceased) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1212 | |
REASONS FOR JUDGMENT
---
Subject: CONTRACT
Catchwords: Parent unilaterally acquiring the plaintiff’s wages when the plaintiff was 15 to 20 years of age – wages applied to general family expenses including instalments under a mortgage over a property owned by the parents – whether the plaintiff and the parents intended to enter into an enforceable contractual relationship – later agreement said to be an acknowledgement of the contract executed by the parents – whether the parents were aware of the contents and purpose of the agreement
Subject: TRUSTS
Catchwords: Whether the parents held the wages of the plaintiff in trust – whether the later agreement said to be an acknowledgement of the contract constituted an acknowledgement of a constructive trust
Cases Cited:Thwaites v Ryan [1984] VR 65; Hohol v Hohol [1981] VR 22; Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137
Judgment: The plaintiff’s proceedings are dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr K E Mihaly | Eales & Mackenzie |
| For the Defendant | Ms E Ruddle | Sinisgalli Foster Legal |
HIS HONOUR:
Introduction
1 This proceeding is an unhappy tale of discord within an Italian family which has dissolved into a combative stance taken by a son against a daughter over the estate of their parents.
2 There are now competing claims, one by the son claiming an entitlement to at least 70 per cent of his parents’ estate based upon either an enforceable contract or a constructive trust. The other is by the daughter to whom probate was granted who wishes to uphold the last will of a parent which leaves 75 per cent of the estate to her, and the residue to the son and a sister.
The Alberico Family
3 Rosario Alberico and Angela Alberico were married. They are both deceased. They had four children. Gino (the plaintiff) is the eldest, born in 1956, then in descending order of age, Maria, born in 1959, Anna (the defendant), born in 1967, and Antonio, born in 1969, who died in a car accident in 1987 or 1989.
4 Rosario was fluent in both the spoken and written Italian language. He spoke broken English. He could neither read nor write English. Angela spoke Italian. She could neither read nor write Italian. She could not speak nor read or write English.
5 The Alberico family was a typical Italian Catholic family in which Rosario ruled the roost. That is very evident by the manner in which Rosario dictated to his children what he expected of them.
Gino’s evidence
6 I will start with Rosario’s relationship with Gino. Gino commenced work when he was about twelve years of age, working on his maternal aunt’s 33-acre farm. He worked on weekends and during his holidays. He did not say how many weekends he worked or how much of his holidays he gave to that work. His wages were given directly to Angela. He has not given any estimate of the wages he earned.
7 Gino next worked with Pasquale De Cesare from about the age of thirteen or fourteen years. He worked each day after school for about nine months. He helped Pasquale pick fruit, which was then taken to market. He was paid between $30 to $40 per week. He gave his wage to Angela. Again, he did not give any estimate of the amount of wages he earned.
8 Gino left school when he was fifteen years of age, which was about the age when he commenced work with Rocco Ripepi. Rocco ran a business selling fruit and vegetables at markets. Gino and Rocco said they worked very long hours over a six-day week. The work involved purchasing produce which was sold at market, and then using a truck to deliver what Rocco described as batts or false bricks or cement sheets. They estimated that they were sometimes working 20 to 22 hours per day. Rocco posed the question – someone might ask how he and Gino managed to work hours of that order? They were both taking tablets to keep themselves awake.
9 Both Gino and Rocco were cross-examined about the work which Gino undertook in the employ of Rocco and to test whether in fact Gino earned about $100 net per week, and later, $150 net per week. It was suggested to Rocco that it was a lot of money back in 1971 for a boy who was only fifteen years of age. Rocco’s explanation was that he had no real understanding of the requirements of an employer relevant to wage rates nor what the relevant wage rate was. I accept Rocco’s evidence that he paid Gino $100 net per week at first, and later, $150 net per week.
10 Gino gave his first wage he earned from his work with Rocco to Angela. When he asked Rocco for his next wage, Rocco told him that Rosario demanded that Rocco’s wage be paid to him. The only income which Gino received were other cash amounts given to him by Rocco. He sometimes gave him $10 extra and sometimes $20 extra. Gino said that sometimes he would him $50 extra.
11 The arrangement that saw Gino’s wage being paid directly to Rosario continued until Gino was about twenty years of age.
12 Gino approached Rosario at the family home when he was somewhere between seventeen to eighteen-and-a-half years of age. He told Rosario that he wanted to marry his girlfriend, Laura, and needed his wage. Rosario became uncontrollably angry. He left the room and returned with a loaded shotgun which he pointed at Gino. Gino ran from the house. He heard a shot fired from the shotgun. Understandably, his relationship with Rosario became strained, although, his relationship with Angela remained a stable one.
13 It was following the shotgun incident that Gino decided it was best not to revisit the issue of his wages. He married Laura in 1976, and I infer that whatever wage he earned then came into his hands, and the arrangement that Rosario orchestrated with Rocco came to an end. Gino worked with Rocco until he was about twenty years of age before taking up employment with the Melbourne Metropolitan Board of Works.
The purchase of Lilydale
14 When Gino was fourteen or fifteen years of age, Rosario and Angela purchased 17 Baker Street, Lilydale on 6 January 1970 for $11,250 (“the Lilydale property”). They paid a deposit of $500. The balance of the purchase monies were borrowed from the Commonwealth Savings Bank of Australia, secured by a mortgage over the Lilydale property. The term of the loan was twenty-five years, with monthly repayments of $48.
15 Gino said that Rosario and Angela told him that his wage effectively purchased the Lilydale property. In his affidavit sworn 14 June 2018, he said that Rosario and Angela acknowledged that to be the case:
“19. I never had a direct discussion with my parents about my pay. But, I was at home when I heard Rosario say the following things to visitors:
a. Gino helped him out; and
b. This is Gino’s.
…
25. It was during some of these occasions, that Rosario said to me something like “you have paid roughly 80% of the mortgage”. I cannot remember the specific words or occasions, but Rosario made that comment many times over the years. Angela made similar comments, but not as often … .”
16 Maria said that she stayed at home with Rosario and Angela and occupied herself looking after the household. She said that Rosario acknowledged that Gino had helped the family financially. Specifically, she recalls that being said relevant to “home payments” and in relation to “the family”. I assume the latter means contributing to the family’s domestic needs.
17 It was on the basis of this evidence that it was ultimately submitted by Gino that he had a common understanding with Rosario and Angela that his wage was used to repay the mortgage. The alleged common understanding became central to his case.
The agreement in writing
18 Gino was led to understand from Rosario and Angelo that his sister, Anna, and her husband, wanted to acquire the Lilydale property for the purpose of developing it. An allegation which Anna denied. Gino’s understanding of what Anna and her husband were up to precipitated a conversation with Rosario and Angela on 15 April 2015. Gino informed Rosario and Angela something to this extent - “I could go to my lawyer and then take the matter to court or we could put something on paper between us”. Gino then said that there was something of an accord between himself and Rosario and Angela. It was agreed that he would prepare an agreement by which they would acknowledge that they were parties to an enforceable contract. Gino told them that, as part of that acknowledgement, he intended to place a caveat over the Lilydale property which would prevent his sister and her husband from dealing with the Lilydale property.
19 Gino prepared an agreement in writing dated 16 April 2015. He went to the Lilydale property accompanied by Giuseppe Damiani (“Joe”), who is Rosario and Angela’s nephew. The agreement he produced is as follows (“the written agreement”):
“I ROSARIO ALBERICO OF 17 BAKER STREET, LILYDALE, VICTORIA, 3140 do sincerely declare that:-
MY WIFE ANGELA ALBERICO AND I APPOINT OUR SON GINO ALBERICO SOLELY RESPONSIBLE FOR THE SALE OF OUR FAMILY HOME AFTER WE HAVE BOTH PASSED AWAY.
MY SON GINO ALBERICO PAID THE MORTGAGE ON OUR PROPERTY FROM 1971 TO 1975. MY WIFE ANGELA ALBERICO AND I BELIEVE OUR SON’S CONTRIBUTIONS TO OUR MORTGAGE MAKES UP FOR 80% OF THE MORTGAGE REPAYMENTS. WE THEREFORE WISH TO DISTRIBUTE THE FUNDS FROM THE SALE OF THE PROPERTY IN THE FOLLOWING MANNER;
GINO ALBERICO 70%
MARIA ALBERICO 15%
ANNA DI NOLA 15%
THIS DECLARATION IS MADE OF SOUND MIND, IN GOOD HEALTH, AND OF MY OWN FREE WILL, AND SHOULD NOT BE MADE REDUNDANT BY ANY EXISTING OR FUTURE WILL OR TESTAMENTS.
MY WIFE ANGELA ALBERICO AND I ALSO UNDERSTAND THAT OUR SON GINO ALBERICO WILL PLACE A CAVIET (sic) ON OUR FAMILY HOME AT 17 BAKER STREET, LILYDALE VICTORIA TO PROTECT IT FROM ANY SALE OR TRANSFER OF TITLE TO ANY OTHER MEMBER OF THE FAMILY.
THIS STATEMENT WAS EXPLAINED AND WITNESSED BY OUR NEPHEW JOE DAMIANI, OF 45 VICTORIA ROAD, LILYDALE, 3140.”
20 The written agreement bears the signatures of Rosario and Joe and a cross applied by Angela. I will return to the circumstances of their signing of the written agreement later in these Reasons.
21 Gino subsequently lodged a caveat on the title of the Lilydale property on 24 April 2015. Noted on the caveat are grounds of claim in support of lodging of the caveat as an implied, resulting or constructive trust. There is no reference to a binding contractual arrangement. Although a point was made by Anna that the grounds of claim did not include an enforceable contract, I do not think much turns on what was drafted on the caveat.
22 It was my impression from the thrust of Gino’s evidence that he alleges that Rosario and Angelo were not in a particularly sound financial state. They needed his wage to meet their household expenses which probably included meeting the instalments under the mortgage and general domestic expenses.
Anna’s evidence
23 Anna gives a different version of Rosario and Angela’s financial circumstances altogether. Anna remembers that when she was a child that Rosario worked as a gasfitter for the Gas and Fuel Corporation. He worked in that occupation until he was fifty-five years of age when he retired. Gino also worked for the Gas and Fuel Corporation between 1983 and 1988/1989. He said that Rosario was not a gasfitter, but a labourer. He recalls picking Rosario up in the mornings and taking him to work and working with him.
24 Other than the recollections of Gino and Anna regarding the occupation which Rosario followed with the Gas and Fuel Corporation, there is little evidence of what other occupations Rosario followed after arriving in Australia up to the time of his retirement. There is also little evidence of the wages he earned. He was probably fully employed, if not for the whole of that period, at least for a substantial proportion of it. He probably earned the same wage as Gino did when they both worked for the Gas and Fuel Corporation. The best evidence was Gino’s estimate that Rosario earned somewhere around $53 to $56 net per week.
25 When Anna left school at sixteen years of age, she worked part time in a delicatessen before obtaining full-time employment at about eighteen years of age. She earned $297 net per week when she worked full time. She gave Rosario and Angela about $100 per week from her wage. She kept the balance of her wage for own use. When she married, Rosario and Angela returned the whole of the wages that she had given them.
26 It was her impression that Rosario and Angela were frugal. They did not have any problems paying their bills. They did not complain about any lack of money in her presence nor did she recall them doing so in the company of anyone else.
27 At the time when Anna obtained probate of Angela’s will, Rosario having predeceased her, the Lilydale property was unencumbered. The inventory of assets and liabilities discloses that as at December 2016, the Lilydale property was valued at $600,000. There was cash in the sum of $43,307.73 in a Commonwealth bank account.
28 The inventory of assets demonstrates that Rosario and Angela were frugal. They managed to not only obtain a discharge of the mortgage over the Lilydale property, but to meet all of their general expenses and save a not inconsiderable sum of money given the relative modesty of Rosario’s earning capacity.
The family discord
29 Regrettably, it is necessary to recount some of the episodes of the family discord because of the stark contrast in the evidence regarding Gino’s relationship with Rosario and Angela at times relevant to his causes of action and the reliance placed on those episodes by Gino and Anna.
30 After the shotgun incident, Gino’s relationship with Rosario was strained, although, he says it improved over time. His relationship with Angela remained stable. He says that he saw his parents once a week, but as a result of his own work and family commitments, he probably saw them once a month up until they died. He nevertheless spoke to Angela a few times a week by telephone.
31 Anna paints a very different picture. She remembers that in about 1980, when she was twelve or thirteen years of age, there was a falling out between Gino and Rosario and Angela. She did not see Gino, his wife nor his children for about seven years. She says that he did not attend the Lilydale property during that time, even for Christmas, birthdays and other family events.
32 It was after the tragic death of Anthony in 1987 or 1989 that there was some level of reconciliation. Gino was working in Queensland at around that time, but he did attend family occasions such as Christmas and other family events.
33 Anna recounted a further falling out between Gino and Rosario and Angela some time in 1998. She says she did not see Gino, his wife nor his children until some time around 2004. I assume that if she did not see Gino during this period, nor did Gino see Rosario and Angela.
34 Specifically in relation to the allegation made by Gino that he gave Rosario and Angela his wages, Anna says that Rosario told her that Gino had never given him a cent, which is something she heard him say repeatedly.
35 The next incident involved Anna lending Gino $2,000 to assist him with paying his gambling debts. She told Rosario that she had lent him money for that purpose, which resulted in him becoming very angry. Gino denies being a gambler of any sort, and indeed, says that the first occasion he laid a bet was when he was thirty years of age.
36 The next incident occurred some time in early 2015. It centred around Angela returning to the Lilydale property from a nursing home. Maria’s daughter, Diana, and her husband, Max, were living at the Lilydale property. There was an argument between Anna and Diana which led to Diana and Max moving out of the Lilydale property. They were picked up by Gino. At the time that he did so, Rosario confronted him and told him never to come back to the Lilydale property. I assume that Rosario behaved this way because he was unhappy that Gino appeared to be taking sides with Diana and Max or was sympathising with their predicament.
37 Anna took over the role of carer for Rosario and Angelo for some years before they died. She was at their home nearly every day. She does not recall Gino visiting Rosario and Angela on 15 or 16 April 2015, nor does she remember Joe accompanying him when he visited him on 16 April 2015.
38 Alicia De Nola is Anna’s daughter. She was particularly close to Rosario. She recalls him saying on many occasions that Gino was “no good”, that he was disappointed with Gino, and that Gino “he never helped me out”.
39 The allegations made by Gino and the counter allegations made by Anna demonstrate very clearly that their level of discord and unhappiness with each other created a deep division between them. The attack made by one against the other is pregnant with suspicion of their motives in their dealings with Rosario and Angela.
40 On the one side, Gino’s motivation in obtaining the written agreement was because of his allegations that Rosario and Angela were suspicious of the motives of Anna and her husband. On the other side, Anna says Rosario was very unhappy with Gino, leading him to say to both Anna and Alicia that Gino had never been of any assistance to him and Angela.
41 The truth of what Rosario and Angela thought of their children will never be known. Cases such as this, where parties ascribe statements of positions occupied by persons who are deceased pose enormous, and sometimes insurmountable, difficulties to trial judges in attempting to determine what probably occurred. I think that is made very clear in an authority to which I will refer shortly.
42 As the evidence stands, I have found it nearly impossible to divine from it whose evidence I should accept relevant to the family dynamic, and in particular, the causes of the discord, unhappiness and division in this family, and what motives, if any, Gino and Anna have, and in what manner their motivations have infected their evidence of what they heard Rosario and Angela say about matters relevant to this proceeding.
The pleadings
43 In paragraph 6 of the Statement of Claim, Gino pleads that he entered into an agreement with Rosario and Angela that he would be entitled to 70 per cent of the proceeds of sale upon the settlement of the Lilydale property.
44 The particulars sub-joined to paragraph 6 which are relevant state that the written agreement was partly written, partly oral and partly to be implied. Insofar as it was oral, it is said to have occurred in various discussions from 1971 to at least 2015. Insofar as it was in writing, the written agreement dated 16 April 2015 is described as an “acknowledgement” and not the whole of the agreement. The defendant served a Request for Further and Better Particulars. I do not think the Further and Better Particulars add much, because after some initial and unfortunate skirmishing on days one and two of the trial, I ordered that the evidence of the relevant witnesses be reduced into affidavit form.
45 In paragraph 12, the plaintiff pleaded the briefest allegations that there was an implied, resulting or constructive trust. He ultimately submitted that the circumstances relevant to the relationship between the plaintiff and Rosario and Angela gave rise to a constructive trust. It was not put as an alternative but as a conclusion equally open on the evidence.
46 The defendant denied the whole of the material allegations made by the plaintiff in his Statement of Claim that there was an enforceable contract or that the circumstances of the relationship between the plaintiff and Rosario and Angela could give rise to a constructive trust. The Defence is a bald defence without particulars.
47 In the course of Anna’s cross-examination of Gino, it was put to him that the circumstances relevant to the execution of the written agreement never occurred. In Anna’s final address, it was submitted that the circumstances giving rise to the execution of the written agreement were attended by fraud. I called upon Anna to file and serve an amended defence particularising the allegations of fraud. In the end I disallowed the application for the amendment. It occurred to me that really what Anna was alleging was that Gino had not discharged the burden of proof he bears to prove the written agreement.
A contract?
48 I am not satisfied that the facts relied on by Gino support a conclusion that resulted in an enforceable contract at the suit of Gino.
49 It is a case based on the most unsatisfactory and equivocal evidence – firstly, the acquisition by Rosario and Angela of Gino’s wages; secondly, Rosario and Angela being overheard in conversation with visitors that Gino had helped the family out; thirdly, that the house was his, and lastly, reference to how much of the mortgage had been paid from his wages.
50 The formation of a contract does require sufficient formality so that an examination of the conduct of the parties demonstrates an intention by them to enter into a binding contractual relationship. It is trite to say that there must be an offer and acceptance, consideration, an intention to create legal relations and certainty of the terms of the contract. Essentially, Gino says that in some way all of this occurred and can be identified with some particularity and certainty from what occurred from when he was fifteen years of age to when he was twenty years of age.
51 Gino has attempted to reconstruct from the events which occurred from when he was fifteen years of age to when he was twenty years of age to fit what is required to demonstrate the existence of an enforceable contract. The burden borne by Gino in these circumstances is a substantial one, as was observed in the observations made by Fullagar J in Thwaites v Ryan:[1]
“ It is obvious, as the learned Judge himself observed, that a substantial burden is shouldered by a plaintiff who seeks to establish, after the death of the other party, an oral contract which is said to have been made between the plaintiff and the other party in the absence of any other persons, and by which it is said that the now deceased party agreed to leave valuable property by will to the plaintiff or to transfer property to the plaintiff and others. In the first place, it is impossible in such a case to hear what the other party to the alleged conversation has to say either as to its existence or its terms. Secondly, it is possible for the plaintiff (and any other beneficiary of the alleged contract) with or without dishonesty to give of events occurring many years ago a reconstruction which accords with later events but which the other party is in no position to deny or correct. It is obvious that, in all such cases, the evidence must be very carefully examined, not only from the point of view of arriving at some conclusion as to its honesty and reliability and probability, but also from the point of view of arriving at its proper construction and significance.”
[1][1984] VR 65 at 78-79
The status of the written agreement
52 I am also not satisfied that I should accept that the written agreement was executed by Rosario and Angela with full knowledge of its contents and its purpose.
53 What precipitated Gino drafting the written agreement was a discussion he had with Rosario and Angela on 15 April 2015 relevant to the allegation that Anna’s husband was planning to develop the Lilydale property. He was accompanied by Joe on 16 April 2015 for the purpose of Joe interpreting the contents of the written agreement and explaining its purpose to them.
54 The agreement bears the signature of Rosario, a cross representing Angela’s mark, remembering that she was illiterate, and the signature of Joe as a witness.
55 Joe gave evidence. It was very evident to me that he had practically no comprehension of why he was giving evidence. He was unable to grasp the fact that he was being asked to identify the affidavit he swore on 7 June 2018, a little over a month before the commencement of the trial. He was unable to answer relevant questions asked of him whether he interpreted the contents of the written agreement to Rosario and Angela and explained its purpose to them.
56 Gino was present when Joe spoke to Rosario and Angela about the content and purpose of the written agreement. He stood some distance away from Joe, Rosario and Angela while Joe spoke to them. So, there is no corroborative evidence of what he said to them, how he said it to them and whether they acknowledged they understood the content and the purpose of the written agreement.
57 I am not satisfied that the transcript adequately captures how he gave answers to questioning of him, and obviously it does not capture his demeanour while he was giving evidence. The questions asked of him relevant to whether the contents of his affidavit were true and correct were not answered by him directly. He merely answered by identifying his signature on the affidavit. He did not appear to me to understand what he was being asked.
58 No evidence was adduced to demonstrate whether Joe had any better comprehension at the time when the agreement was executed. What I am left with is very serious doubt concerning the reliability of his evidence, and whether in fact he adopted, and was capable of adopting, the contents of his affidavit as being true and correct.
59 The consequences of the conclusion I have just reached is that there is no evidence which satisfies me that Rosario and Angela understood the content and the purpose of the written agreement. The only person who could satisfy me of that was Joe.
60 I should deal with an important attack made by Anna on the creation of the written agreement. She submitted that the events of 15 and 16 April 2016 did not occur. The only evidence consistent with that is that she visited Rosario and Angela every day at around that time. She did not see Gino on either day or Joe on 16 April 2016. The upshot of her attack is that the written agreement is a concoction.
61 The evidence raises a suspicion that Gino had a motive in enshrining into a written agreement his assertion that there was an enforceable contract arising out of the events which occurred from when he was fifteen years of age to when he was twenty years of age. Anna’s attack, and the basis for it, does not persuade me that Gino did not visit his parents on 15 April 2016, and also on 16 April 2016 with Joe. It also does not persuade me that Rosario, Angela and Joe did not apply their signatures to the written agreement.
A constructive trust?
62 Based upon the same reasoning, I am not satisfied that Gino has established that Rosario and Angela held 70 per cent of the value of the Lilydale property on trust for him.
63 A summary of what is required to establish a constructive trust was articulated by O’Bryan J in Hohol v Hohol:[2]
“ From the cases I have referred to it can be said that the essential elements of the trust are, first, that the parties formed a common intention as to the ownership of the beneficial interest. This will usually be formed at the time of the transaction and may be inferred as a matter of fact from the words or conduct of the parties. Secondly, that the party claiming a beneficial interest must show that he, or she, has acted to his, or her, detriment. Thirdly, that it would be a fraud on the claimant for the other party to assert that the claimant had no beneficial interest in the property. … .”
[2][1981] VR 221 at 225
64 The common intention referred to in Hohol does not mean that the constructive trust must be founded upon an actual intention. That was made clear enough in Muschinski v Dodds[3] and Baumgartner v Baumgartner.[4] The observations of Deane J in Muschinski were cited with approval in Baumgartner in the context of the application of the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them:
“… 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 money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.”
[3](1985) 160 CLR 583 per Deane J at 616
[4](1987) 164 CLR 137 per Mason CJ, Wilson and Dean JJ 148
65 The evidence does not establish the essential elements of a constructive trust. There was no common intention or a substratum of a joint relationship or endeavour on the part of Gino, Rosario and Angela as to the ownership of the beneficial interest of the Lilydale property which can be inferred from the words or conduct of Gino, Rosario and Angela.
66 It is important to repeat at this point the conclusions I have reached that Rosario unilaterally acquired Gino’s wages. At the time when that occurred, there was no common intention, there was no joint intention or endeavour.
Conclusion
67 In the circumstances, I am neither persuaded that there is enforceable contract or a constructive trust. Therefore, the plaintiff’s proceeding must be dismissed with costs.
- - -
0
3
0