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Alderuccio v Alderuccio

Alderuccio v Alderuccio

Case [2019] VSC 404 20 June 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2018 02028

ANTONIO ALDERUCCIO (a person under a disability by his Litigation Guardians RAFFAELLA EVANGELISTA and Carmela Guarino)	Plaintiff
v
FRANK ALDERUCCIO	First Defendant
MAREA LUISA FULFARO-ALDERUCCIO	Second Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2019
DATE OF JUDGMENT:	20 June 2019
CASE MAY BE CITED AS:	Alderuccio v Alderuccio
MEDIUM NEUTRAL CITATION:	[2019] VSC 404

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SUMMARY RECOVERY OF LAND – Application under order 53 – Plaintiff as registered proprietor of land permitted his son and daughter-in-law to occupy the land ‘for a time’ – Son claims his father said ‘you can have it’ or ‘you will get everything when I die’ – Son made improvements on the faith of the his father’s representation or promise – Father and son ‘fell out’ over attempts by son to put father into a nursing home – Father now suffering a disability and represented by litigation guardians, being father’s sister and friend who are appointed administrators for him – Father and administrators request son and daughter-in-law to leave the land – Son refuses and claims an interest in the land pursuant to a resulting implied or constructive trust and lodges a caveat to protect that claimed interest – Whether, assuming a constructive trust arises, it gives son possessory rights superior to the father – Whether in the interests of justice to make an order for recovery of possession – No order for possession – The son is arguably entitled to an interest in fee simple in the land pursuant to an equitable proprietary estoppel of the Dillwyn v Llewelyn (1862) De GF & J 517; 45 ER 1284, and Ramsden v Dyson (1866) LR 1 HL 129 kind – Giumelli v Giumelli (1999) 196 CLR 101; Donis v Donis (2007) 19 VR 577; Sidhu v Van Dyke (2014) 251 CLR 505 and McNab v Graham (2017) 53 VR 311, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K Mihaly	Local Lawyers
For the Defendant	Defendants in person

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background facts................................................................................................................................ 1

Procedural history.............................................................................................................................. 9

Order 53 – recovery of possession................................................................................................. 10

Self-represented litigants................................................................................................................ 11

Equitable proprietary estoppel...................................................................................................... 12

Submissions and consideration.................................................................................................... 14

Conclusion......................................................................................................................................... 18

HIS HONOUR:

Introduction

The plaintiff, who is an elderly disabled man, applies pursuant to ord 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) to recover possession of the land at 14 Pebble Beach Court, Sunbury, Victoria (Property).[1] The plaintiff is the sole registered proprietor of the Property. The Property is occupied by the plaintiff’s son Frank Alderuccio (Frank) and his wife, Marea Fulfaro-Alderuccio. Frank claims to be entitled to an interest in the Property, but is unrepresented and is unable properly to identify that interest.
[1]Being the land more particularly described in Certificate of Title 11229 Folio 254.

The proceeding has an unfortunate history going…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alderuccio v Alderuccio

Details

AGLC: Alderuccio v Alderuccio [2019] VSC 404
Case: [2019] VSC 404
Decision Date: 20 June 2019

CaseChat Overview and Summary

The case of Alderuccio v Alderuccio was heard in the Supreme Court of Victoria. The plaintiff, the registered proprietor of a parcel of land, had allowed his son and daughter-in-law to occupy the land for a period of time. The son claimed that the plaintiff had made representations or promises that the son would inherit the land, and he had made improvements based on those assurances. However, after a dispute between the father and son, the plaintiff, now suffering from a disability, sought to recover possession of the land from his son and daughter-in-law. The son lodged a caveat to protect his claimed interest in the land, arguing that he was entitled to an interest in the land based on a constructive trust or proprietary estoppel.

The court was required to determine whether the son was entitled to an interest in the land based on the alleged representations or promises made by the plaintiff. The court also had to consider whether, if such an interest did exist, it would give the son possessory rights superior to those of the plaintiff. Additionally, the court had to consider whether it was just and equitable to make an order for the recovery of possession of the land, given the son's claimed interest.

The court found that the son was arguably entitled to an interest in fee simple in the land pursuant to an equitable proprietary estoppel. The court noted that the son had relied on the alleged representations or promises made by the plaintiff to his detriment, and that it would be inequitable for the plaintiff to renege on those representations. However, the court also found that the son's interest did not give him possessory rights superior to those of the plaintiff, and that it was not just and equitable to make an order for the recovery of possession of the land at that time. The court therefore dismissed the application for summary recovery of the land.

The court did not make any orders for the recovery of possession of the land, but left the matter open for further consideration in the event of any future application by the plaintiff or the son. The case highlights the importance of clear communication and documentation in family disputes over property, and the potential consequences of making representations or promises that may be relied upon by others.

Orders