| 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…
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- AGLC
- Alderuccio v Alderuccio [2019] VSC 404
- Case
- [2019] VSC 404
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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