Boniel v Camilleri

[1999] NSWCA 362

CITATION:	BONIEL v CAMILLERI & ANOR [1999] NSWCA 362
FILE NUMBER(S):	CA 40830/98
HEARING DATE(S):	28 September 1999
JUDGMENT DATE:	28 September 1999
PARTIES :	Lorna Boniel - Appellant John & Mary Camilleri - Respondents
JUDGMENT OF:	Sheller JA; Stein JA; Fitzgerald JA

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	3240/96
LOWER COURT JUDICIAL OFFICER:	Bryson J

COUNSEL:	S L Walmsley SC/ M K Minehan - Appellant B A J Coles QC/ M A Ashhurst - Respondents
SOLICITORS:	McCabes - Appellant Church & Grace - Respondents
CATCHWORDS:	PROPERTY - whether transfer by oral agreement giving rise to a trust - no evidence
ACTS CITED:	N/A
CASES CITED:	N/A
DECISION:	Appeal dismisssed with costs

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40830/98
ED 3240/96

SHELLER JA
STEIN JA
FITZGERALD JA

Tuesday, 28 September 1999

BONIEL v CAMILLERI & ANOR

JUDGMENT

1    SHELLER JA: This is an appeal by Lorna Boniel against a decision given by Bryson J on 25 September 1998. In proceedings that the appellant had begun against the respondents, John and Mary Camilleri, his Honour on that date gave judgment for the defendants with costs. This is an appeal from that decision in which the appellant seeks to have orders made against the respondents to the effect that a share in land known as lot 59 Old Northern Road, Maroota, New South Wales is held by the respondents for the plaintiff as the adminstratrix and sole beneficiary in the estate of her late husband, Pius Camilleri.

2    In broad terms, the appellant alleged that there was an arrangement between her deceased husband and his father the respondent, John Camilleri, whereunder in return for a payment totalling $45,000, alleged to have been made by the deceased to Mr Camilleri on this account, an interest in the property would be left by the will of Mr Camilleri and by the will of the other respondent, his wife and the deceased’s mother, Mary Camilleri, to the deceased.

3    Conceptually, the claim has many problems. Mr Walmsley SC, who appeared for the appellant, carefully took the Court through the facts proved at the trial to demonstrate that Bryson J erred in the inferences that he drew from the evidence. It would be correct to say as his Honour found that there was no direct written or oral evidence to support the arrangement alleged.

4    We have listened carefully to the submissions that have been made on behalf of the appellant and with one exception, to which I will come, we are not persuaded that any error has been demonstrated in his Honour's reasons for judgment.

5    There is probably little doubt that at some stage before he died the deceased had discussions with his father about obtaining from his father and his mother a share in the property concerned. The property was held by the respondents and their two older sons, who are not parties to this appeal, as tenants in common in equal shares. However, whatever those discussions were, it is we think clear from the evidence that they never came to fruition in the sense that the respondents came under any obligation to the deceased in respect of their interests in the subject land.

6    The appellant relied upon evidence that two sums totalling $45,000 had been paid to the respondent, John Camilleri, as part of the arrangement for the share in the land to be transferred to or included in the will in favour of the deceased. His Honour said that it was not established to the point of probability that the two sums were actually paid to the respondent, nor had it been established that they were paid to him on any account which related to contemplated acquisition of a portion of lot 59.

7    The two payments were one of $25,000 and one of $20,000. We agree with what his Honour said about the payment of $25,000. The payment of $20,000 was evidenced by a bank cheque obtained by the deceased on his bank account and made out to John Camilleri. The appellant gave evidence of having been present when this was done and at the time that the bank cheque for $20,000 was handed to the respondent. On this evidence, she was not cross-examined.

8    Accordingly, we do not think it was correct for his Honour to say that in respect of that cheque of $20,000 it had not been established to the point of probability that it was actually paid to the respondent. However, we agree that it had not been established that it had been paid to the respondent on any account which related to the contemplated acquisition of a portion of lot 59.

9    As I have said, we are not persuaded that his Honour erred in any way in coming to the decision that he did and with the exception that I have mentioned the Court would adopt his Honour's reasons for judgment.

10    That being so, the appropriate course is that the appeal be dismissed with costs. That is the order of the Court.

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