Legal Research
Cases
Buono v Mazzella

Buono v Mazzella

Case [2016] NSWSC 659 26 May 2016

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Buono v Mazzella [2016] NSWSC 659
Hearing dates: 26, 27, 28 & 29 April 2016
Date of orders: 26 May 2016
Decision date: 26 May 2016
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
Judgment:

(1) It is adjudged that the plaintiff/first cross defendant have possession of the property described in paragraph 1 of the statement of claim.

The Court orders that:

(2) The cross claim is dismissed.

(3) The cross claimant is to pay the first cross defendant’s costs of the cross claim.

(4) The defendant is to pay the plaintiff’s costs of these proceedings to date.
(5) Paragraphs 3 and 4 of the statement of claim are listed for directions before the Registrar at 9.00 am on Tuesday, 26 July 2016.
Catchwords:
REAL PROPERTY – possession of land – defendant resided in upstairs apartment – property owned by former mother in law – defendant only entitled to remain on property until adult children grew up and left – plaintiff entitled to possession
REAL PROPERTY – possession of land – defendant claims equitable or contractual relief in cross claim – resulting trust – constructive trust – equitable lien – equitable charge – proprietary estoppel – estoppel by conduct and promissory estoppel – contractual relationship entitling defendant to live on property forevermore – defendant did not establish factual bases for cross claim – cross claim dismissed
Cases Cited: Balfour v Balfour [1919] 2 KB 571
Calverley v Green (1984) 56 ALR 483
Cohen v Cohen (1929) 42 CLR 91
Jones v Padavatton [1969] 2 All ER 616
Muschinski v Dodds [1985] HCA 78; 160 CLR 583
Shepherd v Doolan [2005] NSWSC 42
Smilevska v Smilevska (No 2) [2016] NSWSC 397
The Commonwealth v Verwayan (1990) 170 CLR 394
Waltons Stores (Interstate) Ltd v Maher (1988) 76 ALR 513
Young v CAN 081 162 512 [2005] NSWSC 139
Texts Cited: JD Heydon and J Lehane, Jacobs’ Law of Trusts in Australia, (7th ed 2006, LexisNexis Butterworths)
Category: Principal judgment
Parties: Maddalena Buono (Plaintiff/First Cross Defendant)
Porfirio Mazzella (Defendant/Cross Claimant)
Julie-Anne Williams aka Nancy Buono (Second Cross Defendant)
Representation:
Counsel:
G Turner (Plaintiff/Cross Defendant)
Solicitors:
CKB Associates Lawyers (Plaintiff/Cross Defendant)
P Mazzella (Defendant/Cross Claimant in person)

File Number(s): 2015/137381
Publication restriction: Nil

Judgment

HER HONOUR: The plaintiff seeks possession of property (an upstairs flat) at XXX Road Willoughby. The defendant, her now ex son-in-law, remains in occupation together with his current wife and her child. He has cross claimed against the plaintiff seeking to remain in possession and other relief.
The plaintiff/first cross defendant is Maddalena Buono. The defendant/cross claimant is Porfirio Mazzella. The plaintiff, Salvatore Di Costanzo (the plaintiff’s partner), Luigi Balestriere, Madeline Mazzella (the defendant’s youngest) daughter and the defendant have all filed affidavit evidence. Julie-Anne Williams, also known as Nancy Buono and Nancy Williams, is the plaintiff’s (adopted) daughter, the ex-wife of the defendant and the mother of Madeline Mazzella. For ease of understanding and without meaning any disrespect, I shall…

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 Buono v Mazzella

Details

AGLC: Buono v Mazzella [2016] NSWSC 659
Case: [2016] NSWSC 659
Decision Date: 26 May 2016

CaseChat Overview and Summary

The matter of Buono v Mazzella involved a dispute over possession of a property, which was owned by the plaintiff's mother, the former mother-in-law of the defendant. The defendant had been residing in an upstairs apartment within the property, which was originally intended for the defendant's occupation until the plaintiff's adult children left home. The plaintiff sought a declaration of entitlement to possession of the property, while the defendant sought various forms of equitable or contractual relief in a cross claim. The legal issues the court needed to address included the nature and extent of the defendant's rights in the property and whether the defendant's cross claim for equitable or contractual relief was substantiated.

The court examined the relationship between the parties and the circumstances surrounding the defendant's occupation of the property. It was established that the defendant was initially granted the right to reside in the property until the plaintiff's adult children left home. The court considered the various forms of equitable and contractual relief sought by the defendant, including resulting trust, constructive trust, equitable lien, equitable charge, proprietary estoppel, estoppel by conduct, and promissory estoppel. However, the court found that the defendant had not provided sufficient evidence to establish the factual basis for any of these claims. Consequently, the court dismissed the defendant's cross claim and ruled in favour of the plaintiff, declaring that the plaintiff was entitled to possession of the property.

The court's decision was based on the clear understanding that the defendant's occupation of the property was contingent upon the plaintiff's adult children residing there. Once those children left home, the defendant's right to remain on the property ceased. The court held that the defendant had not demonstrated any valid grounds for seeking equitable or contractual relief, and therefore, the plaintiff was entitled to take possession of the property. The court's ruling effectively resolved the dispute in favour of the plaintiff, ensuring that the property was returned to its rightful owner.

Orders