Campana v Censori

Case [2023] VSC 502


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 03564

Tony Campana Plaintiff
v 
Elenia Censori Defendant

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JUDGE:

McDonald J

WHERE HELD:

Melbourne

DATE OF HEARING:

13-16, 19-23 June, 20 July 2023

DATE OF JUDGMENT:

25 August 2023

CASE MAY BE CITED AS:

Campana v Censori

MEDIUM NEUTRAL CITATION:

[2023] VSC 502

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TRUSTS — Express trust — Certainty of subject matter — Trust deed provided for defendant to hold property for the benefit of the plaintiff — Whether defendant held a mere expectancy — Plaintiff’s claim to enforce express trust fails because defendant was not the owner of property the subject of the trust when the trust deed was executed.

TRUSTS — Resulting trust — No interest under a resulting trust from failure of express trust because plaintiff did not hold any beneficial interest in property which could revert to him on failure of express trust — No presumption of resulting trust from plaintiff’s contribution to purchase of property in circumstances where trust deed evidenced the intention of the plaintiff and defendant to create a trust.

TRUSTS — Constructive trust — Common intention of plaintiff and defendant that plaintiff would be beneficial owner of the property — Plaintiff detrimentally relied upon common intention by paying purchase price of property — Defendant engaged in equitable fraud by failing to honour common intention.

ESTOPPEL — Deed estoppel — Instrument of transfer of land operated as deed between parties — Whether plaintiff estopped from leading evidence that he purchased the property the subject of the transfer of land — Transfer of land instrument did not constitute an unambiguous statement that the defendant had paid the full purchase price of the property — Plaintiff not estopped from leading evidence that he paid purchase price of property.

Transfer of Land Act 1958 s 40(2), Transfer of Land Amendment Act 2014 s 10, Evidence Act 2008 s 48(4).

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APPEARANCES:

Counsel Solicitors
For the Plaintiff G Parncutt Kiatos & Co
For the Defendant B Carew Velos Lawyers

HIS HONOUR:

Introduction

  1. In this proceeding the plaintiff Mr Tony Campana claims for a declaration of trust over property situated at 160 Union Street, Brunswick (‘160 Union Street’).  The current registered proprietor of 160 Union Street is Mr Campana’s sister, Ms Elenia Censori, the defendant.

  1. The events relating to the proceeding span nearly two decades.  In 2005, Mr Campana was involved in the development of 160 Union Street and the adjoining lot at 162 Union Street as an owner-builder.  Mr Campana alleges that in early 2005 he was told that he would be unable to obtain building permits for both properties owing to a restriction on permits for owner-builders.  Mr Campana claims that, to circumvent this permit restriction, he entered into an agreement with Ms Censori under which she would be registered on the title of 160 Union Street and hold the property for his benefit.  Mr Campana alleges that in 2005 he and Ms…

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Campana v Censori [2023] VSC 502
Case
[2023] VSC 502
Decision Date

CaseChat Overview and Summary

The dispute in Campana v Censori concerned the interpretation of an express trust and the implications of the failure of that trust. The plaintiff, Campana, sought to enforce an express trust that was intended to be created over a property held by the defendant, Censori. The core issue was whether the trust was validly established and enforceable, given that the defendant did not own the property when the trust deed was executed. The court was also tasked with determining if a resulting trust arose from the failure of the express trust, or if a constructive trust should be imposed due to the parties' common intention and the plaintiff's detrimental reliance.

The court ruled that the express trust could not be enforced because the defendant did not hold the property as the subject matter of the trust at the time the trust deed was executed. Consequently, the defendant was not in a position to create a trust over the property. The court further determined that no resulting trust could arise because the plaintiff did not hold any beneficial interest in the property that could revert to him upon the failure of the express trust. Additionally, the court found that there was no presumption of a resulting trust based on the plaintiff’s contribution to the purchase of the property, as the trust deed clearly evidenced the intention of both parties to create an express trust.

The court held that the plaintiff was not estopped from leading evidence that he had paid the full purchase price of the property. The transfer of land instrument did not constitute an unambiguous statement that the defendant had paid the full purchase price, and thus did not operate as a deed estoppel preventing the plaintiff from providing such evidence. The court found that the defendant had engaged in equitable fraud by failing to honour the common intention that the plaintiff would be the beneficial owner of the property. This finding led to the conclusion that a constructive trust should be imposed in favour of the plaintiff.

The court ordered that a constructive trust be imposed in favour of the plaintiff over the property, recognising him as the beneficial owner. The defendant was directed to account for the proceeds from the sale of the property, with any net proceeds after costs being paid to the plaintiff.

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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