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

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.

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…

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 Campana v Censori

Details

AGLC: Campana v Censori [2023] VSC 502
Case: [2023] VSC 502
Decision Date: 25 August 2023

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