Cirillo v Manieri - [2013] VSC 399

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010 03980

RITA CIRILLO	Plaintiff/Defendant by counterclaim
v
FRANK MANIERI and GELSOMINA COMANDE	Defendants/Plaintiffs by counterclaim

---

JUDGE:	RANDALL AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23-25, 27 January 2012
DATE OF JUDGMENT:	7 August 2013
CASE MAY BE CITED AS:	Cirillo v Manieri & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 399

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr J. S. Glover	Clayton Utz
For the Defendant	Mr P. L. Ehrlich	MAE Lawyers

HIS HONOUR:

Introduction

In this case, the plaintiff claims that a property owned by the defendants is held on a constructive trust for her benefit to the extent of her contribution to the repayment of the mortgage secured by the property.

Claim and defence

The plaintiff (“Mrs Cirillo”) is an elderly widow and the mother of the first defendant (“Frank”). The second defendant (“Gelsomina”) is Frank’s domestic partner.

Mrs Cirillo claims that she, on the one part, and Frank and Gelsomina, on the other part, entered into an agreement between September 2007 and August 2008, whereby Mrs Cirillo agreed to sell her housing unit at 2/32 David Street, Lalor (“Lalor unit”) and contribute $240,000 from the proceeds towards reduction of the moneys owing by the defendants on the mortgage secured over their house at 34 Budds Street, Coburg (“Budds Street”) in return for the defendants undertaking to accommodate the her at Budds Street and take care of her for life (“the Agreement”).[1]
[1]Paragraph 6 of the statement of claim filed 15 November 2010.

The Agreement alleged by Mrs Cirillo was said to be partly oral, partly written and partly to be implied. In so far as it was oral, it was said to be constituted by discussion between the parties at the Lalor unit in September 2007, December 2007 and May 2008. In so far as it was in writing, it was said to be constituted by a document executed by the parties on 20 August 2008 (“the August Document”). In so far as it was to be implied, the implication arose from the payment which Mrs Cirillo had promised and the relationship between the parties.[2] An implied term was not pressed with any alacrity on behalf of Mrs Cirillo.
[2]Particulars to paragraph 6 of the statement of claim.

The August Document is in the following terms:

THIS AGREEMENT is made the 20^th day of August 2008.
BETWEEN RITA CIRILLO of 2/32 David Street, Lalor in the State of Victoria (“the Donor”) of the first part
AND
FRANK MANIERI and GELSOMINA COMANDE of 34 Budds Street, Coburg in the State of Victoria (“the Donees”) of the second part

WHEREAS The Donor is desirous of making a gift of $240,000 to the Donees and the Donees are prepared to accept such gift.
NOW THIS AGREEMENT WITNESSES
A.In consideration of the gift of $240,000 by the Donor to the Donees the Donees hereby agree to look after and take care of…

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 Cirillo v Manieri

Details

AGLC: Cirillo v Manieri [2013] VSC 399
Case: [2013] VSC 399
Decision Date: 7 August 2013

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of Cirillo v Manieri involved a dispute between Rita Cirillo, the plaintiff, and Frank Manieri and Gelsomina Comande, the defendants. The plaintiff claimed that a property owned by the defendants was held on a constructive trust for her benefit to the extent of her contribution to the repayment of the mortgage secured by the property. The legal issues the court was required to decide were whether the oral part of the Agreement was admissible and whether the evidence of Mrs Cirillo's payment of $240,000 in reduction of the Budds Street mortgage was admissible. The court found that the evidence of the oral part of the Agreement was admissible and that the evidence of Mrs Cirillo's payment was also admissible. The court concluded that the evidence relied upon by Mrs Cirillo was admissible and that a remedial constructive trust should be imposed in her favour.

Orders