JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4 December 2018
DATE OF JUDGMENT:	7 November 2019
CASE MAY BE CITED AS:	Clementi v Rossi
MEDIUM NEUTRAL CITATION:	[2019] VSC 725

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TRUSTS — Whether the defendant holds interest in a real property on resulting trust for the plaintiff — Whether the defendant must account to the plaintiff for rental received from the property — Where the plaintiff submits transfer to the defendant was to avoid future claim from wife — Where the defendant submits transactions formed part of a ‘family joint venture’ — Credibility of witnesses.

RESULTING TRUSTS — Whether the defendant holds interest in the property on resulting trust for the plaintiff — Whether presumption of resulting trust applies — Melbourne Orthopaedic Group Pty Ltd v Stamford Aus-Trade & Press Pty Ltd [2015] VSCA 150 — Anderson v McPherson (No 2) [2012] WASC 19 — Vlahos Pty Ltd v Vlahos [2017] VSCA 166 — Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 — Whether presumption of advancement applies —Calverley v Green (1984) CLR 242 — Xiao v Perpetual [2015] VSCA 124.

CONSTRUCTIVE TRUSTS — Whether the defendant holds interest in the property on constructive trust for the plaintiff —‘Joint endeavour’ constructive trusts — Muschinski v Dodds (1985) 160 CLR 583 — Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 — ‘Common intention’ constructive trusts — McNab v Graham (2017) 53 VR 311 — Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413.

PROPRIETARY ESTOPPEL — Whether the defendant is estopped from denying the plaintiff’s joint beneficial interest the property — Sidhu v Van Dyke (2014) 251 CLR 505.

LIMITATIONS — Whether the plaintiff is estopped from contending that he has an interest in the property, or is otherwise barred from relief — Limitations of Action Act 1958 (Vic) ss 5, 11 and 21 — Doctrine of laches – Orr v Ford (1989) 167 CLR 316 — CSR Ltd v Amaca Pty Ltd [2016] VSCA 320 — Waiver of rights to bring claim — RW Health Partnership Pty Ltd v Lendlease Building Contractors Pty Ltd [2019] VSC 353.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr SW Stuckey QC with Mr SL Freire	Leonidas Lawyers
For the Defendant	Mr AK Panna QC with Mr WHC Forrester	Kingston Lawyers

HER HONOUR:

Introduction

The plaintiff and the defendant are the adult children of Domenico Clementi (‘Domenico’) and Orsola Clementi (‘Orsola’). The plaintiff and defendant previously held title to a property at 129 Brewer Road, Bentleigh (‘Brewer Road’) as joint tenants. In October 2002, the plaintiff transferred his interest in Brewer Road to the defendant.

By his amended statement of claim, the plaintiff claims a beneficial interest in Brewer Road…

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 Clementi v Rossi

Details

AGLC: Clementi v Rossi [2019] VSC 725
Case: [2019] VSC 725
Decision Date: 7 November 2019

CaseChat Overview and Summary

Clementi v Rossi was a case where the plaintiff, Clementi, sought a declaration that the defendant, Rossi, held an interest in a real property on a resulting trust for him. Additionally, Clementi claimed that Rossi must account for rental income received from the property. The dispute arose after Clementi transferred his interest in the property to Rossi, who then sold it to a third party. Clementi alleged that the transfer was intended to avoid a potential claim from his wife, while Rossi argued that the transactions were part of a family joint venture. The case was heard in the Supreme Court of Victoria.

The primary legal issues in this case were whether Rossi held the property on a resulting trust for Clementi, and if so, whether this presumption applied, and if not, whether a constructive trust or proprietary estoppel applied. The court also considered whether the plaintiff's claim was barred by limitations. The court had to weigh the credibility of both parties and their witnesses, and determine whether the transfer of the property was a gift, a loan, or a joint venture. The court also had to consider whether the presumption of advancement or laches applied.

In determining the outcome, the court considered the evidence and submissions from both parties. The court found that the transfer of the property was not a gift or a loan, but rather part of a family joint venture. The court held that the presumption of resulting trust did not apply, as there was no evidence of an intention to create a trust. The court also found that the presumption of advancement did not apply, as the transfer was not made to a family member. The court further held that the evidence did not support a constructive trust or proprietary estoppel. Finally, the court found that the plaintiff's claim was not barred by limitations, as the doctrine of laches did not apply.

The court ordered that Clementi take nothing by his claim, and that Rossi pay his costs. The court found that Rossi did not hold the property on a resulting trust for Clementi, and that the presumption of resulting trust did not apply. The court also found that there was no evidence of a joint endeavour or common intention to create a trust, and that the plaintiff's claim was not barred by limitations.

Orders