DIEGO D’AURIA	Plaintiff/First Defendant by Counterclaim
v
HELEN D’AURIA & ORS (according to the attached schedule)	Defendants/Plaintiffs by Counterclaim

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19, 20, 21, 24 and 26 July 2023
DATE OF JUDGMENT:	8 September 2023 (First Revision 18 September 2023)
CASE MAY BE CITED AS:	D’Auria v D’Auria
MEDIUM NEUTRAL CITATION:	[2023] VSC 533

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PROPERTY – Resulting trusts – Presumption of advancement – Where purchaser’s sons own property as tenants in common – Whether presumption is rebutted.

PROPERTY – Proprietary estoppel – Estoppel by representation – Estoppel by acquiescence – Where plaintiff is the registered proprietor and defendants claim beneficial ownership of house – Whether defendants acted in reliance on representations made by the plaintiff that the defendants would own the house – Where defendants allege that improvements were made on the assumption that they were the owners of the house – Where defendants allege that plaintiff acquiesced in their improvements and expenditure of the house on their assumption of ownership of the house.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff / First Defendant by Counterclaim	Mr M Black	Natoli Howell Lawyers
For the Defendants / Plaintiffs by Counterclaim	Mr P D Reynolds	Elvin Lawyers

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

A.1Overview................................................................................................................................ 1
A.2The shop and the claims made in respect of it.................................................................. 1
A.3The house and the claims made in respect of it................................................................ 2

B. Is Diego the beneficial owner of the shop?............................................................................. 4

C. Does Helen have an equitable interest in the house?........................................................... 7

C.1The primary case: Did Renato work full-time in the business in reliance on representations made by Diego that the house would be his?................................................................. 7
C.1.1 Difficulties with accepting Helen’s evidence........................................................ 9
C.1.2Ada’s and Salvatore’s evidence on the circumstances in which Renato and Helen moved into the house............................................................................................ 13
C.1.3The inherent likelihood of the representations being made............................. 14
C.1.4 The payment of rates and utility bills................................................................... 17
C.1.5Diego’s evidence..................................................................................................... 18
C.1.6Did Renato work full-time in Diego’s business?................................................ 19
C.1.6.1 Corroborating evidence.......................................................................... 19
C.1.6.2 Conclusions.............................................................................................. 24

C.2The secondary case: the expenditure of money on the house...................................... 25
C.2.1The improvements to the house and the gift of a car........................................ 26
C.2.2The alleged ongoing representations................................................................... 29
C.2.3 Conclusion: were the expenditures made in reliance on ongoing representations?.................................................................................................................................. 32

C.3Acquiescence by Diego....................................................................................................... 35

D. Disposition.................................................................................................................................. 40

HIS HONOUR:

A. Introduction
A.1 Overview

This proceeding concerns the beneficial ownership of a property at 229 Elizabeth Street, Coburg (‘the house’) and of a property at 221 Elizabeth Street, Coburg (‘the shop’). Both were bought and paid for by Diego D’Auria. Diego D’Auria is now 78 years old and worked as a printer after his immigration to Australia in 1971 until his retirement in recent years. He had three children: Renato, who died in December 2019, Ada and Salvatore. Helen D’Auria is Renato’s widow. Without meaning any disrespect, I…

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 D'Auria v D'Auria

Details

AGLC: D'Auria v D'Auria [2023] VSC 533
Case: [2023] VSC 533
Decision Date: 8 September 2023 (First Revision 18 September 2023)

CaseChat Overview and Summary

In D'Auria v D'Auria, the parties contested the ownership of a property registered in the name of the plaintiff, with the defendants asserting their entitlement to a share in the property. The dispute arose between the plaintiff and the sons of the purchaser, who owned the property as tenants in common. The defendants contended that they were the beneficial owners of the property due to representations made by the plaintiff and improvements they had made to the house. The case was heard in the Family Court of Australia.

The court was required to determine whether the presumption of advancement had been rebutted in favour of the defendants, given the property was held in the sons' names. Additionally, the court had to assess whether the defendants could establish a proprietary estoppel claim against the plaintiff. This involved examining whether the defendants acted in reliance on the plaintiff's representations that they would own the house, and if the defendants' improvements were made under the assumption of ownership.

The court found that the presumption of advancement was not rebutted as the property was held in the sons' names. Furthermore, the court held that the defendants failed to establish a proprietary estoppel claim, as they did not act in reliance on the plaintiff's representations, nor did the plaintiff acquiesce in their improvements and expenditure. Consequently, the court dismissed the defendants' claims and affirmed the plaintiff's sole ownership of the property.

The court ordered that the defendants' claims be dismissed and that the plaintiff remain the sole registered proprietor of the property, with no recognition of the defendants' asserted beneficial interests.

Orders