Daniel Cleret v Franca Rago

[2014] HCASL 233

DANIEL CLERET

v

FRANCA RAGO

[2014] HCASL 233
B31/2014

1. The respondent is the registered proprietor of a house and land in Kenilworth, Queensland ("the property").  At various time since April 1996, the property has been occupied by the applicant, the respondent's former de facto partner.

2. The respondent commenced proceedings against the applicant seeking possession of the property.  The applicant filed a counter‑claim, seeking a declaration that he owned the property on the basis that he had been in possession of the property adverse to the respondent for more than 12 years.  The applicant also sought a declaration that the respondent held the property on constructive trust for him because he had paid the deposit for the respondent's purchase of the property, all mortgage repayments, and made various other payments.

3. On 11 December 2013, the District Court of Queensland (Andrews DCJ) dismissed the applicant's counterclaim and gave judgment for the respondent.  His Honour rejected the applicant's adverse possession claim on the basis that the respondent had consented to the applicant's occupancy of the property until 22 June 2011.  His Honour also rejected the applicant's constructive trust claim, finding that the deposit, some mortgage repayments and some rates had in fact been paid by the respondent.

4. On 15 July 2014, the Court of Appeal of the Supreme Court of Queensland dismissed the applicant's application to extend the time for filing a notice of appeal.  Philippides J (with whom Gotterson and Morrison JJA agreed) held that the primary judge's conclusions regarding the adverse possession claim and constructive trust claim were free of error and there was no substance in any matter sought to be raised by the applicant.

5. The applicant now seeks special leave to appeal from the decision of the Court of Appeal.  The applicant's draft notice of appeal does not disclose any reason to doubt the correctness of the decision of the Court of Appeal, nor is there any independent reason to doubt its correctness.  The application has insufficient prospects of success to warrant the grant of special leave.  Special leave is refused.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
11 December 2014 P.A. Keane