ex parte Dominic Ziino - [2018] NSWSC 1625

Supreme Court

New South Wales

Medium Neutral Citation: Application under Part IV of the Trustee Act 1925 (NSW); ex parte Dominic Ziino [2018] NSWSC 1625
Hearing dates: 26 October 2018
Decision date: 26 October 2018
Jurisdiction: Common Law
Before: Adamson J
Decision:
See paragraph [30]

Catchwords: REAL PROPERTY – co-ownership as joint tenants – one party contributed nothing to purchase of property – property sold by mortgagee and monies paid into court – appropriate relief to recognise equity of applicant – declaration that proceeds held on trust for the sole benefit of the applicant – order for payment out of court made
Legislation Cited: Real Property Act 1900 (NSW), s 58
Supreme Court Rules 1970, Pt 70, rr 11, 12
Trustee Act 1925 (NSW), Pt 4
Uniform Civil Procedure Rules 2005 (NSW), rr 41.3, 41.8
Cases Cited: Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2008] NSWSC 839
Axon v Axon (1937) 59 CLR 395; [1937] HCA 80
Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Corin v Patton (1990) 169 CLR 540; [1990] HCA 12
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Public Trustee v Pfeiffle [1991] 1 VR 19
Residential Housing Corporation v Esber (2011) 80 NSWLR 69; [2011] NSWCA 25
Ross v NRMA Life (1993) 7 ANZ Ins Cas 61-170
Scott v Scott [2009] NSWSC 567
Category: Principal judgment
Parties: Westpac Banking Corporation (Plaintiff)
Dominic Michael Ziino (Applicant)
Julie Young (Third Party)
Representation: Solicitors:
H A Miedzinski Lawyers (Applicant)

File Number(s): 2004/181625
Publication restriction: None

Judgment

Introduction

By amended notice of motion filed on 5 October 2018, Dominic Ziino (the applicant) seeks orders and declarations that the balance of funds which were paid into court by Westpac Banking Corporation (Westpac), together with interest, be paid to him.
Westpac paid the funds into court in 2004 after it had sold a property, as mortgagee, of which the applicant and his co-owner, Julie Young were registered proprietors as joint tenants.
In order to address the question whether the applicant is entitled to the relief sought it is necessary to summarise the evidence, all of which is uncontroverted.

Facts

In about 2002 the applicant and Ms Young began a romantic relationship in the course of which the applicant stayed overnight with Ms Young at a home she rented in Beverly Hills where she lived with her two children from a previous relationship. When the applicant mentioned to Ms Young that he was saving for a deposit to buy a home, she suggested that they use his funds to pay the deposit on a home which they could buy and live in together. She agreed that she would pay half the mortgage repayments. At that time she was working in a Vietnamese restaurant and had a connection with a beauty salon in Marrickville.
The applicant and Ms Young applied to Westpac for a loan to…

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.

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Details

Case: [2018] NSWSC 1625
Decision Date: 26 October 2018

CaseChat Overview and Summary

The applicant, Dominic Ziino, sought an order to recognise his equity in a property that he claimed was held as joint tenants with his father. The father had contributed nothing to the purchase of the property, but was listed as a joint owner. The mortgagee subsequently sold the property and paid the proceeds into court. The court was required to determine the appropriate relief to recognise the applicant's equity in the property.

The central legal issue was whether the applicant's equity in the property could be recognised by declaring that the proceeds held by the court were held on trust for the sole benefit of the applicant. The court considered whether the applicant's contributions to the property, both financial and otherwise, were sufficient to establish an equitable interest in the property. The court also considered whether the father's contribution to the purchase price was nominal, and whether the applicant's contributions were sufficient to establish a resulting trust in his favour.

The court found that the applicant's contributions to the property, both financial and otherwise, were sufficient to establish an equitable interest in the property. The court also found that the father's contribution to the purchase price was nominal, and that the applicant's contributions were sufficient to establish a resulting trust in his favour. The court therefore made a declaration that the proceeds held by the court were held on trust for the sole benefit of the applicant. The court also made an order for payment out of court to the applicant in recognition of his equity in the property.

This case highlights the importance of considering both financial and non-financial contributions when determining the equitable interests of co-owners in a property. It also demonstrates the court's willingness to recognise the equity of a party who has made significant contributions to a property, even if that party did not contribute financially to the purchase price.

Orders