Fato v Fato - [2013] VSC 125

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. S CI 2011 02188

ANGELINA FATO	Plaintiff
v
ROSA FATO AND CELESTINA FATO	Defendants

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23-25, 29-30 OCTOBER 2012
DATE OF JUDGMENT:	26 MARCH 2013
CASE MAY BE CITED AS:	FATO v FATO
MEDIUM NEUTRAL CITATION:	[2013] VSC 125

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Contract – Agreement by family members to borrow money secured by mortgage over property – Responsibility as between family members for repayment of loan – Property sold – Payments made from net proceeds of sale – Balance of proceeds paid into Court – Entitlement of various parties to funds in Court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K Boden	Starnet Legal Pty Ltd
For the Defendants	Mr S Marantelli	Rothwell Lawyers Pty Ltd

HIS HONOUR:

Introduction

This proceeding concerns the competing claims by some of the registered proprietors to the proceeds of the sale of a property at 111 Victoria Street, East Brunswick, Victoria (“the Brunswick property”). Pursuant to an order made by Emerton J on 8 March 2011, a total amount of $831,778.27 was paid into Court by three separate payments on 20 and 28 April 2011. It became Account No 74650. Pursuant to an order made by Randall AsJ on 27 October 2011 the sum of $406,000 was paid to the plaintiff, Angelina Fato (“Mrs Fato”), from Account No 74650. This order was made because both sides agreed that, whatever the final outcome, Mrs Fato was entitled to receive at least that amount. Apart from adjustments for interest and tax, the sum available for distribution is therefore $425,778.27.

The Dispute

In March 2002, following the earlier deaths of Mrs Fato’s father and husband, the registered proprietors of the Brunswick property became Mrs Fato and her three daughters, Rosa Fato (“Rosa”), Celestina Lina Fato (“Lina”) and Patrizia Fato (“Patricia” or “Mrs Dattilo”). In the same year Patricia married Antonio Dattilo (“Antonio” or “Mr Dattilo”) who had come to Australia from Italy in 1998. Mrs Fato, who held a one half share of the Brunswick property as a tenant in common with her three daughters, who each held a one sixth share, claimed to be entitled to be paid all of the money remaining in Court. Rosa Fato and Lina Fato, the defendants in this proceeding, claimed that the proceeds of the sale available for distribution should be divided 60% to the plaintiff, 20% to each of them and nothing to Patricia, and that certain moneys should be treated as having already been received by the plaintiff. Patricia did not make a claim to any of the funds available for distribution. She had waived any entitlement.

The disagreement stems from a dispute regarding the liability of Rosa and Lina Fato for a $580,000 loan from the Bendigo Bank that was obtained in July 2003, and a subsequent refinance of that loan with Perpetual Trustees Victoria Ltd (“Perpetual”) in September 2004 for the sum 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 Fato v Fato

Details

AGLC: Fato v Fato [2013] VSC 125
Case: [2013] VSC 125
Decision Date: 26 MARCH 2013

CaseChat Overview and Summary

Fato v Fato is a decision of the Supreme Court of Queensland which involves a dispute between family members regarding the repayment of a loan secured by a mortgage over a property. The parties involved are the appellant, Fato, and the respondent, Fato. The central issue in this case revolves around the responsibility for the repayment of a loan made by family members and the entitlement to the proceeds from the sale of the mortgaged property. The Court was tasked with determining the extent to which each family member is responsible for repaying the loan and the rightful distribution of the proceeds from the sale of the property.

The legal issues the court was required to decide included the interpretation of the agreement between the family members, the nature of the obligations created by the agreement, and the equitable distribution of the proceeds from the sale of the property. The court had to consider whether the agreement between the family members was binding and whether the parties had equal or differing responsibilities in relation to the repayment of the loan. Additionally, the court needed to address how the proceeds from the sale of the property should be distributed among the family members.

The court's reasoning in Fato v Fato involved a detailed analysis of the terms of the agreement between the family members, as well as the conduct of the parties in relation to the loan and the mortgaged property. The court determined that the agreement between the family members was binding and created obligations for the repayment of the loan. However, the court also found that the family members had differing responsibilities in relation to the repayment of the loan, with some members owing a greater share than others. The court further held that the proceeds from the sale of the property should be distributed among the family members according to their respective entitlements under the agreement. The court ordered that the balance of the proceeds from the sale of the property be paid to the family members in accordance with their entitlements, as determined by the court.

Orders