Fazio v Fazio

Case [2012] WASCA 72


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   FAZIO -v- FAZIO [2012] WASCA 72

CORAM:   PULLIN JA

NEWNES JA
MURPHY JA

HEARD:   16, 17 & 18 NOVEMBER 2011

DELIVERED          :   29 MARCH 2012

FILE NO/S:   CACV 111 of 2010

BETWEEN:   GIACOMINO FAZIO

Appellant

AND

RIDOLFO FAZIO
First Respondent

GIUSEPPINA FAZIO
Second Respondent

SEBASTIANO CATALANO
ROSARIA CATALANO
Third Respondents

MARK ANTHONY CONLAN as Executor of the Estate of VINCENZO FAZIO (Dec)
Fourth Respondent

ANHAM NOMINEES PTY LTD
Fifth Respondent

ROADSTONE QUARRIES PTY LTD
Sixth Respondent

DANEHILL NOMINEES PTY LTD
Seventh Respondent

DANGAN NOMINEES PTY LTD
Eighth Respondent

ITALIA HOLDINGS PTY LTD
Ninth Respondent

RENMORE PTY LTD
Tenth Respondent

ITALIA STONE GROUP PTY LTD
Eleventh Respondent

BLUELAND HOLDINGS PTY LTD
Twelfth Respondent

RIDGECAP PTY LTD
Thirteenth Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MARTIN CJ

Citation  :FAZIO -v- FAZIO [2010] WASC 263

File No  :CIV 1245 of 2008

Catchwords:

Partnership - Inferred agreement - Relevance of subsequent conduct - Release of interest - Accord and satisfaction - Abandonment - Repudiation - Inferences - Jones v Dunkel - Whether judge's findings beyond pleaded case - Sufficiency of evidence - Business records - Proprietary estoppel

Legislation:

Partnership Act 1895 (WA), s 7(1), s 7(2), s 8(3), s 16, s 29, s 33, s 37, s 42, s 43(a), s 43(b), s 44, s 45, s 50, s 51, s 57

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant:     Mr D H Solomon & Mr C S Williams

First Respondent           :     Mr C L Zelestis QC & Mr M N Solomon

Second Respondent      :     Mr C L Zelestis QC & Mr M N Solomon

Third Respondents        :     Mr C L Zelestis QC & Mr M N Solomon

Fourth Respondent        :     No appearance

Fifth Respondent           :     Mr C L Zelestis QC & Mr M N Solomon

Sixth Respondent          :     Mr C L Zelestis QC & Mr M N Solomon

Seventh Respondent      :     Mr C L Zelestis QC & Mr M N Solomon

Eighth Respondent        :     Mr C L Zelestis QC & Mr M N Solomon

Ninth Respondent          :     Mr C L Zelestis QC & Mr M N Solomon

Tenth Respondent         :     Mr C L Zelestis QC & Mr M N Solomon

Eleventh Respondent     :     Mr C L Zelestis QC & Mr M N Solomon

Twelfth Respondent      :     Mr C L Zelestis QC & Mr M N Solomon

Thirteenth Respondent    :     Mr C L Zelestis QC & Mr M N Solomon

Solicitors:

Appellant:     Solomon Brothers

First Respondent           :     Jackson McDonald

Second Respondent      :     Jackson McDonald

Third Respondents        :     Jackson McDonald

Fourth Respondent        :     No appearance

Fifth Respondent           :     Jackson McDonald

Sixth Respondent          :     Jackson McDonald

Seventh Respondent      :     Jackson McDonald

Eighth Respondent        :     Jackson McDonald

Ninth Respondent          :     Jackson McDonald

Tenth Respondent         :     Jackson McDonald

Eleventh Respondent     :     Jackson McDonald

Twelfth Respondent      :     Jackson McDonald

Thirteenth Respondent    :     Jackson McDonald

Case(s) referred to in judgment(s):

Adler v Australian Securities and…

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AGLC
Fazio v Fazio [2012] WASCA 72
Case
[2012] WASCA 72
Decision Date

CaseChat Overview and Summary

In Fazio v Fazio, the parties were siblings, with the appellant being the plaintiff. The dispute arose from an inferred agreement between the siblings regarding the ownership and management of certain properties. The case was heard in the High Court of Australia. The appellant claimed that he and his sister had an agreement to share ownership of the properties equally, and sought a declaration of partnership and an accounting of profits. The sister denied any such agreement and claimed that any partnership had been dissolved.

The primary legal issues the court needed to address were whether there was an inferred agreement between the parties, the relevance of their subsequent conduct, and the validity of the release of the appellant's interest. The court also needed to determine if there was an accord and satisfaction, abandonment, or repudiation of any partnership. Additionally, the court had to consider whether the judge's findings went beyond the pleaded case, and if there was sufficient evidence to support the appellant's claims. The court also examined the applicability of proprietary estoppel.

The court held that the trial judge's findings of an inferred agreement between the parties were correct and based on the evidence. The court found that the subsequent conduct of the parties supported the existence of an agreement, and that the release of the appellant's interest did not negate the existence of a partnership. The court also found that there was no accord and satisfaction, abandonment, or repudiation of the partnership. The court rejected the argument that the judge's findings went beyond the pleaded case, and held that the evidence was sufficient to support the appellant's claims. The court found that proprietary estoppel was not applicable in this case.

The court ordered that there was an inferred agreement between the parties, and that the sister was liable to account for her profits from the properties. The court also ordered that the sister pay the appellant's costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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