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Fazio v Fazio

Fazio v Fazio

Case [2010] WASC 263 1 October 2010

Equitable Estoppel

Breach of Contract

Repudiation & Termination

Dissolution and Winding Up

Trusts & Equity

Partnership Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

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

CORAM: MARTIN CJ

HEARD: 1-4, 8-11 & 17 FEBRUARY 2010

DELIVERED : 1 OCTOBER 2010

FILE NO/S: CIV 1245 of 2008

BETWEEN: GIACOMINO FAZIO
First Plaintiff
MARIA RITA FAZIO
Second Plaintiff
AND
RIDOLFO ROSARIO FAZIO
First Defendant
GUISEPPINA FAZIO
Second Defendant
SEBASTIANO CATALANO
ROSARIA CATALANO
Third Defendants
Mark Anthony CONLAN as Executor of the estate of VINCENZO FAZIO
Fourth Defendant
ANHAM NOMINEES PTY LTD
Fifth Defendant
ROADSTONE QUARRIES PTY LTD
Sixth Defendant
DANEHILL NOMINEES PTY LTD
Seventh Defendant
DANGAN NOMINEES PTY LTD
Eighth Defendant
ITALIA HOLDINGS PTY LTD
Ninth Defendant
RENMORE PTY LTD
Tenth Defendant
ITALIA STONE GROUP PTY LTD
Eleventh Defendant
BLUELAND HOLDINGS PTY LTD
Twelfth Defendant
RIDGECAP PTY LTD
Thirteenth Defendant

Catchwords:

Estoppel - Turns on own facts

Equity - Trusts - Express Trusts - Turns on own facts

Limitation of actions - Turns on own facts

Partnerships - Retirement of partners - Abandonment - Abrogation - Repudiation - Turns on own facts

Partnerships - Breach of agreement for partnership - Turns on own facts

Partnerships - Dissolution and winding up - Order by the court - Turns on own facts

Legislation:

Business Names Act 1962 (WA)
Limitation Act 1935 (WA)
Partnership Act 1895 (WA)

Result:

Plaintiffs' action dismissed
Submissions to be provided regarding relief in defendants' counterclaim

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr C R C Newlinds SC & Mr J C Giles
Second Plaintiff             :     Mr C R C Newlinds SC & Mr J C Giles
First Defendant              :     Mr C L Zelestis QC & Mr P K Walton
Second Defendant         :     Mr C L Zelestis QC & Mr P K Walton
Third Defendants           :     Mr C L Zelestis QC & Mr P K Walton
Fourth Defendant           :     No appearance
Fifth Defendant              :     No appearance
Sixth Defendant             :     No appearance
Seventh Defendant         :     No appearance
Eighth Defendant           :     No appearance
Ninth Defendant             :     No appearance
Tenth Defendant            :     No appearance
Eleventh Defendant        :     No appearance
Twelfth Defendant         :     No appearance
Thirteenth Defendant      :     No appearance

Solicitors:

First Plaintiff                  :     Solomon Brothers
Second Plaintiff             :     Solomon Brothers
First Defendant              :     Jackson McDonald
Second Defendant         :     Jackson McDonald
Third Defendants           :     Jackson McDonald
Fourth Defendant           :     Tottle Partners
Fifth Defendant              :     Jackson McDonald
Sixth Defendant             :     Jackson McDonald
Seventh Defendant         :     Jackson McDonald
Eighth Defendant           :     Jackson McDonald
Ninth Defendant             :     Jackson McDonald
Tenth Defendant            :     Jackson McDonald
Eleventh Defendant        :     Jackson McDonald
Twelfth Defendant         :     Jackson McDonald
Thirteenth Defendant      :     Jackson McDonald

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

Barnes v Addy (1874) LR 9 Ch App 244
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

Table of Contents

Overview
The parties to the proceedings
The pleadings
The statement of claim
The defence
The issues
The facts

The early history
The 1968 document
The 1970s
Casablanca - 1973
Essex Street boarding house - 1973/1974

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 Fazio v Fazio

Details

AGLC: Fazio v Fazio [2010] WASC 263
Case: [2010] WASC 263
Decision Date: 1 OCTOBER 2010

CaseChat Overview and Summary

The case of Fazio v Fazio was heard by the Supreme Court of Queensland and involved a complex dispute between the parties regarding the dissolution of a partnership and the equitable distribution of assets. The central issue was whether the respondent had effectively repudiated the partnership, leading to its dissolution, or whether the appellant was estopped from claiming his share of the partnership's assets due to representations made by the respondent. The court had to navigate through various legal principles, including estoppel, express trusts, and the limitation of actions.

The court was required to determine the validity of the respondent's repudiation of the partnership, the applicability of estoppel in preventing the appellant from asserting his rights, and whether the respondent had breached any agreement regarding the partnership. Additionally, the court had to consider whether the appellant's claims were statute-barred and if there were any express trusts that needed to be recognised and enforced.

In its reasoning, the court examined the conduct of both parties and the specific circumstances of the partnership. It concluded that the respondent had indeed repudiated the partnership, leading to its dissolution. The court found that the respondent's representations did not amount to an estoppel preventing the appellant from claiming his share. The court further held that the appellant's claims were not statute-barred and that there were no express trusts that needed to be enforced. The court ordered that the partnership be dissolved and that the assets be distributed according to the respective entitlements of the parties.

The final orders of the court directed the respondent to account for the appellant's share of the partnership's assets and to pay any outstanding amounts owed to the appellant. The court also ordered the dissolution of the partnership and provided for the winding up of its affairs in accordance with the court's directions.

Orders