Fazio v Fazio

Case [2010] WASC 263


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

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Details
AGLC
Fazio v Fazio [2010] WASC 263
Case
[2010] WASC 263
Decision Date

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

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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