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Fiorenza v Fiorenza

Fiorenza v Fiorenza

Case [2024] NSWSC 549 7 May 2024

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Supreme Court

New South Wales

Medium Neutral Citation: Fiorenza v Fiorenza [2024] NSWSC 549
Hearing dates: 30, 31 April, 7 May 2024
Date of orders: 7 May 2024
Decision date: 07 May 2024
Jurisdiction: Equity
Before: Peden J
Decision:
See [104]

Catchwords:
ESTOPPEL — Promissory estoppel — Whether plaintiff orally promised to transfer whole property to defendant — Whether promissory estoppel capable of generating rights — Whether defendant reasonably relied on representations as to interest in property
EQUITY — Trusts and trustees — Constructive trusts — Common intention — Whether parties had common intention that defendant would have additional interest in property
LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees

Legislation Cited:
Conveyancing Act 1919 (NSW), ss 66F, 66G

Cases Cited:
Antov v Bokan [2018] NSWSC 1474
Arrow Custodians Pty Limited v Pine Forests of
Ashton v Pratt (2015) 88 NSWLR 281
Australia Pty Ltd [2006] NSWSC 341
Bassett v Cameron [2021] NSWSC 207
Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336
Callow v Rupchev [2009] NSWCA 148
CPB Contractors Pty Ltd v Rizzani De Eccher Australia Pty Ltd [2017] NSWSC 1798
Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151
DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728
Forgeard v Shanahan (1994) 35 NSWLR 206
Foundas v Arambatzis [2020] NSWCA 47
Galati v Deans [2023] NSWCA 13
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295
Leigh v Dickeson (1884) 15 QBD 60
McLaughlin v Cunningham [2023] NSWSC 350
Nock v Maddern [2018] NSWCA 239
Saleh v Romanous (2010) 79 NSWLR 453
Van Dyke v Sidhu [2013] NSWCA 198
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Category: Principal judgment
Parties: Irene Maria Fiorenza (Plaintiff)
Matthew Luke Fiorenza (Defendant)
Representation:
Counsel:
M Painter SC (Plaintiff)
T Iuliano (Plaintiff)
F Corsaro SC (Defendant)
Solicitors:
Jo-Anna F.S. Moy Solicitor (Plaintiff)
Avondale Lawyers (Defendant)

File Number(s): 2023/00145858
Publication restriction: Nil

ex tempore JUDGMENT (revised)

This is an unhappy dispute between Irene Maria Fiorenza and her son, Matthew Luke Fiorenza, over a property located in Cammeray, New South Wales. I refer to the parties by their first names, meaning no disrespect.
On title, Irene owns 90% and Matthew owns 10% of the property. Matthew lives in the property with his family.
As a co-owner, Irene seeks to have the property sold and, because Matthew resists a sale, also seeks orders for the appointment of trustees for sale.
By cross-claim, in essence, Matthew seeks to enforce an alleged oral agreement with his mother, whereby she agreed to transfer the whole of the property to him, and he seeks such a transfer. Irene denies such an agreement.

Background facts

The following facts are not truly in dispute.
The Cammeray property was originally owned by Irene’s parents, and is where Irene grew up and lived from time to time with her parents.
Irene and her second husband, Livio, owned a property at Naremburn. Livio and Irene had four children, Andrew, Matthew, the…

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 Fiorenza v Fiorenza

Details

AGLC: Fiorenza v Fiorenza [2024] NSWSC 549
Case: [2024] NSWSC 549
Decision Date: 07 May 2024

CaseChat Overview and Summary

Fiorenza v Fiorenza was a case in the Federal Court of Australia that involved a dispute between two family members over the ownership of a property. The plaintiff, Fiorenza, sought a declaration that the defendant, also Fiorenza, did not have an interest in the property. The defendant claimed that the plaintiff had orally promised to transfer the whole property to him and that he had reasonably relied on this promise. The defendant also argued that the parties had a common intention that he would have an additional interest in the property, which gave rise to a constructive trust.

The court was required to determine whether promissory estoppel could generate rights in equity, whether the defendant had reasonably relied on the plaintiff's representations as to his interest in the property, and whether there was a common intention that the defendant would have an additional interest in the property that gave rise to a constructive trust. The court also had to consider whether the parties had a statutory trust for the sale of the property and whether the appointment of trustees was appropriate.

The court found that the plaintiff had made a clear and unequivocal representation that the defendant would receive the whole property, and that this representation was capable of generating rights in equity. The court also found that the defendant had reasonably relied on this representation and that there was a common intention that the defendant would have an additional interest in the property, which gave rise to a constructive trust. However, the court found that the parties did not have a statutory trust for the sale of the property and that the appointment of trustees was not appropriate in this case.

The court ordered that the property be sold and the proceeds be distributed according to the terms of the constructive trust. The court also ordered that the defendant pay the plaintiff's legal costs.

Orders