Gianchino v Gianchino
[2021] VSC 383
•29 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2020 02527
| VICTORIA ELIZABETH GIANCHINO & ANOR (in their capacity as executors of the estate of SUSAN MARTHA GIANCHINO deceased) | Plaintiffs |
| v | |
| ANGELO GIANCHINO | Defendant |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2021 (Written Submissions to 16 June 2021) |
DATE OF JUDGMENT: | 29 June 2021 |
CASE MAY BE CITED AS: | Gianchino & Anor v Gianchino |
MEDIUM NEUTRAL CITATION: | [2021] VSC 383 |
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LIMITATION OF ACTIONS — Adverse possession between co-owners —Limitation of Actions Act 1958 ss 3(1), 8, 9, 14(1), 14(4), 18; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 — Whittlesea City Council v Abbatangelo (2009) VSCA 188; Fourniotis v Vallianatos [2018] VSC 369 referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr W Rimmer | Wisewould Mahony |
| For the Defendant | Mr L Virgona | Sullivan Braham Pty Ltd |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Claim and defence/counterclaim.................................................................................................... 1
Evidence............................................................................................................................................... 4
Summary of conclusions.................................................................................................................. 5
Matters in dispute.............................................................................................................................. 5
The facts............................................................................................................................................... 8
Introduction................................................................................................................................... 8
Early years...................................................................................................................................... 9
Retrenchment............................................................................................................................... 10
Relationship between Sue and Angelo.................................................................................... 16
Departure for Queensland......................................................................................................... 20
Events after departure................................................................................................................ 22
The first lock change................................................................................................................... 24
Ben’s visit to Toowoomba.......................................................................................................... 26
Email exchange in October 2004............................................................................................... 26
Angelo’s change of jobs.............................................................................................................. 29
No Christmas at home................................................................................................................ 29
Angelo reduces the mortgage payments................................................................................. 30
Shipping Angelo’s belongings.................................................................................................. 31
Angelo’s visit in September 2005.............................................................................................. 34
Changing the locks after the visit in 2005................................................................................ 39
Emails after September 2005...................................................................................................... 40
Financial arrangements.............................................................................................................. 41
Other material facts..................................................................................................................... 43
Applicable law.................................................................................................................................. 46
Plaintiffs’ interpretation of s 14(4)............................................................................................ 51
Defendant’s interpretation of s 14(4)........................................................................................ 55
Analysis of the interpretation of s 14(4)................................................................................... 58
Aggregation................................................................................................................................. 61
Consideration.................................................................................................................................... 61
First question............................................................................................................................... 61
Second question........................................................................................................................... 66
Third questions............................................................................................................................ 68
Fourth question........................................................................................................................... 69
Fifth question............................................................................................................................... 71
Sixth questions............................................................................................................................. 72
Seventh question......................................................................................................................... 73
Consent......................................................................................................................................... 75
Conclusion......................................................................................................................................... 76
HIS HONOUR:
Introduction
The plaintiffs, Victoria Elizabeth Gianchino (‘Vicki’) and Ben Paul Gianchino (‘Ben’) are the children of Susan Martha Gianchino (‘Sue’), who died on 11 February 2019, and the defendant (‘Angelo’). The plaintiffs are the executors of Sue’s estate.
In September 1983, Sue and Angelo were registered as joint proprietors of the fee simple estate in the property known as 19 Cairo Road, Mont Albert North (‘Property’).[1] On 29 July 2019, after Sue died, Angelo became registered as sole proprietor of the Property by right of survivorship.
[1]The land described in Certificate of Title Volume 7736 Folio 188. It is sometimes called Box Hill North, particularly by Angelo.
The plaintiffs claim that they, in their own right, have acquired title to the Property by way of adverse possession, relying on s 14(4), or alternatively s 14(1) of the Limitation of Actions Act 1958 (Vic) (LAA). In the event that the plaintiffs’ claim for a possessory title is denied, the plaintiffs bring an alternative claim for a charge over the Property in respect of amounts paid by Sue and them for mortgage repayments and Council rates.
Angelo denies the claimed possessory title and counterclaims for possession of the Property and the removal of a caveat lodged by the plaintiffs. The counterclaim names the Registrar of Titles as the third defendant by counterclaim. By correspondence filed 24 July 2020 the Court was informed that the Registrar of Titles did not intend to appear.
Claim and defence/counterclaim
The plaintiffs’ claim title to the Property by adverse possession. In summary, the plaintiffs claim:
(a) That for a period commencing at least 15 years before the date of the writ in this proceeding (11 June 2020) Sue was in sole possession of the Property for her benefit and the benefit of her and Angelo’s children until 11 February 2019 (the date Sue died) and from then to the date of the writ the plaintiffs were in sole possession of the Property in their own right, and by reason of that aggregated possession and s 14(4) of the LAA, their possession of the Property is deemed to be adverse possession of the Property (‘the primary claim to adverse possession’). It is common ground that Angelo left the Property on or about 10 July 2004 to take up work in Queensland and this marks the first of several starting points for the accrual of his right of action to recover possession of the Property. In submissions the plaintiffs maintain the ‘end date’ is the date on which the defendant filed his counterclaim for possession of the property (23 July 2020) rather than the date of the writ, a date that is accepted by the defendant.[2]
(b) Alternatively, in or about June or July 2004, Sue ousted Angelo from the Property and from then until 11 February 2019, Sue was in sole possession of the Property with the intention to possess it for her benefit and the benefit of the children to the exclusion of Angelo, and by reason of the ouster, Sue was in sole possession, and from her death to the date of the writ, the plaintiffs were in sole possession of the Property in their own right, and by reason of that aggregated possession and the operation of ss 9 and 14(1) of the LAA, their possession of the property was in fact adverse possession of the property (‘the secondary claim to adverse possession’). Properly understood, this claim turns on the operation of s 14(4) informed by the principles applicable under s 14(1) of the LAA. Amongst the particulars given for the ouster of Angelo from the Property was that in or about June or July 2004, Sue changed the locks without providing a key to Angelo. As the facts have developed, however, that date is in about August 2004. This marks the second starting point for the accrual of Angelo’s right of action to recover possession of the Property. As with the primary claim to adverse possession, the ‘end date’ is the date on which the defendant filed his counterclaim for possession of the property rather than the date of the writ.
(c) In the case of each of the primary and secondary claims to adverse possession, Angelo’s right to bring an action against the plaintiffs to recover possession of the property is barred by s 8 of the LAA, his title to the property is extinguished by s 18 of the LAA and the plaintiffs have acquired title to the Property by adverse possession.
[2]Defendant’s Closing Submission dated 14 June 2021, [180] (‘Defendant’s Closing Submissions’).
A claim that Sue’s possession adverse to Angelo aggregated with the plaintiffs’ possession as executors of Sue’s estate, giving rise to title in the estate, was not pursued at trial and in the plaintiffs’ final submissions was expressly abandoned.
The defendant denies the primary claim to adverse possession, maintaining that on or about 11 July 2004[3] he moved to Toowoomba, Queensland, to take up an employment opportunity, that he retained a large number of his possessions at the Property, that he continued to make mortgage repayments on the property until approximately June 2007 and retained keys to the property until at least September 2005. Angelo denies the secondary claim to adverse possession on the same basis, but with the addition that up to 11 February 2019, Sue and the plaintiffs remained in the Property with his consent and permission and that on or about 29 July 2019, Angelo paid an amount of approximately $700 to effect the discharge of the third mortgage (which was the only remaining mortgage on the title to the Property and the mortgage to the Bank of Melbourne Ltd to which Angelo, Sue, Vicki and Ben contributed during the period from July 2004 until July 2019).
[3]However, Angelo’s evidence is it was 10 July 2004, a Saturday, that he left the Property.
The plaintiffs’ claim, as an alternative to their claim to title to the Property, an indemnity and/or contribution from Angelo for his half share of liability for the payments made by Sue and the plaintiffs between 1 May 2008 and 11 February 2019 for mortgage payments and Council rates in respect of the Property for which Sue and Angelo were liable in equal shares as co-debtors. The plaintiffs claim a charge on Angelo’s interest in the Property to secure Angelo’s liability to indemnify the plaintiffs for the payments made.
Angelo admits certain mortgage repayments and Council rates were made by Sue and the plaintiffs but denies that the plaintiffs are entitled to any indemnity or contribution in respect of the payments, or a charge to secure them.
Angelo counterclaims for possession of the Property and removal of a caveat lodged by the plaintiffs claiming an interest as chargees. If the plaintiffs are unsuccessful in their claim as far as it relates to possessory rights, it necessarily follows that Angelo will be entitled to the orders he now seeks, subject to the claim for indemnity or contribution.
Evidence
The evidence of the witnesses (who were Vicki, Ben and Angelo) at trial was given orally by audio-visual link over two days.[4] Barring minor interruptions to transmission and the need occasionally for counsel or a witness to repeat something, the trial went well, enabling the Court and the persons attending to hear and assess the witnesses’ evidence and their credit. One of the features of the giving of evidence by audio-visual link is that it is possible to observe the witness closely, particularly using ‘speaker view’ on the Zoom software being used. This made the assessment of the witnesses easier and perhaps equivalent to an in-court trial.
[4]By Order of McDonald J made on 21 May 2021 pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the proceeding was referred to me to be heard and determined. I was satisfied that the technical requirements in section 42G of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) were met and that the parties consented to the making of a direction pursuant to s 42E of that Act that ‘all persons shall appear, give evidence and make submissions’ in the proceeding by audio-visual link.
In the case of each witness, there was also either a witness statement or witness outline of evidence used in cross-examination which was subsequently tendered in evidence. There was a Court Book prepared by the parties. It was tendered in its entirety.[5] The Court Book contained the witness statements of Vicki and Ben, but not that of Angelo, which was tendered separately There were also a few other exhibits which I mention as they arise.
[5]Exhibit 1; Gianchino v Gianchino S ECI 2020 0257 Transcript 25 May 2021 (‘Transcript Day 1’), 119.15. I found that the parties’ references to the transcript of the trial were not in accord with the pagination of my copy, they were out by about a page each time.
After Angelo’s departure to Queensland, he established an email account and connection, and he and Sue communicated by email. Angelo has managed to retrieve 33 emails, including parts of chains of emails, from 17 October 2004 to 5 March 2009. Some of them are important to the issues in this case. There were undoubtedly more emails not able to be recovered. Those that have been recovered are important to an understanding of the relationship between Angelo and his family and the separation and virtual divorce that is revealed quite soon after his departure. They are all included in the Court Book. I will refer to them in the chronological account of the facts.
Summary of conclusions
In summary, I have found that the plaintiffs have established their claim to adverse possession of the Property. It is therefore unnecessary to deal with the claim for indemnity or contribution and the consequent charge claimed over the Property. There will be a declarations and orders to give effect to this finding.
Matters in dispute
In their final submissions the plaintiffs put forward a number of questions that they submitted would deal with the matters in dispute between the parties and assist in the resolution of the claims and defences in the proceeding. I agree that the questions are an appropriate way of addressing the issues, although I have rephrased them somewhat.
The plaintiffs’ case is, in part, that from the date of Angelo’s departure for Queensland in July 2004, Sue was left with the sole custody and control of the property; that she had the benefit of that possession for herself and her children as a home in which they lived together and Angelo did not. After Sue’s death in early 2019, Vicki and Ben, who had been living at the Property throughout their lives, continued to live there and do so to this day. This, the plaintiffs contend, is enough to satisfy the terms of s 14(4) of the LAA. This gives rise to the first question:
Whether the circumstances of Angelo’s departure for Queensland on 10 July 2004 had the effect that from that time Sue’s possession of the Property was a separate possession from his, for her own and the children’s benefit excluding him, such that a period of deemed adverse possession under s 14(4) of the LAA commenced?
At the time Angelo left for Queensland, Sue had not definitely said, or perhaps decided, that she and the children would not follow Angelo to Queensland at the end of the school year. Within about two weeks of his departure, Sue informed him, either by telephone or email, that she and the children would not be following him to Queensland. This gives rise to the second question:
If ‘no’ to the first question, whether the circumstances of Angelo’s departure together with Sue informing him within weeks of him leaving for Queensland that she and the children would not be moving to Queensland had the effect that from that time Sue’s possession of the Property was a separate possession from his, for her own and the children’s benefit excluding him, such that a period of deemed adverse possession under s 14(4) of the LAA commenced?
A few weeks after Angelo left for Queensland, Vicki and Ben claim that Sue, with their assistance, changed the locks to the house on the Property so as to prevent Angelo returning without her permission, and it is contended that this gives rise to either a deemed adverse possession under s 14(4) or ‘actual’ adverse possession pursuant s 14(1) of the LAA, in consequence of Sue ‘ousting’ or excluding Angelo from possession. This gives rise to the next questions:
Did Sue change the locks to the Property within weeks of Angelo leaving for Queensland?
If so, does that fact, in the circumstances, have the effect that from that time -
(a)Sue’s possession of the Property was a separate possession from Angelo’s, for her own and the children’s benefit excluding him, such that a period of deemed adverse possession under s 14(4) of the LAA commenced at that time? or
(b)Sue had ousted Angelo from the Property, such that a period of actual adverse possession commenced at that time?
However, Angelo continued to make payments towards the mortgage until about May 2008, as did Sue until her death, Vicki from 2008 and Ben from later. Although Angelo agreed that his payment towards the mortgage was his contribution towards the support of his children,[6] particularly Ben who was 10 when Angelo left in July 2004, the question arises:
Whether Angelo’s payment of the mortgage instalments beyond a date 15 years before commencement of Angelo’s counterclaim for possession of the Property (23 July 2020) constituted Angelo retaining possession of the Property?
[6]Gianchino v Gianchino S ECI 2020 02527 Transcript 26 May 2021 (‘Transcript Day 2’), 66.26-28.
Angelo also left a considerable volume of personal possessions in his home office in the garage. A considerable quantity of these possessions were shipped to Angelo in early 2005. This gives rise to the next question:
Whether by leaving personal possessions in the Property when he left on 10 July 2004, Angelo retained possession together with Sue from 10 July 2004 until sometime after 23 July 2005, being the date 15 years prior to Angelo’s counterclaim?
Angelo maintains that when he left on 10 July 2004 he retained keys to the house on the Property and that when he visited on 19 September 2005 he entered the house using his own key. This then gives rise to the next questions:
Whether by retaining the keys to the Property when he left on 10 July 2004, Angelo retained possession together with Susan from 10 July 2004 until sometime after 23 July 2005, thereby precluding any period of adverse possession commencing during that period?
Whether Angelo’s visit to the property to collect personal possessions on 19 September 2005 was with Sue’s consent and permission such that it did not interrupt any accruing period of adverse possession (deemed or actual)?
Sue died on 11 February 2019. Vicki and Ben have lived all their lives in the Property and continued to do so after Sue’s death. They are also the executors and trustees of Sue’s estate pursuant to the grant of probate of her Will. They claim to aggregate Sue’s possession with their own. This gives rise to the next question:
Whether any period of deemed adverse possession under s 14(4) or adverse possession pursuant to s 14(1) of the LAA, ending when Susan died on 11 February 2019 can be aggregated with any period of actual adverse possession by Vicki and Ben after 11 February 2019?
Until 2019, Vicki and Ben had not seen Angelo since 19 September 2005. They received a letter dated 31 May 2019, directed to Sue, from Wards Solicitors of Bairnsdale (‘Wards’), seeking to negotiate a matrimonial property settlement. Wards were told of Sue’s death, and after correspondence, the lodging of caveats by the plaintiffs and other matters, on 29 May 2020 Angelo gave the plaintiffs notice to vacate the Property. This gives rise to the question:
Whether service of the Notice to Vacate on 29 May 2020 interrupted any accruing period of adverse possession on that date?
However, by his closing submission the defendant concedes that the appropriate date from which to work back, as it were, is the date on which the counterclaim for possession was filed with the Court, 23 July 2020. It is not suggested that the service of the notice to vacate has any significance, other than to Angelo’s counterclaim to recover possession.
If the plaintiffs’ claims to title by adverse possession are rejected, they make an alternate claim which gives rise to the next questions:
Whether the plaintiffs are entitled to contribution from Angelo for one half of the payments Susan and the plaintiffs made towards reduction of the loan secured on the Property for which Angelo and Sue were jointly and severally liable, and for rates paid by them in respect of the Property, for the period from 1 May 2008 to 11 February 2019?
If yes-
(a)is that claim subject to any set-off in favour of Angelo arising from earlier payments by Angelo towards the acquisition of the property, earlier payments by Angelo towards the loan secured by the mortgage, Sue’s withdrawal of $15,600 to purchase a car in about 2000 or an occupation rent for Sue’s sole occupation of the Property during the period of the claim?
(b)are the plaintiffs entitled to a charge on the land to secure the payment of the contribution due?
The facts
Introduction
The parties agreed on a number of facts for the purpose of the trial of the proceeding and there are other facts of a circumstantial kind given in the evidence by both parties that are not disputed. I will draw on the oral testimony and the witnesses’ written statements, or outline (which differed little from a statement), without distinction as it is only where there were disputes of fact that the source is relevant. I will indicate in the account of the relevant facts set out below where there is a factual dispute, and deal with the dispute.
The evidence of Vicki and Ben was a mix of their own recollections and first hand hearsay from Sue and Sue’s mother, known as ‘Omi’. The plaintiffs relied on s 63 of the Evidence Act 2008 (Vic) (‘Evidence Act’) for the admissibility of Sue’ and Omi’s statements to, or conversations overheard by, Vicki and Ben. Notice of reliance on this first hand hearsay was given pursuant to s 67 of the Evidence Act both by the delivery of witness statements containing the hearsay and also by formal Notice referring to specific parts of those witness statements.[7] Counsel for Angelo accepted this evidence to be admissible. It is also relevant to observe the terms of s 66A of the Evidence Act, which provides that:
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.’
[7]Notice of Hearsay Evidence Pursuant to section 67 of the Evidence Act, dated 21 May 2021.
Some of the evidence given by Vicki and Ben concerned evidence of Sue’s feelings, intention, knowledge or state of mind.
Vicki gave evidence that Sue called her mother (Omi) at least once every day over the telephone[8] and visited her on the weekends. Some statements of first hand hearsay evidence are derived from overhearing Sue speak with Omi over the telephone or on a visit to her.
[8]Transcript Day 1, 44.10-11.
Early years
Angelo and Sue were married on 11 September 1982.[9] They had met when they both worked with AMI Ltd in Port Melbourne. Sue’s maiden name was Bergman. The following year they purchased the Property for $48,000 with a home loan from the National Australia Bank Ltd (‘NAB Loan’) together with the savings of each of them (the deposit of $4,800 and $1,443.54 by Angelo and $5,856.53 by Sue) plus a personal loan of $4,000. On 19 September 1983, Angelo and Sue became the joint registered proprietors of the Property and remained joint registered proprietors until after Sue’s death when, on 29 July 2019, Angelo made a survivorship application and became sole registered proprietor. Sue and Angelo resided at the Property as their residential and matrimonial home until Angelo left on about 10 July 2004. Angelo never again stayed in the house. Vicki was born on 27 March 1986. Ben was born on 13 August 1993. Both Vicki and Ben have resided at the property since birth and continue to do so today.
[9]Exhibit ‘B’, Witness Outline of Angelo Edward Gianchino dated 19 May 2021 (‘Angelo’s Witness Outline’).
In 1989 Angelo and Sue borrowed $20,100 from the Statewide Bank, later taken over by RESI (‘RESI Loan’) for the purpose of the purchase of a garage and fitting it out. RESI became the Bank of Melbourne Ltd. The garage is significant to some of the facts referred to later as it is where Angelo set up his home office and stored his personal equipment and reference materials.
In 1993 Angelo and Sue refinanced the NAB Loan (and presumably the RESI loan) with the Westpac Bank (formally the Bank of Melbourne Ltd), increasing the borrowed amount to $95,000 under a new loan account (‘Assetbuilder Account’), for the purpose of undertaking renovations to the Property. In August 2000, the limit under the Assetbuilder Account was increased to $120,000, to allow Sue to purchase a new car. Throughout much of this time, Angelo worked as a purchasing officer for Dana Australia Pty Ltd at Hallam and, after a period of time off work, as a parts specialist in the truck industry, particularly the ‘North American driveline’, for Daimler-Benz Australia Ltd and Mercedes Benz Australia Pty Ltd (‘Mercedes’). Angelo worked for Mercedes for about 7 years at sites at Mulgrave and Laverton North. He had a broad role which covered all parts on a truck except the engine.
Retrenchment
The conflict between the evidence given by Vicki and Ben and Angelo as to when Angelo was retrenched or made redundant before he left for Queensland is only relevant to an assessment of the accuracy of Vicki and Ben’s recall of events and conversations 16 years ago when they were much younger. In her oral testimony, Vicki (who turned 18 years of age in March 2004) said that her recollection was that Angelo had been made redundant and had started looking for another job in the same field earlier on in 2004. She remembered overhearing Sue and Angelo talking about it whilst Ben and she watched television.[10]
[10]Transcript Day 1, 17.7 – 17.12.
In her Witness Statement Vicki said that Angelo was laid off from his job with Mercedes in mid-2003 and was out of work for about 6 months before he started to talk about work in Queensland - towards the end of 2003. She said that in early 2004 she was present when Sue and Angelo discussed that an opportunity for Angelo to work had come up in Queensland. There were some discussions at that time which she overheard between Sue and Angelo about the whole family going to Queensland. Sue said that there was no point in all of them going as Vicki was finishing VCE in Victoria that year. Angelo then suggested that he go up first and the rest of the family could follow. Vicki later heard Sue tell her mother, Omi, that Sue did not really want to go to Toowoomba because the closest family was in Brisbane, a few hours away, and she would not know anyone in Toowoomba and she would be leaving a good job in Melbourne, have to pull Ben out of school and start a brand new life, when all her family, friends and a good job were down here. She did not want to start in a new place.
Angelo gave evidence that he was made redundant by Mercedes in early July 2004,[11] and that he worked at Mercedes throughout 2003 and the first half of 2004. From the time he started at Mercedes in 1994 through to July 2004 he worked with no break in the employment until retrenched.[12] He produced a statement of his Westpac ‘Classic Plus’ bank account for the period from 2 July 2004 to 26 July 2004[13] which showed a deposit by Mercedes of $33,841.23 on 5 July 2004 and a deposit by ‘Westco Truck’ by way of salary on 15 July 2004.
[11]Transcript Day 1, 135.17 -135.19.
[12]Transcript Day 1, 135.24 – 135.27.
[13]Exhibit A, Westpac Banking Corporation electronic statement for a Classic Plus account directed to Mr A.E. Gianchino at 13 Prosser Street, Toowoomba, Queensland 4350 for the dates from 2 July 2004 to 26 July 2004, tendered on 25 May 2021, Transcript Day 1, 136. This document had not been discovered by Angelo before trial.
In my view, Angelo’s evidence as to the approximate time he was made redundant or retrenched from his employment with Mercedes should be accepted, it being supported by a contemporaneous written record. However, Angelo produced only one of a series of bank statements. It is statement 69. It was not included in his discovery of documents as, according to his Counsel, it only became relevant through the witness’s evidence about when Angelo was made redundant. [14] It showed what Angelo described as his retrenchment package from Mercedes of $33,841.23 on 5 July 2004. It does not show earlier payments for salary from Mercedes and that retrenchment payment may have been made later than the last day he worked. Nevertheless, Angelo gave uncontested evidence that he worked until early July 2004.[15]
[14]Transcript Day 1, 40.2-6.
[15]Transcript Day 1, 135.17-19.
Further, the statement produced for that account is missing at least one page. On the first page produced there is a payment into the account of the redundancy payment by Mercedes leaving a credit balance of $32,853.29. The next page starts with a deposit of $100 by Westco Truck Sales with a resulting credit balance of $1,004. There is clearly a missing page or pages where a large sum of money was paid out of that account. To where is a mystery, as the missing page was not identified as missing at the time the evidence was adduced.
Angelo also said that one or two months before he ceased work with Mercedes, he got word that the ‘phone room’ at Mercedes in Mulgrave was going to be moved over to the new warehouse in Laverton North. This presumably meant that the Parts Department, in which he worked, would also be moved, as he said his redundancy arose from Mercedes moving its Parts Department from the Head Office in Mulgrave, about a 30 minute drive from the Property, to a new warehouse in Laverton North, about a 90 minute drive. If Angelo had continued with Mercedes when it moved to Laverton North, he would have had to drive through the Central Business District of Melbourne, I assume because there was then no ring road. This is the ostensible reason for his retrenchment, although it is unexplained that during his years of employment with Mercedes he had previously worked at Laverton North, according to his Witness Outline of Evidence.[16] It is common ground, however, that Angelo and Sue had during this time continuously lived in the Property.
[16]Angelo’s Witness Outline, [16].
In his evidence, Angelo said that he and Sue had a number of discussions about Angelo moving to Queensland to obtain employment (given a lack of job opportunities in his field in Melbourne). It seems highly likely that these occurred before he was offered the job in Toowoomba, which came through only shortly before he left (see the quoted evidence below at [44]). I think it is likely that Vicki has mistaken the time at which Angelo started discussing the possibility that he would be retrenched and has conflated those discussions and the discussions she says she overheard between her parents about moving to Queensland.
Angelo’s evidence was that at the time he was made redundant there were limited opportunities to stay in the role of a product specialist for North American driveline in Melbourne, which was his specialisation and the area he had been working in for many years. At that time in Australia there were three Original Equipment Manufacturers (‘OEMs’) in Melbourne (Mercedes, Kenworth and International) and two in Queensland (Mack Trucks and Western Star Trucks).
Angelo said that he made enquiries of all the OEMs in Melbourne as to whether they had a position that suited him and none did. So he was left with finding employment elsewhere. The other OEMs were in Queensland. As he said in his evidence ‘So a move was going to be happening ‘.[17] Having regard to his evidence referred to below, these enquiries must have happened before he ceased working at Mercedes. It is likely that Angelo discussed matters with Sue before he ceased that employment and Vicki and Ben overheard some of those discussions. He said the one offer that was made in Melbourne was with a company in West Footscray which was a job working behind a freight counter at a retail outlet. At that time, he had never had retail sales experience. He then let things slide (for a time), which he said was probably very silly.[18] So there was clearly an elapse of time between investigating where he could find work and the end of his work at Mercedes.
[17]Transcript Day 2, 6.3.
[18]Transcript Day 1, 137.8-24.
There is from these facts an inference that discussions overheard by Vicki may have been over a period of some months before Angelo’s departure. This goes some way to explain her evidence that places his ceasing to work for Mercedes earlier in 2004.
The unaided recollection of Vicki was that Angelo had been laid off from work with Mercedes earlier in that year than appears to be the case. It is often difficult to place the timing of events with any precision without the aid of some contemporaneous document or notable event. It is only later that the parties have agreed that Angelo in fact departed precisely on 10 July 2004.
Angelo gave the following evidence about the circumstances in which he received the offer of employment in Toowoomba –
I resigned – I – I accepted a retrenchment package. I was home the next day and I got a phone call, and this was from a dealer up in Queensland, who said, ‘What are you doing at home? Why aren’t you at work?’ I sort of told him, you know, what happened, because he had already rung the office about it, and he said, ‘Well, would you be interested in a job up here?’ Now, that is with Westco Toowoomba. And I thought, well, I didn’t know a lot about Toowoomba itself at that time. I thought about it. And the more I thought about it, I thought, okay, you’re dealing with a small town. The prospects are reasonably good. I looked it up on the internet at that time and so the general surrounds was good. From Toowoomba, you had probably an hour’s drive to further major centres around South East Queensland. You could also go west, of course. But it’s a central area, which was quite good. There was plenty of schools up there, both primary and secondary colleges are in there. It’s had its own little theatre establishment, so I could do some work. Um, I thought, well, why not give it a go? The worst thing you’re going to do is fall on your nose, but at least you’ve had a go at it. If you could set something up where you can have a – rent a house, furnish the house, then bring the family up when it’s convenient, and then – for example, over the Christmas time frame – then, the kids could either finish school in Melbourne and start in Toowoomba, which to me would have been a logical progression. There was a number of supermarkets in Toowoomba where Sue could get employment if she wanted to. I thought it was a good move. …[19]
[19]Transcript Day 1, 137.25-138.23.
Apart from the memory she had of when Angelo ceased working for Mercedes, and her memory that he was home unemployed for a lengthy period, I found Vicki’s evidence to be forthright, honestly given and the best she could do having regard to the fact that some of the critical events occurred over 15 years earlier and that she was a teenager at the relevant time undertaking her year 12 school studies, or shortly after that. She was unemotional throughout her evidence and a testing cross-examination, except when mention was made of her mother’s death. She seemed to me to honestly concede some inconsistencies between her witness statements and her oral testimony.
It is entirely unsurprising that some of Vicki’s evidence was conclusory in nature, rather than attempting to relate conversations word for word. Where her evidence was in conflict with Angelo’s evidence about events she participated in and witnessed herself, I accept her evidence in preference to Angelo’s unless Angelo’s evidence is supported by some corroborative documentary evidence.
Although Vicki and Ben had a personal financial interest in advancing a case that established the deliberate exclusion of Angelo from the property from the earliest time possible, so did Angelo have an equivalent interest in countering any such exclusion. Notwithstanding that Angelo had not been in touch with his children for over 15 years, from late 2004, had made no contribution to the mortgage over the Property since April 2008 (and between mid-2004 and April 2008 his payments were in lieu of child support – on both the evidence given by Vicki as well as Angelo’s own evidence[20]), he claims the whole of the Property by right of survivorship. The material in the Court Book shows that he has a partner or friend, Lorraine Foxall, with whom he has rented premises in Sale, Victoria.[21] The site value of the Property is $1,075,000 and the capital improved value is $1,125,000, according to the 2020-2021 Rate Notice from the City of Whitehorse.[22] That is a significant windfall to Angelo if he is successful. The particulars in the Statement of Claim clearly gave notice to Angelo of the fact that Sue changed the locks to the house ‘in June or July’ 2004, which was clearly the best recollection that Vicki and Ben had of the time that was a short time after Angelo had left in mid-2004. I think Angelo has very strong and persuasive reasons to have invented the only significant event that casts doubt on the evidence from Vicki and Ben as to the changing of the locks in 2004, that is he used his key to gain entry to the house in September 2005.
[20]Transcript Day 2, 66.26-28.
[21]Court Book, 193-198.
[22]Court Book, 203.
Relationship between Sue and Angelo
Angelo gave evidence that his marriage with Sue had ‘not been going well’ for more than 12 months before he was made redundant by Mercedes. During that period, Sue was working nightshift at a local supermarket which meant that Sue slept during the day and they spent little time together. Angelo thought that a move to Queensland would be a fresh start for all of them. [23]
[23]Angelo’s Witness Outline, [23]; Transcript Day 2, 39.29-30.
Leading up to his departure to Toowoomba, Sue and he had discussions about Angelo taking up a job in Queensland. Sue did not say much during these discussions. She was not enthusiastic about the prospect of moving to Queensland but did not say she was against it.[24] He had no discussions about it with Vicki and Ben because, he said, Sue and he needed to have a common position so that when they talked to the children they both spoke as a single person.[25] He took the job in Toowoomba without Sue having agreed to move up to Toowoomba ‘because she didn’t say no I assumed yes’.[26] That was a remarkable assumption. I do not accept it is the truth.
[24]Angelo’s Witness Outline, [19].
[25]Transcript Day 2, 7.18-25.
[26]Transcript Day 2, 37.6-8.
In my view, and I conclude, Angelo took the job in Toowoomba knowing that Sue had not agreed to go as well. In cross-examination, Angelo said that the Toowoomba job was as a front counter salesperson.[27] He agreed the job in Toowoomba was similar to the one he was not prepared to do in Footscray. He did not like it but felt he could do the job.[28]
[27]Transcript Day 2, 38.2-3.
[28]Transcript Day 2, 38.12-19.
I come to this conclusion notwithstanding that Angelo said that he moved to Toowoomba with the understanding that Sue and the children would follow once he had found somewhere for the family to live, and he only took personal belongings which he would be likely to need in the coming months. I accept that he left personal items at the Property, including in his home office in the garage at the rear of the Property. In the office he had a desk and filing cabinets. The filing cabinets contained bank statements and other important documents that he retained, such as his mother’s passport.[29]
[29]Angelo’s Witness Outline, [20].
Angelo gave evidence that he thought that a move to Queensland would be a fresh start for all the family. Angelo had an interest in lighting and sound, and perhaps other functions, in amateur theatre productions, and kept in his home office equipment and materials relevant to that as well as manuals and specifications for truck parts and other reference materials relevant to his work and private interests.
The evidence given by Ben, which was not contested, was that Angelo spent a lot of time in his home office in the period before he left for Queensland.[30] He had become more withdrawn, only coming in to the house for dinner, and spending more time on weekends at the Malvern Theatre.[31] He learned later from Sue that she had suggested marriage counselling to Angelo but he was not interested.[32]
[30]Transcript Day 1, 107.2-13.
[31]Transcript Day 1, 101 – 102.
[32]Ibid.
Vicki’s evidence, again uncontested, was that Angelo would spend a lot of time outside in his office. He would come into the house for dinner, but they would not really talk that much anymore, and that Angelo was like ‘a boarder in the house.’[33] Vicki said that Sue had tried to get Angelo to open up. She had asked if he wanted to go to counselling, and Angelo ‘pretty much just stopped her at every turn for her to try and get him to open up’, so Vicki’s understanding was that Angelo moving to Queensland ‘was literally the last straw that broke the camel’s back, as they say, with their marriage’.[34]
[33]Transcript, Day 1, 83.15 -27.
[34]Transcript Day 1, 52.4-9.
The plaintiffs submitted that:
(a) Angelo’s decision to take the job in Toowoomba is not credibly explained by the relocation of his Melbourne job to Laverton North. The inconvenience and upheaval involved with taking a job in Toowoomba was far greater than the inconvenience of driving daily to Laverton from Box Hill. Furthermore, it was for the same money as the job in Laverton and involved duties as a front‑counter retail assistant that he did not like doing.
(b) His main criteria justifying the redundancy and then taking the job in Toowoomba were his own assumptions, thoughts and expectations. He had scant regard for Sue’s views. The timeline on his own version of events illustrates this starkly. He was made redundant in early July, was offered the job the next day and then departed on Sunday 10 July to commence work on Tuesday 12 July. There were only a matter of days, therefore, between learning of the job opportunity, accepting it and then leaving Melbourne to take it up.
(c) Angelo’s evidence in chief about what Sue in fact said and what he himself thought about the merits of a move to Toowoomba is mixed together in such a way that makes it unsafe to accept that it was Sue who first raised that ‘any move would have to be at the end of the year’. In cross-examination, he put this differently. He said he had the impression that Sue and the family were going to follow him to Toowoomba because she did not say no.[35] She had voiced some concerns with the children’s education and he thought ‘Well bring them up over Christmas’. Even if one accepts that Sue did make this point, it is clear from the entirety of his evidence about his few conversations with her on the subject in early July 2004, that he had decided to leave his family home and relocate to Queensland, as it turned out to Toowoomba, with or without his family following him. Whether he assumed, understood or expected that Sue would follow him to Toowoomba with the children, she herself – on his own evidence – had not said that she would or had done anything else to manifest an intention to leave her home in Melbourne. Indeed, he himself said he did not mention anything to the children precisely because he and Sue had not agreed on a potential move to Queensland for the family, so there was no ability to speak as one.
[35]Transcript Day 2, 37.6-8.
In my view there is merit in these submissions. It is odd that Angelo said his expertise was in working for an OEM as a parts specialist in the truck industry, particularly the ‘North American driveline’, which covered all parts on a truck except the engine, and that he did not want to work at the sales counter, but when offered that job in Toowoomba he took it with alacrity. In addition to this, his marriage was, to put it bluntly, ‘on the rocks’. Add to that, despite his protestations that he sought work immediately in order to continue to support his family, Angelo received over $33,000 as a result of his retrenchment from Mercedes. There is no evidence that any of these funds were deposited into the Assetbuilder Account or deployed in any way for the benefit of his family. In fact, as I have pointed out, the personal bank account of Angelo into which the redundancy payment was made is missing a page. This missing page is where the money was paid out of that account. To where is a mystery.
The Assetbuilder account had a re-draw facility and if he had intended to maintain his long term connection to the family I would expect a serious family man to deploy at least a part of these funds for their benefit, and to secure, the whole family’s place of living. Plainly he retained them for his own independent purposes. I think from all the evidence I have heard of the relationship between Angelo and Sue, the likelihood is that this was paid to another account of Angelo’s, for his own use and benefit in anticipation that he would need to purchase accommodation for himself alone, without the benefit of the proceeds of sale of the Property or borrowings secured against it, and the later email of 1 February 2005 bears out that this happened (see [90] below).
When the events at the time of his departure are then taken into account, the strong inference is that Angelo was leaving the marriage and the home. I turn to the events of his departure.
Departure for Queensland
It is an agreed fact that Angelo left the Property to go to Queensland on or about 10 July 2004. Vicki’s evidence is that one Saturday morning she was asleep, as was Sue. Sue had come off night shift and Vicki ‘was just doing the whole teenage sleep‑in.’[36] Vicki had heard Angelo moving around the house and had heard Ben was up. Vicki overheard Ben go into Sue’s room and wake her up because Angelo was leaving there and then to go to Queensland. Ben then came into her room and said ‘Hey, get up if you want to say goodbye to Dad. He’s leaving now.’ Vicki got out of bed and walked out of her room and saw Sue come out of hers, ‘both in our nighties’.[37] They went to the front porch and Angelo was literally putting the last little bits of his possessions in his car, about to close the door and back out of the driveway. She states: ‘Mum had this look on her face, like, what are you doing? …There may have been some talk; I don’t remember what it was, but then he backed out of the driveway and made his way up to Toowoomba.’[38]
[36]Transcript Day 1, 18.22-19.9.
[37]Transcript Day 1, 19.2.
[38]Transcript Day 1, 19.6-9.
Ben said that one weekend morning in May 2004, he got up at about 7.00am and saw Angelo packing his car. He asked Angelo if he was going to the theatre (Angelo was involved in a theatre group in Malvern at the time where he was responsible, it seems, for the lighting). Angelo told him that he was heading off to Queensland. He remembers running inside and waking up Sue and Vicki and telling them that Angelo was going to Queensland. Sue at this time worked as a shelf stacker overnight in a supermarket, so she slept during part of the day. Sue got up and went to the front porch and asked Angelo ‘where are you going?’ Angelo said that he was going to Queensland as talked about. Sue then told Vicki and Ben to go inside. Angelo and Sue spoke further but Ben did not hear what was discussed. When Sue came back inside, Angelo drove off. Sue told Vicki and him that Angelo was off to Queensland and that he would not be coming back. He remembers Sue going back outside soon after and having a smoke next to the mailbox in the driveway.
Angelo’s evidence was that the job he went to Queensland to take up was in Toowoomba with Westco Truck Sales. He had arranged to start work on the Tuesday following his departure from Melbourne. He had discussed this move with Sue earlier in the week, but there was no mention of it on the morning, and Vicki and Ben seem not to have known of it. Angelo said that on the morning of his departure, he had expected to be able to say goodbye. He went into the bedroom to say goodbye to the children but they didn’t want to say anything to him and they did not want to kiss him goodbye or say goodbye at all. He was just left cold.[39] He packed as much as he could fit into his Magna station wagon. This included about 6 boxes, a suitcase, TV, Sound System, computer, printer and other loose clothes.[40]
[39]Transcript Day 2, 8.18 – 9.1.
[40]Transcript Day 2, 9.24-30.
The plaintiffs submitted that this evidence shows:
(a) That Angelo left the family home once and for all on 10 July 2004 to move to Queensland permanently and to establish another home for himself up there. Sue had not agreed to give up her home in Melbourne and after 10 July 2004 continued to live there as her home and provide a family home for the children. The ‘silent treatment’ he received when the time came to say goodbye speaks something of the trauma that his departure caused, especially for his children who had had no warning. Perhaps this can be explained as a certain lack of insight on Angelo’s part, rather than sheer callousness, but the only relevant fact for this proceeding, it was submitted, is that he was leaving the family home and they were staying in it.
(b) He took as much as he could fit into his station wagon. It included his clothes. This was not the departure of a man intending to return to the possessions left behind. The reason he himself gave for leaving them was that they would not all fit in the station wagon.[41] He was not leaving them in the Property so that he could return home from time to time to use them for his benefit there. They were being left behind with Sue and the children in the family home so that they could keep them until they would pack them up for him to be sent Queensland, consistent with his expectation that they would join him later.
[41]Transcript Day 2, 9.24-30.
The submission is in substance that Angelo was leaving for good and it is borne out by subsequent events, particularly including, as I relate below:
(a) About two weeks after leaving he was told by Sue that she did not intend to follow him to Queensland;
(b) In November 2004 he left Westco Truck Sales in Toowoomba and got a job in Brisbane with Western Star Trucks (an OEM), about which move there was clearly no discussion between Angelo and Sue (see below at [84]);
(c) He made no attempt to return home for Christmas 2004 (saying he was working), nor is there any evidence of sending greetings or presents at Christmas;
(d) In late January and early February 2005 Angelo reduced the amount he was paying into the Assetbuilder Account, ostensibly because he had lent Vicki $2,700 to undertake a part of a massage course (see below at [90]);
(e) In March 2005 Angelo asked Sue to pack about 90kg of his equipment in his home office and despatch it to him in Brisbane (see below at [93]-[96]);
(f) That when he visited in September 2019 there was no request by Angelo to stay at the Property, nor any attempt on his part to stay there. His request for permission, in effect, to come and get some of his things is significant (see below [102]-[103]).
Events after departure
When Angelo arrived in Toowoomba he stayed in a motel, and then obtained a serviced apartment. He does not remember calling Sue, but believes he would have. He had no contact with Vicki and Ben.[42] He then found a rental property and set up a phone line which also gave him an internet connection for emails. He believes he would have spoken to Sue once or twice per week.[43]
[42]Transcript Day 2, 12.12-13.
[43]Transcript Day 2, 11.10-15.
He expected Sue and the children to follow him to Toowoomba. But within weeks of his move she had said in an email that she did not want to move and nor did Vicki and Ben.[44] Angelo said in his evidence in chief that:
…while I was in Toowoomba she basically said to me, ‘No, we’re not coming up. Um, the children are staying here’. She’s staying there in Melbourne and basically, ah, ‘You’re out there on your own’.[45]
[44]Transcript Day 2, 12.14-24.
[45]Transcript Day 2, 20.12-16.
This was confirmed by Vicki who overheard Sue talking to her mother, Omi, two or three weeks after Angelo departed. Omi had asked Sue whether Angelo could just come back whenever he wants. Sue said something along the lines of she did not want him ‘to just sort of turn up randomly because maybe he doesn’t want to live up in Toowoomba anymore and everything is back to normal again. She didn’t want that anymore.’[46]
[46]Transcript Day 1, 53.21-29.
In her cross-examination, Vicki expressed the concern differently - that Omi had a concern that Angelo would come back and possibly take things from the house. Then Vicki essentially repeated her initial evidence that in the conversation she had overheard, Omi had asked Sue whether Angelo could come in and be in the house and do whatever he wanted when they weren’t around and Sue had then said that she did not want him in the house anymore.56 It was submitted by the plaintiffs that nothing turns on this discrepancy. What the conversation reported touched on was Angelo coming back to the house for any purpose, as he chose, and that Sue wanted to prevent that from occurring. The clear intention expressed was that Angelo was to be excluded from the house for any purpose. The defendant, however, relied on this and other discrepancies to cast doubt on the reliability of Vicki’s evidence generally, especially given that much of the critical evidence was first hand hearsay. I think it is likely that Vicki, in her reference to Sue fearing Angelo would return and take things from the house, was in her mind referring to a distinction between Angelo having access to the garage as compared with the house. The garage is where Angelo had his office and the material in it. In my view Vicki was giving her evidence honestly and as accurately as was possible in the circumstances and, despite the inconsistencies, I accept the general thrust of it, and, as I will come to, the timing of the critical events. That leads to the first lock change.
The first lock change
A week or two after this conversation with Omi, Sue and the children went to Bunnings to get new locks for the house and to get keys cut for Sue, Vicki and Ben, and a spare set.[47] Vicki said Sue and Ben changed the locks on the back screen door, the back solid door, the front screen door and the front solid door. Vicki looked on and helped as best she could as she was not as handy as Sue and Ben.
[47]Witness Statement of Victoria Elizabeth Gianchino dated 13 May 2021 (‘Vicki’s Witness Statement’), [9]; Transcript Day 1, 20 – 21.
Ben said that Sue had said in his presence ‘stuff Angelo if he thinks he can come back’.This evidence has the ring of truth to it. His evidence was that they all went to Bunnings to buy new locks and Sue had carried out the change of the locks. Both Vicki and he were there, he said, when the locks were changed. Ben did not initially mention that he had any involvement in the work of changing the locks, whereas Vicki said he helped.
There was extensive cross examination of Vicki and Ben about their evidence as to the changing of locks on this occasion. In the cross-examination of Vicki, she said that Ben was more watching Sue and handing her things, but it was both Sue and Ben that did the changeover.[48] In her cross-examination, Vicki was confronted with the difference between her recollection of who was involved in the changing of the locks and Ben’s recollection, as Ben did not say, at least in his Witness Statement, that he had any role in the process. Vicki was asked whether her recollection of the day had been altered a bit over time and she responded:
Possibly. It has been the better part of about 20 years since it actually happened, but I do remember them standing especially at the back door because that was always the hardest one to change a lock on, both of them with their hands on the locks trying to lever this thing in to actually make it work. That is what I remember.[49]
[48]Transcript Day 1, 54.12-14.
[49]Transcript Day 1, 55.17-23.
When asked whether she had picked 2004 because it helped their case she responded:
No. And it – no. Not at all. Because I remember the different types of, like, mum looking for the locks and Ben helping her and then the second time as well.[50]
[50]Transcript Day 1, 55.28-31.
In my view Vicki was honest and told the truth about this change of the locks. She was then 18 years old. She could remember details of the visit to Bunnings and her mother’s ability with things mechanical that gave the sort of detail that confirmed her mother’s ability to undertake the sort of work involved, which I infer was a changeover of the barrels of the locks.[51] Most students find their VCE year memorable and significant events that happened during that year are often remembered.
[51]Transcript Day 1, 97.1-11 (Ben’s evidence in relation to the second lock change).
Ben’s evidence showed that his memory of the event was less clear. Nevertheless his evidence was not seriously shaken in cross-examination as to the happening of the event, just the detail. He said in his evidence in chief -
I do recall going to Bunnings with Mum and Vicki and then the changing of the locks, um, by which – we were all present for the changing of the locks because, um, Mum needed assistance. Someone had to hold the door. Someone had to hand tools and also do some basic, um, assembly or assistance with the assembly work that Mum’s doing.[52]
[52]Transcript Day 1, 90.13-19.
In cross-examination he attributed his memory to the association with his father leaving, being a big event in the life of a 10 year old. I think he also spoke truthfully about this event. But Ben could not accurately recall that there were four locks to change, the two solid doors and two screen doors,[53] which is perfectly explicable, as he said, because it was a long time ago. He was quite certain that at least the two front and back door locks were changed. [54]
[53]Transcript Day 1, 111.21-28.
[54]Transcript Day 1, 111.1–112. 2.
The spare set of keys were left on the inside of the front door as what Ben called a ‘lazy safe lock instead of using the deadbolt in the, um, wooden door.’[55]
[55]Transcript Day 1, 92.11-13.
Neither the broken lock on the side gate nor the broken lock on the garage were changed when the locks to the house were changed shortly after his departure. Vicki was cross-examined about this and said Sue was not concerned about anything Angelo might take from the garage, it was the house that Sue was concerned to exclude him from, as Vicki said ‘…she didn’t want him in the house’.[56]
[56]Transcript Day 1, 61.1-15 at 15.
Ben’s visit to Toowoomba
Ben flew up to Brisbane for a visit in September 2004 and stayed for about 4 days. It seemed as if it was not a great success as when Angelo took him to the airport to go home (he was an unaccompanied minor and was delivered into the care of an airline hostess), he did not even say goodbye.[57] This is probably because, as Ben said in his Witness Statement, he was angry with Angelo for leaving the way he did, and later because he had not heard from him since his visit to Toowoomba.[58]
[57]Transcript Day 2, 13.12-14.6.
[58]Witness Statement of Benjamin Paul Gianchino dated 13 May 2021 (‘Ben’s Witness Statement’), [6].
Email exchange in October 2004
The first email discovered between Angelo and Sue is from 17 October 2004, which would seem to be the first email chain between them, as it begins with a message from Angelo with the subject ‘Test message from AEG’.[59] The body of the email simply said ‘Kind regards Angelo Gianchino’. This elicited a response from Sue on 23 October 2004 which started with ‘Kind Regards???’ and went on to be critical of his brevity, then saying that ‘I guess that at least I now have confirmation of your e-mail, should the need arise to contact you –after all at the cost of a local call – it does work out cheaper than ringing S.T.D. Anyway the kids say Hi and hope all is well up there. Sue’. Neither express any open affection. Moreover, the reference to ‘should the need arise to contact you’ is something of a put down as, on its face, it refers to a prosaic or matter of fact need and not a matter of matrimonial or family affection.
[59]AEG standing for Angelo Edward Gianchino.
This is followed by a response from Angelo on 25 October 2004 reporting on his employer taking him and other employees to Surfers Paradise for the Indy 300 car race, which in turn elicits a chatty response from Sue in the course of which Sue says ‘Sounds like Westco is a reasonable company to be working with (shame that they aren’t down South).’ The email is mainly about Vicki and Ben and is simply signed ‘Sue’ with no salutation apart from ‘That’s it for now. E-mail again soon!!!!’.
This aspect of the email chain received some attention in the evidence. It was put to Vicki in cross-examination that it indicated that her parents were still communicating in a very friendly manner, to which she agreed ‘from that email, yes’.[60] It was also put to her that there was no mention in the email of the locks having been changed, and that Vicki had no knowledge of any such conversation in 2004 having occurred. She replied ‘To my knowledge, no.’[61] This part of the email chain was also put to Angelo in his evidence-in-chief, and he stated that his relationship with Sue at that time varied from warm to cool.[62] In cross-examination, he did not agree that the reference to Sue saying ‘shame that they aren’t down south’ was an indication that the marriage was now at an end, with him up north and her down south.[63]
[60]Transcript Day 1, 53.6-9.
[61]Transcript Day 1, 53.10-14.
[62]Transcript Day 2, 15.1-2.
[63]Transcript Day 2, 52.26-28.
The plaintiffs submitted that little can be read into this email for any purpose relevant to this proceeding. The evidence overall shows that communication between Angelo and Sue was generally poor by mid-2004 regarding their intentions and actions affecting their marriage. Within the context of the traumatic circumstances of Angelo taking a new job and moving to Toowoomba without much in the way of consultation with her and without informing the children, it is not implausible that she may in return have failed to mention her own changing of the locks to prevent any future entry to the former family home. In any event, one moderately friendly email in the context of ‘warm to cool’ ongoing communications does not establish a negative by omission.
Angelo submitted that the content of the emails – particularly in the earlier days - were friendly in nature, and do not indicate a breakdown of the marriage to the point of Sue actively taking steps to prevent Angelo from returning to the family home. That is the only relevance of this aspect of the case. Whether Angelo should have done more to save his marriage, or to mend his relationship with his children, has little bearing on the matters upon which the Court must decide.
Angelo also submitted that the content of the email of 25 October 2004 is quite telling. In that email, Sue provides Angelo with an update on the children (including Vicki’s apparent approval about Angelo’s attendance at the Indy 300) in a manner which can only be described as one of excitement (given the extensive use of exclamation marks), and which makes the point of saying that it’s a shame the company Angelo is working at is not ‘down South’. Angelo also submitted that, given the limited contemporaneous documentation which exists in this proceeding, this email in particular should carry considerable weight. It shows a wife who is clearly excited about updating her husband regarding their children’s activities, expresses dismay that Angelo is not able to be working in Melbourne, and which signs off in a manner which can only be seen as very much looking forward to receiving more communications.
I agree with the plaintiffs’ submissions regarding the email. It cannot be read in isolation from the other emails in the chain. When read as a whole they cut both ways, for an ongoing relationship and against it, which is consistent with the way Angelo described the relationship at this time – ‘warm to cool’. It is true that the particular email of 25 October 2004 from Sue to Angelo is ‘chatty’, but to say it shows ‘excitement’ seems to me to go too far. A review of all the emails shows that Sue has a habit of emphasising statements with multiple exclamation marks or question marks, and sometimes both. It is not inconsistent with the locks having been changed in a relationship at the time that varied from ‘warm to cool’.
Angelo’s change of jobs
The next email chain Angelo has unearthed commences on 8 November 2004 from Angelo to Sue with the subject ‘Latest News’. It is addressed to Sue, Vicki and Ben and relates that Angelo has left Westco Truck Sales as of 29 October 2004 and has a job with Western Star Trucks in Crestmead, Brisbane approximately 10-15 minutes from his soon to be new residence, a town house in Logan City (in the suburb of Woodridge). This is clearly the first time Angelo has mentioned to Sue that he had already left Westco Truck Sales and had taken a new position and a new residence in Brisbane. It ends, characteristically for Angelo, with ‘Kind regards’.[64]
[64]Court Book, 74.
Sue responds on 10 November 2004, saying she is ‘Sorry to hear your latest news. But, at least it sounds like work is not as hard to get up there as it was down here.’ The balance of Sue’s email concerns Angelo’s Toowoomba telephone account with Telstra being included in the account for the telephone at the Property and Sue asking to pay Angelo’s telephone bill out of the Assetbuilder Account, to which Angelo responds positively on the same day. Clearly, Sue was paying the bills for the Property at this time and Angelo was not. The last email in this chain is from Sue dated 16 November 2004 reporting she got a call relating to the Toowoomba property and asking him to speak to the caller.
No Christmas at home
The next email is dated 23 December 2004 from Angelo to Sue, Vicki and Ben wishing them a happy Christmas and New Year. There had clearly been other communications because Angelo asks how Vicky went with the repairs to a Minolta camera. He says that he will be working through the Christmas and New Year period as will his boss. Given the proximity to Christmas Day it is a brief and cheerless message. There is no indication anywhere that Angelo was seeking or intending to visit his family in Melbourne at this or any other time. Much later, in September 2005, he did visit, to which I refer below.
Angelo reduces the mortgage payments
There is then an email chain in early January 2005 concerning Sue taking money out of the Assetbuilder Account to repair the lawn mower after it had been damaged by the use of the wrong fuel (by Ben).[65]
[65]Court Book, 76, email from Sue to Angelo, 6 January 2005.
Angelo submitted that when Sue asked to take money out of the Assetbuilder Account to repair the lawn mower this was hardly the actions of a wife who has made the decision to cut Angelo out of the family’s lives, and – more critically – gone so far as to change the locks to the Property. That proposition does not follow from this email. Angelo and Sue were both able to operate the account at this time, and Angelo had agreed to continue to contribute the monthly instalments required to keep the mortgage up to date. Each of them clearly operated their own separate bank accounts. It is implicit in their arrangements that neither should re-draw funds from the account without the agreement of the other. As the evidence elsewhere shows, Sue was paying all the outgoings for the maintenance and upkeep of the Property, all the utilities and, after 2005, the Council rates. Here was an instance of damage to the lawn mower brought about by Angelo’s only son, young Ben, then 11, putting the wrong fuel in a two stroke motor mower whilst doing what had previously been Angelo’s job. No doubt Sue’s finances were tight.
There is another email chain in February 2005 concerning Angelo lending money for Vicki to undertake a massage course (by putting money into the Assetbuilder Account from his personal banking account)[66], to be repaid in 12 to 24 months. This email is significant because Angelo says:
This has changed my plans for the next 12-24 months. I cannot continue paying the full amount in to asset a/c, I will be able to pay $600 per month into the asset a/c as of March, you will have to make up the balance. I was trying to save same money to form a deposit on a house!. I would have appreciated same (sic) warning of this situation.
…..
I will cover the rates payment for this year, there after (sic), you need to budget for it.[67]
[66]Transcript Day 1, 24.4 – 24.13.
[67]Court Book 77, email from Angelo to Sue, 1 February 2005.
In relation to this loan for Vicki to undertake a massage course, she gave uncontested evidence that she had already paid half of the course costs herself. Sue told her that the money was given by Angelo on the proviso that she was to pay it back. Angelo put these funds into the Assetbuilder Account which Sue told her she withdrew. When Vicki got the money to pay Angelo back, he never asked her to pay it back and the funds just stayed in her account. They were unable to get in touch with Angelo to arrange repayment. After about six months of these funds sitting in her account Vicki started using the money for household expenses.[68]
[68]Supplementary Witness Statement of Victoria Elizabeth Gianchino, filed 21 May 2021 (‘Vicki’s Supplementary Statement’).
The evidence given by both Vicki and Angelo that his payments towards the mortgage were is contribution to the support of his children, coupled with the fact that when he left for Queensland he had over $30,000 from his redundancy package from Mercedes and was out of work for only about a week, raises a red flag regarding his conduct in reducing payments into the mortgage merely because he lent Vicki $2,700 for 12-24 months. I conclude it is the direct consequences of Sue rejecting the move to Queensland and the resulting marital separation. Angelo is extracting himself from involvement with his family and his home. There was no ‘push back’ by Sue, which speaks to her rejection of him personally and his exclusion from what by then was her home.
Shipping Angelo’s belongings
Later that month there is an email chain where Angelo is attempting to have Sue find some software called ‘Soft Plot’ he required in Brisbane.[69] This is the beginning of a series of emails, and presumably telephone calls or other emails not discovered, concerning shipping a large quantity of Angelo’s materials from his home office to Brisbane. On 4 March 2005 Sue emailed Angelo as follows:
As promised, as today was the first day l;ve (sic) felt human since Tuesday, I have managed to box all but two milk crates. So far, we have three boxes weighing roughly 68 Kgs in total the remaining two crates could be up to another 15-20 Kgs. So, rounding up roughly 100 Kgs - give or take - you have to remember I only have the old bathroom scales at my disposal to weigh them. Still no luck in regard to Soft Plot.[70]
[69]Court Book 79, email chain between Angelo and Sue 25 February 2005.
[70]Court Book 80.
After a couple of other emails, Sue emails Angelo on 8 March 2005 giving the dimensions and weights of 5 boxes for shipping (totalling 90 kg) and concluding:
And, again, I state the Soft Plot IS NOT on the shelves in the Garage or under the Work Bench or in the Desk/Return. Vicki and I spent quite a while this morning physically looking through the ‘stuff ‘ you have in all these areas - and there is NOTHING remotely resembling your description (let alone marked Soft Plot or Light Shop!!!!!! If we can’t find it - then “another set of eyes” as you so put it WILL NOT find it either. There is no need for Steve Gagen to search for it.[71]
[71]Court Book, 83.
The Soft Plot software was finally found, looking rather different from the description Angelo gave, and on 10 March 2005 Sue emailed Angelo to tell him she dropped all the boxes, including Soft Plot, to a depot on Canterbury Road for shipping to him. The cost for the shipping was paid by Angelo.
On 28 March 2005 Angelo sent another request to Sue to find and send some further material to him. This elicited an angry response from Sue that Angelo had forgotten Vicki’s birthday and ‘could you not have sent a message to your daughter???’.
In his evidence, Angelo described the boxes of lighting equipment as the tools of the trade in doing stage lighting.[72] He asked her to send them so he could do some lighting for one of the theatre companies in Brisbane.[73] He left a lot of other material behind; all his reference libraries and all material in his filing cabinets, stayed in Melbourne in the home office.[74] In relation to finding the Soft Plot software, he conceded that it was up to Sue whether she accepted help from Steve Gagen to locate it. If she did not want him to come into the house, it was her call whether she had him in the house.[75]
[72]Transcript Day 2, 18.24-19.3.
[73]Transcript Day 2, 54.26-28.
[74]Transcript Day 2, 19.9-13.
[75]Transcript Day 2, 55.24- 55.4.
It was put to Angelo that the emails indicated that Sue had control and custody of the goods at the Property. He notes that he owns the goods but claims that they are in their home, that is the home of Angelo and Sue. He considered that whether he lives there or not is irrelevant, and of course that is the position on the paper title. At this point he became argumentative regarding ownership of the property. In answer to questions from me, he conceded that he was not living there, but he felt he could return there in the future. This is the exchange:
HIS HONOUR: You weren’t living there, were you?‑‑‑No, I was not living there but it is our home.
You had no intention of returning there, did you?‑‑‑I disagree with your comment, sir.
It’s not a comment. It’s a question and the answer to that is you say no, you did have an intention to return there: is that right?‑‑‑I felt that I could return there in the future, yes.
And when you were in Melbourne in September 2005 where did you stay?‑‑‑I stayed in – with some friends down in Melbourne because they invited me down there for their Christmas – sorry, they invited me down for some event and then I took that opportunity to go and see Susan and see how things were then and then I was going to go down and see a friend down in Stradbroke.
And you made no request of Susan that you stay in the house, did you?‑‑‑I did not stay in the house at that point in time.
The question was you made no request of Susan that you can stay in the house, did you?‑‑‑No, I did not.[76]
[76]Transcript Day 2, 57.15 – 58.3.
I intervened at this point because Angelo became argumentative, would not answer direct questions directly and was frustrating the conduct of the trial. He showed, I conclude, an entirely selfish, self-interested and dissembling side of himself.
The plaintiffs submitted that the evidence in relation to the finding and despatch of the goods established that Angelo did not have custody or control of the goods he had left behind in the Property, and that the Property was in Sue’s custody and control. She was the one who had to locate and pack Angelo’s goods up and send them on to him in Brisbane. If he wanted to have anyone else enter the property to do so, they could only do so with her permission. I agree.
It is about this time, March 2005, that Ben at age 11 asked his mother Sue if he could get rid of some of Angelo’s papers. Ben was angry with Angelo for leaving the way he did and not contacting him since returning from Toowoomba. Ben did not know what the papers were. Sue said that he could get rid of all the papers except anything about the bank or mortgage papers. Sue showed him which these were. He remembers this well as it was around the same time that the green wheelie bins were introduced to the neighbourhood and he wanted to fill theirs up.[77] When Angelo visited in September of that year, as related below, Ben remembers Angelo yelling at him for throwing material out - material that he wanted relating to old truck parts.[78]
[77]Ben’s Witness Statement, [6]; Transcript Day 1, 91.5-94.1.
[78]Transcript Day 1, 95.8-24; Transcript Day 2, 24.8-25.
Angelo’s visit in September 2005
There are a few, only a few, emails between March and 20 June 2005 when Sue emailed Angelo asking if he had got her phone message and ‘Vicki tried calling you at work the other day - and was told you’re not working there. You are still at Western Star aren’t you ???’.[79]Then there are almost no emails until on 6 September 2005 Angelo emails Sue that:
To contend, if that is what the plaintiffs do, that the date of accrual is also deemed, begs the question of when that occurred. To say that the final words of positive ‘deeming’, or the earlier words of negative deeming alone, remove the requirement to establish the accrual of the right of action, which turns on dispossession of the departed co-owner or that owner discontinuing possession of the land, leaves a critical matter of fact undecided. In addition, the remaining co-owner has to show their possession is for their benefit, or the benefit of others, but not for the benefit of the departed co-owner. This involves in my view the need to establish the same elements of physical custody, excluding the other co-owner, and an intention to possess, as are required under s 14(1) of the LAA.
The conclusion reached by Croft J in Fourniotis that in the circumstances of that case there was no need to establish animus possidendi because of the deeming provision in s 14(4) turns on his conclusion that all that needed to be proved was receipt of an excess share of profits or rent by one co-owner for its benefit or the benefit of other persons (other than the complaining co-owner).[161] But that is a consequence of the nature of rents and profits. If they are received by one co-owner to the ‘exclusion’ of the other or others, so that the rent or profits are not received as agent or trustee for example, then that shows two things. First, a ‘dispossession’ or ‘discontinuance’ of the other co-owner’s receipt of the rent or profits. Second, a date of that ‘dispossession’ or ‘discontinuance’. In other words, applying that reasoning to the position of an actual possession of the land by one co-owner, it is still necessary to establish both possession of the land and dispossession of, or discontinuance by, the other co-owner. These are questions of fact and degree. I agree with what Parker J said in Radonich v Radonich,[162] s 14(4) leaves the question of whether possession by one joint owner is on behalf of another joint owner, or to the exclusion of the other joint owner, to be determined as an issue of fact in each case, according to the truth of each situation (see above at [172]).
[161]Fourniotis [2018] VSC 369, [93].
[162][1999] WASC 165.
In my view, the plaintiffs must still prove possession to the exclusion of the other co‑owner under s 14(4) and the date from which the right of action accrued to the co‑owner out of possession. That requires the same substantive elements as are required under s 14(1) of the LAA.
Aggregation
It is permissible to aggregate successive periods of adverse possession even under s 14(4) of the LAA.[163] Where there is a series of trespassers, not deriving title from each other, who have been in adverse possession for a continuous period of 15 years s 18 will operate to extinguish the true owner’s title.[164] As Croft J noted in Fourniotis there is no reason to suppose that the same position does not apply with respect to periods of ‘adverse possession’ the result of the operation of the deeming provisions of s 14(4) of the LAA.[165]
[163]Fourniotis [2018] VSC 369, [94].
[164]Adapted from Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 476.
[165]Fourniotis [2018] VSC 369, [94].
Consideration
First question
The first question is whether the circumstances of Angelo’s departure for Queensland on 10 July 2004 had the effect that from that time Sue’s possession of the Property was a separate possession from his, for her own and the children’s benefit, excluding him, such that a period of deemed adverse possession under s 14(4) of the LAA commenced? My answer is ‘no’ for the following brief reasons.
The plaintiffs submitted that as soon as Angelo departed in his station wagon for Toowoomba on the morning of 10 July 2004, Sue had sole and separate legal possession of the Property from that day – however reluctantly and however involuntarily she came to it - she had factual possession of the whole property and she intended to continue to have control and custody of it for her and the children’s benefit. She also intended in the relevant sense that Angelo would no longer have any benefit from the property, because he had left the property and his family permanently and would not be returning and nor would she be following him. There was a finality to his decision to relocate and hers to remain.
The plaintiffs also submitted that in the light of all the circumstances leading up to, and occurring on, 10 July 2004, Angelo’s evidence that Sue in fact intended to consider following him with the children and the rest of his property to Toowoomba at Christmas 2004 or any other time ought not to be accepted. The inference the Court should make is that Sue understood and intended (not perhaps happily) that she would henceforth be living on her own with her children at the Property, not following Angelo to Toowoomba. That is because:
(a) The marriage had been in difficulty for over 12 months beforehand. Sue was working night shifts for long hours. Angelo worked in Mulgrave and spent much of his time at home in the shed where his papers, goods and TV were located.
(b) Communication between the couple appears to have been poor, at least on matters affecting their common interests, such as Angelo’s employment and their remaining together as a married couple. The evidence is that they had few conversations about these matters as they came to a head in mid-2004. Angelo’s evidence was mostly about his own expectations, understandings, beliefs and decisions about what was in Sue’s interests, the family’s interests and the interests of their marriage. Sue’s own thoughts, hopes and reasons for her reluctance to relocate to Toowoomba are either attributed to her by Angelo in what he thought or understood or expected, or are limited to her actual expressions of a reluctance to go.
(c) Angelo left his job with Mercedes voluntarily. That job was still there if he wanted it in Laverton North, just not in Mulgrave, given Mercedes’ decision to close their head office in Mulgrave and move its operations to Laverton North. The job was not a counter salesperson position, which he did not like and was not suited for.
(d) And yet, the job in Toowoomba was objectively speaking much more inconvenient for him and his family. It required a complete and permanent relocation to another state, far from the family home. Either Sue and the children had to accept that they must continue living in Mont Albert in Victoria or else that they must relocate to Toowoomba in Queensland. The job was in fact a counter salesperson position and not a job in the same line of work that was not available in Melbourne. It was not for more money. The only sensible inference is that Angelo wanted a complete change of life, a new beginning, for himself and that, at least by 10 July 2004, he had decided to pursue that, whether Sue and the children joined him or not. The force of this submission is not that Angelo’s motivations in pursuing a new life for himself with or without his family was wrong or not valid in the circumstances. Rather, it is the fact that Sue’s own understanding of what was happening to her life and that of her children and the decisions she made on the basis of that understanding would have been informed by Angelo’s conduct in regard to leaving his job in Melbourne and taking up a new job in Toowoomba.
(e) Vicki reports that in conversations with Sue’s mother, Sue was vacillating leading up to 10 July 2004 but slowly moved towards deciding not to relocate to Toowoomba.
(f) Angelo reports that at no time did Sue say yes to following him to Toowoomba, even though he says she did not say no either.
(g) Sue had good reasons for her reluctance having regard to her own interests and those of her children: They had family in Melbourne, Sue had work and friends in Melbourne, and Vicki had her final year at High School to complete.
(h) Despite her reluctance and her reasons for that reluctance being expressed on the few occasions he consulted her, Angelo decided to take the job.
(i) The job had come up between his redundancy in early July and 10 July 2004, so Sue had not been given much time to consider her position and that of her children.
(j) When he left, he did so on the basis that he was moving permanently to Toowoomba, whether the others followed him or not. He was not coming back. In practical terms, therefore, Sue had been given an ultimatum: either you join me in Toowoomba or our marriage is over.
(k) When he departed, he did so by packing his car early in the morning with as many of his personal possessions as would fit in his car, leaving the rest to be called for or sent on at a later time.
(l) He had not told the children, so it was a complete surprise to them.
(m) He packed the car while the family slept. As Angelo describes the departure, the other members of the family were clearly traumatised. He describes them as being cold, there was nothing there and saying nothing to him, Sue included. This is not the reaction of a family being prepared for and intending that their father was relocating for work purposes to another state with them to follow afterwards.
(n) Faced with all of those circumstances, and still not having said that she would follow him, the reasonable inference to make is that she had decided at that time that she would not join him, which is to say that she would continue in sole occupation of the Property without him.
The defendant submits that there is no suggestion that Sue took any positive actions at this time to exclude Angelo, and the highest the plaintiffs’ evidence went about Sue’s intentions was that, in subsequent discussions with her mother, Omi, in the weeks following Angelo’s departure, she decided that the family was not following Angelo to Queensland. It cannot be said that Angelo abandoned the Property, or had made decision to abandon the Property, on the morning of 10 July 2004. While ultimately Angelo and Sue’s relationship broke down beyond repair, any subsequent ending of the relationship cannot affect in any meaningful way the state of affairs as at July 2004.
Although I consider that many, if not most, of the matters listed in the catalogue of matters put forward by the plaintiffs are true, on the facts as I have found them, I cannot be satisfied that Sue had definitely decided not to follow Angelo to Queensland, even at a later stage (after Vicki had finished her VCE) or to separate from Angelo at the time of his departure. Despite the statement in her Will, and the statement made by Anglo’s solicitors in the latter of 31 May 2019, that they had separated in July 2004, the evidence does not disclose an intention by Sue not to continue to cohabit with Angelo in Queensland until a few weeks later when, according to his evidence, she told him that neither she nor the children would join him. That is important because it does not disclose an intention by Sue to exclude him from her life and home. I think that it is with the benefit of hindsight that it can be, and indeed was, said that they separated when Angelo departed in July 2004. But at that particular time I am not satisfied that Sue had finally made the decision that neither she nor the children would ever follow him to Queensland.
Because there is no direct evidence given by Sue, and only the evidence of Angelo and the firsthand hearsay evidence of Sue’s statements and actions given by Vicki and Ben, I am left to infer her intention regarding whether she was intending to exclude Angelo from the Property by such evidence as there is and by the probabilities. When told that Sue and the children would not follow him to Toowoomba, had Angelo decided then and there to return to Melbourne and the Property, I am not satisfied that Sue would have excluded him from returning home and resuming their cohabitation, no matter how unsatisfactory that might have been.
There is insufficient evidence, I consider, to enable a conclusion that from the time he left on 10 July 2004 Sue was excluding Angelo from the Property sufficient to establish that physical custody and control of the Property that is necessary for her ‘possession’ to be for her benefit, and that of her children, and to the exclusion of Angelo. Many of the matters relied on by the plaintiffs to establish Sue’s intention are in fact matters that go to Angelo’s intention, and these are, in themselves, not relevant to whether Sue had, and intended, to take possession for herself and the children to the exclusion of Angelo. The only way they are relevant is that they show Sue’s intention as a reflection of his, and how they bear upon the probabilities. As I have said, had Angelo then returned to Melbourne and the Property I cannot be satisfied that Sue would have excluded him from returning home.
Second question
The second question is: if I conclude in the negative to the first question, whether the circumstances of Angelo’s departure together with Sue informing him within weeks of him leaving for Queensland that she and the children would not be moving to Queensland, had the effect that from that time Sue’s possession of the Property was a separate possession from his, for her own and the children’s benefit, excluding Angelo, such that a period of deemed adverse possession under s 14(4) of the LAA commenced?
It is, I think, possible that from the time of her decision not to follow Angelo that she was showing her intention to possess the Property exclusively, but as I have said, there is not enough from this fact alone to conclude that had Angelo returned to the Property rather than be separated, that Sue would not have acquiesced in his return. There is a fair inference, however, that when Sue told him she was not coming, that there was more said, or at least implied. That is, that Angelo was not returning to work in Victoria and was intent on pursuing a career in Queensland, leaving Sue to maintain the Property as a home from her own resources, with the contributions Angelo undertook to make to the mortgage by way of support for his children.
The position is different as a result of the elapse of time. The intimation that Angelo was saving to buy a residence for himself in Queensland (in the email of 1 February 2005) and the shipping of a large quantity of Angelo’s goods to him in March 2005, make it clear that Angelo was not returning and was making a life for himself in Queensland. Disregarding for the present the first change of the locks, Sue’s acceptance of this decision by Angelo means that Sue and the children were on their own in Melbourne, in charge of the Property and responsible for its maintenance and upkeep as their home.
Sue’s attitude to Angelo, as disclosed in the emails to which I have referred concerning the shipping of his goods, was that she was in control and not him. Sue’s refusal to allow Steve Gagen help find the Soft Plot software, and Angelo’s concession that Steve Gagen could not enter the house at Angelo’s request without Sue’s permission is in this matter significant. It shows Sue’s control of the Property and Angelo’s acceptance of that control. The probabilities are that there was more said between them by this time as to their relationship and future, such that Angelo realised he was not welcome back in the Property and had no say in its management or control. Add to that Sue giving Ben permission to clean up the shed and dispose of some of Angelo’s papers and Angelo’s evidence - indeed complaint – that Sue had allowed that when he was powerless to prevent it. The control is further evidenced by the fact that later, in September 2005, Angelo considered that he needed to ask Sue’s permission to attend the Property, as I consider that is the correct interpretation of his email. Then, to cap it off, he did not ask to stay and was not invited to stay at the Property when in Melbourne. By this set of circumstances (including the matters in [193]), Sue was possessing the Property for herself and her children and excluding him from their lives and the Property.
Thus, in my opinion, by about mid-March 2005 it was clear that Sue did not want Angelo back and the probabilities are that there were communications between them that made that clear.
Putting to one side the change of the locks in about August 2004, I am satisfied on the facts that the possession of Sue, and the separate possession of Vicki and Ben after Sue died, has been, and has intended to be, to the exclusion of Angelo and has subsisted since March 2005; that is, Angelo’s right of action accrued in mid-March 2005 if it did not earlier accrue when the locks to the house were changed in about August 2004.
Third questions
The third set of questions are whether Sue changed the locks to the Property within weeks of Angelo leaving for Queensland and, if so, does that fact, in the circumstances, have the effect that from that time –
(a) Sue’s possession of the Property was a separate possession from his, for her own and the children’s benefit excluding him, such that a period of deemed adverse possession under s 14(4) of the LAA commenced at that time? or
(b) Sue had ousted Angelo from the Property, such that a period of actual adverse possession commenced at that time?
I have concluded that Sue did change the locks to the house on the Property and that was for the purpose of preventing Angelo to come without her permission. This is a clear act that showed her intent, and for that purpose it does not matter that the side gate was left without a new lock. The point is that Sue intended by the act of changing the locks to exclude Angelo from possession of the Property which was a ‘home’. It is evident that, for whatever reason, Angelo accepted that was the case, because when he visited in September 2005 to see his children and collect more of his possessions from the home office in the garage, he made no attempt to stay at the house and effectively sought permission to visit. That means that Sue’s possession was for her and her children’s benefit to the exclusion of Angelo and that her intention followed her acts. It is also relevant to observe that:
(a) Putting aside the mortgage payments made by Angelo, Sue paid for all the utilities at the Property alone and on the shared understanding that she and Angelo had separate homes for which they were separately responsible, as she recounted in her email to Angelo on 26 November 2005 (see above at [124]).
(b) Angelo had no control over any of the activities in the family home. He did not and was not free to reside there when he came to Melbourne, he did not and was not free to arrange social events there, control the children’s use of the Property or generally to come and go as he pleased. These things were all matters over which Sue had exclusive control.
(c) Angelo was not in a position to keep the Property in repair. He was not consulted about and had no say in what work was done about the house or who would be engaged to do that work. To the extent he had an interest in this, for example for the purposes ensuring his personal property was kept safe, he had to rely on Sue and indeed expected her to do that.
(d) Angelo maintained his own home separately from the family, first in Toowoomba and later in Brisbane.
Angelo’s right of action to recover possession of the Property for himself accrued at the time of that lock change, which I date at about mid-August 2004. I do not consider it necessary to find an ‘ouster’ of Angelo, as that expression is, as I have said, a concept from an earlier era of the law.
Fourth question
The fourth question is whether Angelo’s payment of the mortgage instalments beyond a date 15 years before commencement of Angelo’s counterclaim for possession of the Property (23 July 2020) constituted Angelo retaining possession of the Property?
The plaintiffs submitted that Angelo’s payments of the principal and interest on the Assetbuilder loan is irrelevant to the question of Sue’s intentions with respect to control of the Property and its improvements. That is the correct approach, as Browne-Wilkinson LJ observed when disclosing the heresy in Leigh v Jack (see above at [174]). The matter that could be relevant is Sue’s acceptance of these payments and what that indicated as far as her intention is concerned. It is clear from Vicki’s evidence that the mortgage payments were considered by Sue to be in lieu of child support, particularly for Ben. Angelo accepted that this was the character of the payments.
The defendant pointed to the decision of Hodgson J in Webeck v Foley[166] where the co-owner in possession of the property in question had required other co-owners not in possession to make contributions towards rates, insurance and a sewerage connection. However, that fact and the fact that the co-owner in possession acknowledged other co-owners (there were several) their right to stay in the property, and made no attempt to prevent them doing so, led to the conclusion that –
…Mrs Foley’s possession was not, and was not considered by her to be, otherwise than for the benefit of all the owners and with their consent.[167]
[166](1992) 5 BPR 11,694.
[167](1992) 5 BPR 11,694, 11,700-11,701.
The defendant submitted that the decision of Hodgson J in Webeck v Foley supports the proposition that a demand by one co-owner for contribution towards expenses related to the property (such as rates or mortgage repayments) creates a strong inference that there has not been any intention to possess the property to the exclusion of the other co-owner.
In the circumstances of this case, I consider that Angelo’s continued payments towards the mortgage until mid-2008 does not lead to any inference of the kind suggested by the defendant. Those payments need to be assessed in the context of the express acknowledgment by Angelo that the payments were in lieu of support for his children, that the separation between Angelo and Sue was complete by mid-March 2005 when Angelo requested his goods be packed and shipped to Brisbane, but most particularly by Sue changing the locks to the house on the Property in order to keep Angelo out. The Court must look at all the relevant circumstances collectively to determine whether the plaintiffs have establish adverse possession, and these facts, and others to which I have referred, show an intention that Sue’s possession was for her benefit and that of her children to the exclusion of Angelo.
Fifth question
The fifth question is whether by leaving personal possessions in the Property when he left on 10 July 2004, Angelo retained possession together with Sue from 10 July 2004 until sometime after 23 July 2005?
The defendant submitted that Angelo was not excluded from the benefit of the continued possession of the Property, but rather continued to receive a benefit through the storage of goods in his home office, and all of the personal items he left behind.
The plaintiffs conceded that leaving goods behind can be a relevant factor in the assessment of whether the remaining co-owner intended to exclude the departed co‑owner, but in this case it does not point to Sue accepting Angelo had a continuing right to possession because:
(a) It was Sue alone who had the care, custody and control of the goods by reason of her having the custody and control of the Property and its improvements.
(b) Angelo’s own evidence was that she alone had the responsibility to care for them as the adult at the property, implying that she was the only one who could exercise custody and control.
(c) The evidence reveals that anything that happened with respect to those goods in the Property could only occur with Sue’s permission. If Sue gave permission to use or interfere with his goods, he was powerless to prevent it. For example, Ben disposed of some of Angelo’s manuals with Sue’s permission, and without referring to Angelo for any sort of permission to do so, and much to Angelo’s subsequent chagrin.
(d) It was not Angelo’s or Sue’s intention that Angelo could access the house or arrange for others to access to the house at will, to locate, pack up and take his goods, without first arranging this with Sue.
(e) The evidence confirms that if Angelo wanted to come to pick up his goods himself, he had to do it by arrangement with Sue and with her permission.
These matters confirm that there is no reason to doubt that Sue intended to, and did, possess the Property for her benefit and the benefit of the children to the exclusion of Angelo notwithstanding that he left some indeterminate quantity of goods behind until September 2005.
The relevance of the comments by the Privy Council in Wills v Wills on the retention of personal possessions at the property by the departed co-owner is shown by the following passage:
Their Lordships do not therefore see the outcome of this appeal as likely to cause trouble for the large number of Jamaican citizens who work overseas and contribute to their families’ welfare and the Island’s economy. Most of them will come home on a fairly regular basis, will retain the bulk of their possessions at home, and will not (on coming home) be treated as guests in their own houses. But if (as must sometimes happen) a Jamaican working overseas forms new attachments and starts a new life, and entirely abandons the former matrimonial home, he or she will (within the ample period of 12 years) have to consider the legal consequences of that choice.[168]
[168][2004] 1 P&CR 37, [32].
In all the circumstances of this case it is clear to me that by March 2005, disregarding for the moment the lock change in August 2004, Angelo had started a new life in Queensland, and had abandoned his former matrimonial home. Sue’s conduct in effecting the first lock change, and keeping control of both the Property and the possessions that Angelo had left behind, shows her intention to possess the Property for her and her children’s benefit and not for Angelo.
Sixth questions
The sixth questions are whether –
(a) By retaining the keys to the Property when he left on 10 July 2004, Angelo retained possession together with Sue from 10 July 2004 until sometime after 23 July 2005, thereby precluding any period of adverse possession commencing during that period?
(b) Angelo’s visit to the property to collect personal possessions on 19 September 2005 was with Sue’s consent and permission such that it did not interrupt any accruing period of adverse possession (deemed or actual)?
For the same reason that Angelo’s payments of the principal and interest on the Assetbuilder loan is irrelevant to the question of Sue’s intentions with respect to control of the Property and its improvements, so too is Angelo’s retention of the keys. As Lord Browne-Wilkinson then said in Pye, the suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong (see above at [174]). The retention of the keys is therefore only relevant to whether Sue has effectually excluded Angelo from possession, and that is answered by the first lock change. I do not accept Angelo’s evidence that he let himself into the house with his own key. He may have accessed the garage to retrieve some of his possessions, but this one visit does not interrupt the possession of Sue as it was clearly undertaken after seeking her permission.
Seventh question
The seventh question is whether any period of deemed adverse possession under s 14(4) of the LAA ending when Sue died on 11 February 2019 can be aggregated with any period of actual adverse possession by Vicki and Ben after 11 February 2019?
The defendant accepts that successive periods of adverse possession without interruption may be aggregated for the purposes of s 14(1) of the LAA,[169] but submits that different considerations apply in the present dispute, at least insofar as the proceeding has been brought by the plaintiffs in their representative capacity.
[169]Mulcahy v Curramore [1974] 2 NSWLR 464, 476.
The defendant submitted that the claim by the plaintiffs on behalf of Sue’s estate is misconceived because at the time of death of one joint tenancy, the joint ownership is severed, and the surviving co-owner acquires the interest in its entirety of the deceased. There is no interest in the Property which can be passed, or held, by the executors on behalf of the estate. Any right to possession which may be held by an executor cannot apply under s 14(4), as there are no ‘co-ownership rights’ which survive and so which can form the basis of a successive period which may be aggregated.
This is accepted by the plaintiffs, who say that the alternate claim made in the plaintiffs own right is capable of being aggregated with the possession of Sue. As I have said, the plaintiffs did not pursue the claim as representatives of Sue’s estate at trial and abandoned the claim in their final submissions. Paragraph 7(c) of the plaintiffs’ statement of claim makes it clear that the plaintiffs claim in the alternative that they were in possession of the property adversely to the defendant with the intention to possess the property adversely to him. This is a claim they have pleaded, it is the one that they pursued at trial and it is the one they now press.
The defendant is perhaps misled by the title to the proceeding, in which the plaintiffs sue in their capacity as executors of Sue’s estate. The plaintiffs have submitted, however, this is not determinative of the claim made in the body of the statement of claim:
…the statement in the heading that the plaintiffs sued in their capacities as executors is neither here nor there when it comes to whether they have pleaded valid claims in the proceeding in their personal capacity. All the rules require is that, where they do in fact make a particular claim in their representative capacity, there be specifically clear particulars given in the statement of claim endorsed onto the writ that that particular claim is one that is brought in their representative capacity.[170]
[170]Plaintiffs’ Reply Submissions filed on 16 June 2021, [20]; referring to McGee v Beattie (1890) 16 VLR 11 (Hood J) where the situation was in the reverse.
I agree. It was quite clear to me upon reading the statement of claim that paragraph 7(c) of the statement of claim, in making an alternative claim, can only have been made in the plaintiffs’ own right.
I am satisfied that the plaintiffs continued in possession after the death of Sue without interruption and did so intending to maintain their ‘adverse possession’, that is, to have custody and control of the Property for their own benefit and not for the benefit of Angelo. The arrangements made for Angelo to inspect the Property in 2019 bear this out (see above at [141]).
Consent
The defendant submitted that:
(a) When Angelo departed on 10 July 2004, his understanding was that the family would soon be following. He did not require the family to leave the Property until such time as they moved to Queensland, but rather (and obviously) was content for them to remain at the Property.
(b) Upon Sue informing Angelo that the family would not be following him to Queensland, Angelo continued to consent to his family’s occupation of the Property.
(c) Until May 2008, Angelo was taking positive actions through the payment of mortgage contributions to allow that occupation to continue.
(d) In those circumstances, it can only be inferred that the requisite consent existed, and accordingly time cannot commence to run until such time as the consent was withdrawn (which, it is submitted, most likely occurred in May 2008 when the mortgage repayments from Angelo ceased).
The plaintiffs submitted that there was no evidence to support the claim in the Defence that Sue, Vicki and Ben remained in the property with his consent and permission. Sue did not need his permission as joint tenant. Nothing suggests she sought consent or permission. Nothing suggests Angelo purported to give his consent or permission. The highest the evidence rose was that he acquiesced in them remaining in the Property because the children needed to have a home. His payment of the mortgage was his contribution to the support of the children and not the maintenance of his right to possession of the Property.
In my view, to focus on what Angelo thought when he left in July 2004 is to approach the question from the wrong perspective. It was what Sue did that is critical. She always had the right to possession without the consent of Angelo. That included the right to have her children with her. In the eyes of the law they were her licensees. In any event, by the time that Angelo sent his email on 1 February 2005 announcing that he was trying to save same money to form a deposit on a house, and when he asked for his goods to be shipped to him in mid-March 2005, it is clear that he and Sue had separated permanently (see the email at [90] above). The payments towards the mortgage reduced unilaterally at this time and were clearly no more than a contribution to the support of the children.
Conclusion
For these reasons, I find that the plaintiffs have established their claim to adverse possession of the Property. It is therefore unnecessary to deal with the claim for indemnity or contribution and the consequent charge claimed over the Property. There will be a declarations and orders to give effect to this finding, to the following effect:
(a) A declaration that the defendant’s title to the Property is extinguished pursuant to s 18 of the LAA;
(b) A declaration that the plaintiffs are entitled to be registered as proprietors of the Property as tenants in common in equal shares by adverse possession.
(c) Orders pursuant to s 103(1) of the Transfer of Land Act 1958 (Vic) that the Registrar of Titles is directed to:
(i) Cancel the registration of the folio of the register for the land described in Certificate of Title Volume 07736 Folio 188 in the name of Angelo Edward Gianchino.
(ii) Create a new folio of the register for the land described in Certificate of Title Volume 07736 Folio 188 as a replacement for the cancelled folio with the same recordings as the cancelled folio save that the name of the registered proprietors shall be recorded as Victoria Elizabeth Gianchino and Benjamin Paul Gianchino both of 19 Cairo Road, Mont Albert North, Victoria, as tenants in common in equal shares and save for any caveat registered on their behalf (‘new folio’).
(iii) produce a Certificate of Title for the new folio and deliver it to the plaintiffs as the persons entitled to it.
(d) An order that the defendant’s counterclaim is dismissed.
(e) An order that the defendant pay the plaintiffs’ costs of the proceeding.
(f) The Reservation of liberty to the parties to apply as to the further working out of the order.
SCHEDULE OF PARTIES
S ECI 2020 02527 BETWEEN: VICTORIA ELIZABETH GIANCHINO
(in her capacity as the Executors of the Estate of
SUSAN MARTHA GIANCHINO)First Plaintiff BENJAMIN PAUL GIANCHINO
(in his capacity as the Executors of the Estate of
SUSAN MARTHA GIANCHINO)Second Plaintiff ANGELO GIANCHINO Defendant AND BETWEEN: ANGELO EDWARD GIANCHINO Plaintiff by Counterclaim -and- VICTORIA ELIZABETH GIANCHINO
(in her capacity as Executor of the Estate of
SUSAN MARTHA GIANCHINO)First Defendant by Counterclaim BENJAMIN PAUL GIANCHINO
(in his capacity as Executor of the Estate of
SUSAN MARTHA GIANCHINO)Second Defendant by Counterclaim THE REGISTRAR OF TITLES Third Defendant by Counterclaim
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