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Maio v Sacco

Maio v Sacco

Case [2009] NSWSC 413 21 May 2009

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CITATION: Maio v Sacco [2009] NSWSC 413

HEARING DATE(S): 8 and 9 April 2009

JUDGMENT DATE :
21 May 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refer to paras 60-61 of judgment.

CATCHWORDS: REAL PROPERTY - claim for contribution for improvements carried out on property – equitable accounting – defendant conceded that plaintiff entitled to claim contribution for reasonable value of work he personally performed – plaintiff entitled to contribution from defendant for his expenditure and for expenditure saved by plaintiff’s personally performing work to the extent the expenditure made or saved added value to property – question whether plaintiff entitled to contribution for work done personally not decided in light of defendant’s concession - AFFIDAVITS - obligation of deponents to tell the whole truth

LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Limitation Act 1969 (NSW)
Partnership Act 1892 (NSW)

CATEGORY: Principal judgment

CASES CITED: Batard v Hawes (1853) 2 EL & BL 287; 118 ER 775
Dimes v Arden (1836) 6 N&M 494
Leigh v Dickeson [1884] 15 QBD 60
Brickwood v Young (1905) 2 CLR 387
Squire v Rogers (1979) 39 FLR 106
Forgeard v Shanahan (1994) 35 NSWLR 206
Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,947
McMahon v Public Curator of Queensland [1952] Qld SR WN 197
Cardinaels-Hooper v Tierney (1995) 7 BPR 14,435
Hovenden & Sons v Millhoff (1900) 83 LT 41
Keogh v Dalgety & Co Ltd [1916] HCA 69; (1916) 22 CLR 402
Industries & General Mortgage Co Ltd v Lewis [1949] 2 All ER 573
T Mahesan S/O Thambiah v Malaysia Government Officers’ Co-operative Housing Society Ltd [1979] AC 374
Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193
Pizzale v Gumina Enterprises Pty Ltd (1994) 13 WAR 88
United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49; (1985) 157 CLR 1

TEXTS CITED: Bullen & Leake, Precedents of Pleadings, 3rd ed (1868)
Peter Butt, Land Law 5th ed (2006)

PARTIES: John Maio
v
Antonio Sacco

FILE NUMBER(S): SC 4995/04

COUNSEL: Plaintiff: G Foster
Defendant: P Barham

SOLICITORS: Plaintiff: Phillip A Wilkins & Associates
Defendant: Wood Marshall Williams Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE

Thursday, 21 May 2009

4995/04 John Maio v Antonio Sacco

JUDGMENT

1 HIS HONOUR: The plaintiff and the defendant are co-owners of a property at Tristram Road, Beacon Hill. They bought the property in 1992. They subdivided the property in 1996 and sold the front portion. They retained the rear portion which is vacant land. The plaintiff wanted to construct a house on the rear portion. The defendant disagreed. Building works had to be carried out on the property to comply with the council’s conditions for approval of the subdivision. These works were carried out by the plaintiff or persons engaged by him. The works were completed by early 1996.

2 In these proceedings the plaintiff claims damages or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maio v Sacco

Details

AGLC: Maio v Sacco [2009] NSWSC 413
Case: [2009] NSWSC 413
Decision Date: 21 May 2009

CaseChat Overview and Summary

The case of Maio v Sacco involved a dispute between the parties over a claim for contribution for improvements carried out on a property. The dispute was heard in the Supreme Court of New South Wales. The plaintiff, Maio, sought contribution from the defendant, Sacco, for improvements made to the property, which included both work done personally by Maio and work done by others. Sacco conceded that Maio was entitled to claim contribution for the reasonable value of work he personally performed but disputed the claim for contribution for work done by others.

The central legal issues before the court were whether Maio was entitled to contribution for the expenditure made for improvements to the property and, if so, to what extent. Specifically, the court needed to determine whether Maio was entitled to contribution for the work done personally and for the expenditure saved by Maio's personally performing work to the extent that the expenditure made or saved added value to the property. The court also had to consider the obligation of deponents to tell the whole truth in their affidavits.

In resolving the issues, the court found that Maio was entitled to contribution for his expenditure and for expenditure saved by his personally performing work to the extent that the expenditure made or saved added value to the property. The court held that the question of whether Maio was entitled to contribution for work done personally was not decided in light of Sacco's concession. The court emphasised the importance of the obligation of deponents to tell the whole truth in their affidavits, noting that any failure to do so could have serious consequences for the parties involved. The court did not determine the exact amount of contribution due, leaving that for further proceedings.

Orders