CITATION:   MARCHESE -v- MARCHESE [2021] WASC 385
CORAM:   HILL J
HEARD:   4-8, 11-14, 21 NOVEMBER 2019
DELIVERED          :   8 NOVEMBER 2021
PUBLISHED           :   8 NOVEMBER 2021
FILE NO/S:   CIV 2521 of 2015
BETWEEN:   CARMELO MARCHESE
Plaintiff
AND
THEODORE TINDARO MARCHESE
First Defendant
THE REGISTRAR OF TITLES
Second Defendant

FILE NO/S: CIV 1821 of 2016
BETWEEN: NORMAN NUNZIO MARCHESE
Plaintiff
AND
THEODORE TINDARO MARCHESE
First Defendant
CARMELO MARCHESE
Second Defendant
REGISTRAR OF TITLES
Third Defendant
COMMISSIONER OF TITLES
Fourth Defendant

Catchwords:
Equity and trusts - Express trust - Common intention constructive trust - Joint endeavour constructive trust - Non-financial contributions to Darch property - Legal title to Darch property held by first defendant - Whether express intention to hold Darch property for benefit of plaintiff - Whether common intention implied from parties' actions - Whether first defendant holds Darch property on trust for one or both other brothers
Equity and trusts - Resulting or implied trust - Common intention constructive trust - Joint endeavour constructive trust - Whether joint endeavour between family members concerning purchase, renovation and sale of various properties - Whether financial contribution made to purchase of Darch property - Non-financial contributions to Darch property - Whether first defendant holds Darch property on trust
Estoppel - Equitable estoppel - Whether representation that defendant would hold property on trust for plaintiff in CIV 2521 of 2015 - Whether reliance established - Whether detriment established - Relief
Estoppel - Equitable estoppel - Representation that brothers would share equally in properties on death of parents - Whether reliance established - Whether detriment established - Relief
Real property - Indefeasibility of title - Exceptions - Claim against registered proprietor
Equity - Defence - Laches
Legislation:
Evidence Act 1906 (WA), s 79C
Property Law Act 1969 (WA), s 34
Transfer of Land Act 1893 (WA), s 68, s 134
Result:
CIV 2521 of 2015
Declaration that first defendant holds property on trust for plaintiff and first defendant in equal shares subject to adjustment
CIV 1821 of 2016
Plaintiff's claim dismissed
Category: B
Representation:
CIV 2521 of 2015
Counsel:

Plaintiff : D A Lenhoff

First Defendant : G A Lacerenza

Second Defendant : No appearance
Solicitors:

Plaintiff : Lenhoff & Hotz

First Defendant : GA Lacerenza & Associates

Second Defendant : No appearance
CIV 1821 of 2016
Counsel:

Plaintiff : A J Aristei

First Defendant : G A Lacerenza

Second Defendant : D A Lenhoff

Third Defendant : No appearance

Fourth Defendant : No appearance
Solicitors:

Plaintiff : Irwin Legal

First Defendant : GA Lacerenza & Associates

Second Defendant : Lenhoff & Hotz

Third Defendant : No appearance

Fourth Defendant : No appearance
Cases referred to in decision:
Austin v Keele (1987) 10 NSWLR 283
AVWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) (No 2) [2019] WASC 306
Bagot's Executor and Trustee Co Ltd v Fudge [1949] SASR 297
Bahr v Nicolay (No 2) [1988] HCA 16; (1988)…

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 Marchese v Marchese

Details

AGLC: Marchese v Marchese [2021] WASC 385
Case: [2021] WASC 385
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia recently handed down its decision in Marchese v Marchese [2021] WASC 385. The case involved a dispute between three brothers over their respective interests in a property located at 12 Lansdale Road, Darch. The central issue was whether the property was held on trust for any of the brothers. The court found that one brother, Ted, held the property on trust for himself and another brother, Carmelo, in equal shares. The court dismissed the claims of the third brother, Norman, who alleged that Ted held the property on trust for him. The court also made orders for costs, determining that the costs of the trial should be apportioned equally between the proceedings. The decision provides useful guidance on the application of equitable principles in family property disputes and the apportionment of costs in complex litigation.

Orders