MOHEDO (JUNIOR) -v- MOHEDO (SENIOR) & ANOR [2002] WASC 240

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 240
Case No:	CIV:1223/2001	Heard:	26-27 JUNE 2002
Coram:	WHEELER J	Delivered:	17/10/02
No of pages:	16	Judgment Part:	1 of 1
Result:	Refund to plaintiff of $37,200 with interest
Category:	B
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Parties:	RAFAEL MOHEDO (JUNIOR) RAFAEL MOHEDO (SENIOR) REGISTRAR OF TITLES
Catchwords:	Equity Unconscionable retention of benefit Payment made by son in reliance upon assumption that property to be left by father in Will Turns on own facts
Legislation:	Nil
Case References:	Morris v Morris [1982] 1 NSWLR 61 Muschinski v Dodds (1985) 160 CLR 583 Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466 Bridgewater v Leahy (1998) 194 CLR 451 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 Louth v Diprose (1992) 175 CLR 621 Radonich v Radonich [1999] WASC 165 Webb v Australian Agricultural Machinery Pty Ltd (1991) 6 WAR 305 Wood v Brown [1984] 2 Qd R 593

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MOHEDO (JUNIOR) -v- MOHEDO (SENIOR) & ANOR [2002] WASC 240 CORAM : WHEELER J HEARD : 26-27 JUNE 2002 DELIVERED : 17 OCTOBER 2002 FILE NO/S : CIV 1223 of 2001 BETWEEN : RAFAEL MOHEDO (JUNIOR)

Plaintiff

AND

RAFAEL MOHEDO (SENIOR)

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Equity - Unconscionable retention of benefit - Payment made by son in reliance upon assumption that property to be left by father in Will - Turns on own facts

Legislation:

Nil

Result:

Refund to plaintiff of $37,200 with interest

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr I L K Marshall

First Defendant : Mr L A Tsaknis

Second Defendant : No appearance

Solicitors:

Plaintiff : Pearman Grantham

First Defendant : Wojtowicz Kelly

Second Defendant : No appearance

Case(s) referred to in judgment(s):

Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds (1985) 160 CLR 583
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466

Case(s) also cited:

Bridgewater v Leahy (1998) 194 CLR 451
Commercial Bank of Australia v Amadio (1983) 151 CLR 447
Louth v Diprose (1992) 175 CLR 621
Radonich v Radonich [1999] WASC 165
Webb v Australian Agricultural Machinery Pty Ltd (1991) 6 WAR 305
Wood v Brown [1984] 2 Qd R 593

(Page 3)

1 WHEELER J: This is an unfortunate family dispute. It arises from some payments made by Rafael Mohedo (Junior) the plaintiff (for clarity, "Raf", as a number of witnesses called him throughout the trial) to his father, Rafael Mohedo (Senior) (for clarity, "Mohedo Senior"), and some conversations which took place at around the time of some of those payments, and preceding those payments, concerning Mohedo Senior's house.

2 It is a case in which it has been more than usually difficult to arrive at a view of the facts. There are some gaps, apparently inexplicable, in the documentary evidence. For example, an important payment of a little under $30,000 is not…

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 Mohedo (Junior) v Mohedo (Senior)

Details

AGLC: Mohedo (Junior) v Mohedo (Senior) [2002] WASC 240
Case: [2002] WASC 240
Decision Date

CaseChat Overview and Summary

This is a case of a family dispute between Rafael Mohedo (Junior) and his father, Rafael Mohedo (Senior), concerning payments made by the son to the father and conversations about the father's house. The court had to decide the legal issues of whether the son made the payments in reliance on an assumption that the house would be left to him in the father's Will, and if so, what relief should be granted. The court found that the son did make the mortgage payment in reliance on the assumption that the house would be left to him in the father's Will, to the knowledge of the father. However, the court did not find that the other payments made by the son were made in reliance on this assumption. The court held that the appropriate remedy would be a refund of the sum which the son contributed relying upon the expectation that the house would become his in the father's Will, together with interest from the date of institution of these proceedings, with an equitable charge over the house to secure that sum. The court also held that each party bear his own costs.

Orders