Palmiotti v Palmiotti - [1999] WASC 272

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PALMIOTTI -v- PALMIOTTI [1999] WASC 272

CORAM: PARKER J

HEARD: 13-16 JULY 1999

DELIVERED : 21 DECEMBER 1999

FILE NO/S: CIV 2428 of 1998

BETWEEN: CORRADO PALMIOTTI
Plaintiff
AND
PASQUALINA PALMIOTTI
Defendant

Catchwords:

Equity - Constructive or resulting trust - Transfer of title to land to mother - Promise that it would revert on mother's death - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr M S MacDonald
Defendant: Mr R E Keen

Solicitors:

Plaintiff: James MacDonald
Defendant: Ron Kennealy

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

Gissing v Gissing [1971] AC 886
Muschinski v Dodds (1986) 160 CLR 583
Napier v Public Trustee (WA) (1980) 32 ALR 153
Strang v Owens (1925) 42 WN (NSW) 18
The Hancock Memorial Foundation Ltd & Anor v Porteous & Anor [1999] WASC 55
Wiley v Synan (1937) 57 CLR 200

Case(s) also cited:

Bahr v Nicolay (No 2) (1988) 164 CLR 604
Barnes v Addy (1874) LR (Ch App) 244
Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] Ch 250
Bogdanovich v Koteff (1988) 12 NSWLR 472
Breskvar v Wall (1971) 126 CLR 376
Brooke v Haymes (1868) LR 6 Eq 25
Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 Ch 250
Dabbs v Seaman [1925] 36 CLR 538
Ex parte Morgan; In re Simpson (1876) 2 Ch D 72
Giumelli v Giumelli [1999] HC 10
Greer v Kettle [1938] AC 156
J A Westaway & Son Pty Ltd v Registrar General, SCt of NSW (Young J); 2499/94; 15 August 1996
King v Smail [1958] VR 273
Koorootang Nominees Pty Ltd v ANZ Banking Group Ltd [1998] 3 VR 16
Leros Pty Ltd v Terara Pty Ltd [1991-1992] 174 CLR 407
Lord v Spinelly (1991) 4 WAR 158
McCathie v McCathie [1971] NZLR 58
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337
R v Phillips (1936) 26 Cr App R 17
Rasmusssen v Rasmussen (1995) 1 VR 613
Rochefaucauld v Boustead [1897] 1 Ch 196
Russell v Scott (1936) 55 CLR 440
United States Surgical Corporation v Hospital Products International Pty Ltd [1983] 2 NSWLR 157
Valoutin Pty Ltd v Furst & Ors (1998) 154 ALR 119
Walton v R (1989) 166 CLR 283

PARKER J:

Introduction

In essence this action involves a dispute between a brother and sister over the ownership of a house. It involves many members of the Palmiotti family, principally the fourth child, Corrado (the plaintiff) and the sixth and youngest child, Pasqualina (the defendant).
The plaintiff's case is for a declaration that the house, known as 58 Solomon Street, Fremantle being the land comprised in Certificate of Title Volume 726 Folio 194, (the "Residence") is held by the defendant on trust for the plaintiff. The plaintiff seeks a transfer of the legal title from the defendant to him and possession of the Residence. The plaintiff also claims an account of profits from the defendant's use and enjoyment of the Residence from 20 July 1998 until the defendant delivers up possession of the Residence to the plaintiff.
As will appear the Residence was originally purchased by Corrado in 1958. The title to it was transferred by Corrado to their mother in 1965 and then was transferred by their mother, who has since died, to Pasqualina in 1995.

Background

The Palmiotti family were originally from Molfetta, Italy. The parents were Pasquale Palmiotti and Margherita Palmiotti. They had six children, all of whom were born in Molfetta:-
1.Innocenza Paparella (nee Palmiotti) born 1930,
2.Maria Giuseppina (known as Pina) Camporeale (nee Palmiotti), born 1933,
3.Antonio Giuseppe (known as Tony) Palmiotti, born 1935,
4.Corrado Palmiotti, born 1938,
5.Michele (known as Michael) Palmiotti, born 1940, died 1992; and
6.Pasqualina Palmiotti, born 1952.
For ease of reference the various family members will be referred to according to the names by which they are usually known in Australia.
In Italy the mother, Mrs Palmiotti, controlled the family finances. Wages earned by members of the family were passed to her, and she then distributed the money as she thought appropriate after paying the necessary household bills.
The evidence reveals that during their married life in Italy Mr Palmiotti was a seaman. He would work on trading boats at sea for 10 or 11 months, followed by a few months respite. During these few months he would often work as a fisherman out of Molfetta. Whilst working as a seaman, Mr Palmiotti contributed to a marine pension scheme.
In 1951 Innocenza migrated to Perth and married Michele Paparella.
In 1952 Mr Palmiotti died. This left Mrs Palmiotti with a widow's pension from the Italian Government as well as the marine pension. The limited evidence on this point indicates that the marine pension was relatively small, and equated to approximately £13 ($26) per month. There was also evidence that Mr Palmiotti owned the house in which the family then lived in Molfetta, and that Mrs Palmiotti owned a small farming property that she had inherited.
After the death of Mr Palmiotti, Tony, as the eldest son, was seen as the head of the household and was expected to provide for the family. It was Tony's evidence that he gave all his earnings as a fisherman to his mother, who effectively controlled its use. As has been the case before the father died, it is the evidence that after his death Mrs Palmiotti continued to receive the wages, or as they grew older a substantial portion of the wages, earned by the members of the family household, which she would then distribute and use to pay bills as she thought appropriate.
Innocenza wrote to Tony from Australia and informed him that he could support the family more successfully if he migrated to Australia, where fishermen could find more work and receive higher wages. Based on this advice, Tony migrated to Perth in July 1952. Tony initially lived with Innocenza and her husband. Mirroring the financial arrangements in Italy, Tony gave all his earnings to Innocenza, who took a small amount for his board and for the cost of his trip from Italy (which she and her husband had financed) and sent the rest of the money to Mrs Palmiotti in Italy. Tony's evidence was that he was earning very good wages and he was able to send quite a lot of money back to his mother.
Corrado migrated to Perth in 1956. There was conflicting evidence as to who sponsored and financed his migration to Perth. It was Tony's understanding that he paid for Corrado's fare, but Corrado understood it was Innocenza. However, it is not material to the determination of this action that the point be decided, so I will take this issue no further.
When Corrado received his first pay in Australia, early in 1957, Tony stopped sending money back home to his mother. Tony had become engaged to be married. From that time on, Tony built up his own financial resources so that he was able to provide for his wife and later for his children. Corrado took over the responsibility of providing for their mother and the other children in Italy. Money was regularly sent back to Italy from Corrado's wages for that purpose.
Corrado, too, originally lived with Innocenza, under a similar arrangement to that which had applied to Tony. Corrado was working as a crayfish processor and later as a crayfisherman and was earning very good money. He was able to save the money for a deposit on a house, and purchased the Residence for £3500. He paid a deposit of £500, the remaining £3000 being provided by way of a bank loan. On 7 February 1958 the Residence was registered in the name of Corrado Palmiotti, subject to a mortgage to his bank.
Corrado encouraged his mother to bring the remaining children to Western Australia and in early 1959 she came to live in Perth. With her came Michele, then 19, and the defendant, Pasqualina then 7. Pina migrated to Perth a few months later with her husband Giuseppe and their two young children. These members of the family all lived with Corrado at the Residence. Corrado spent in the order of £900 on improvements to the house, including a new kitchen, as requested by his mother.
While the family have lived in Australia for over 30 years, English was not the first language of any of them. Mrs Palmiotti never developed a reasonable capacity in either spoken or written English. There was evidence that she really had no knowledge of English.

Transfer of the Residence by Corrado to his Mother

The transfer of the Residence from Corrado to Mrs Palmiotti was effected in two stages. The first stage was an unregistered agreement dated 5 September 1962 between Corrado as vendor and Mrs Palmiotti as purchaser for the sale and purchase of an undivided half interest in the Residence for an expressed consideration of £1,662.10.0. Of this consideration the agreement acknowledged that £1,000 had already been paid by Mrs Palmiotti and the balance was to be paid by 31 March 1964.
The second stage was a Transfer dated the 6 November 1964 pursuant to which the remaining undivided half interest in the Residence was transferred from Corrado to his mother by way of gift. On 8 January 1965 the transfer of the Residence was registered and Mrs Palmiotti became the sole registered proprietor of an estate in fee simple in the Residence. This process and the documentation does not reveal or imply that after 8 January 1965 Corrado had any remaining interest in the Residence, whether legal or equitable. The apparent effect of what occurred is that Corrado divested himself of all his interest in the Residence in favour of his mother.
In November 1963 Corrado had granted a further mortgage over the Residence because of a further borrowing by him from the bank of £1,000. At that time the original loan of £3,000 had not been fully repaid. The £1,000 was to repair storm damage to the Residence. The roof required re-tiling and the front verandah repairing. Corrado repaid this loan and completed the repayment of the original loan shortly before the Residence was transferred to Mrs Palmiotti in January 1965. It would appear from this that the bank had no knowledge of the 1962 agreement for sale; there was no caveat lodged to protect Mrs Palmiotti's interest in 1962. After the Residence was transferred to her in 1965, Mrs Palmiotti granted a mortgage over the Residence in favour of the bank to ensure that should money be needed by the family or for the fishing partnership she could borrow funds by way of loan from the bank. This was later discharged.

July 1961 Meeting

Corrado and Pina (who gave evidence for the plaintiff) testified that as Corrado matured and started to have girlfriends, their mother expressed concern to them about her financial security. She feared, they said, that Corrado would get married and she would be left largely without an income, as had been the case with Tony.
It was Corrado's evidence that in 1961 he told his mother he would give her the Residence on the condition that everyone in the family knew that when she died the house would come back to him. The details of that occasion will be considered further later in these reasons. This conversation lead, on his evidence, to a meeting which he says took place in July 1961.
The evidence for the plaintiff was that there was a family meeting, between Mrs Palmiotti, Innocenza, Tony, Pina, Corrado, and Michael (Pasqualina was still a young girl at this time). Both Corrado and Pina gave evidence that they clearly recalled this event. They remember their mother announcing to the family in simple terms that she had some very good news; Corrado would give the house to her to provide her with the security she desired, until she died, and then ownership of the house would return to Corrado. Both Corrado and Pina testified in remarkably similar terms, as to the seating of the family at this meeting, the comments made by their mother, and her actions in getting up from her seat and embracing Corrado.
It was Tony's evidence that he could not recall ever attending a meeting of all the family at the Residence for the purpose of talking about business or property. He gave evidence that he had never heard his mother say that on her death the Residence would go back to Corrado. He denied attending any meeting in July 1961 or at any other time. His evidence was that the only time he heard his mother talking about what was to happen to the house after her death was in about 1974 when Corrado, Michael and he were painting the Residence. He recalled that on this occasion those present were discussing an Italian family who had been through a dispute over family property. In response to that conversation, Tony recalled his mother saying "The house is for the girls and the boats are for you boys".
Tony gave evidence which suggested that neither Tony or Michael could have been present at any family meeting in late July 1961. This evidence placed Tony and Michael away at Lancelin fishing during the time Corrado claims the meeting was held. It was accepted that Tony was in Lancelin when he received a telegram telling him that his daughter was born on 3 July 1961. He came home briefly for an overnight stay, but otherwise he was at Lancelin throughout July and says that he did not attend any such meeting.
Innocenza did not give evidence, due to ailing health. Pasqualina was too young at the time of the meeting to have participated; that is now accepted by both parties. It was her evidence, however, that she had always thought that the house belonged to her mother. She never heard her mother say at any time that when she died the house would go to Corrado, and that on several occasions, some of which when Christine and Tony were also present, her mother said "The boats are for the boys and the house is for the girls".
While the evidence of Corrado and Pina concerning the July 1961 meeting was mutually consistent, the extent of that consistency as to matters of detail was a matter of concern to me given the number of years that have elapsed. This, together with my observation of their demeanour as they gave this evidence, in particular that of Pina, left me hesitant and unconvinced by their evidence in this respect. I am not persuaded on balance that there was a meeting in July 1961 at which any statement was made by Mrs Palmiotti to the effect that the Residence was to revert to Corrado when she died.

Fishing Boat Partnership

The three Palmiotti brothers, Tony, Corrado and Michael all had experience as fishermen, and after some time in Australia decided to go into business together. There was substantial disagreement between Corrado and Tony as to the precise arrangements regarding their first boat.

Corrado's Evidence Re Partnership

Corrado's evidence is that in June 1962 Tony, Michael and he were all involved in the crayfishing industry, and that he had managed to save about £2200. He recalled that the three of them agreed to build their own boat and go into crayfishing for themselves.
Michael gave him £1000 towards a deposit on a boat. They spoke to boat-builders Coleman & Sons, who agreed to build a 42 foot crayfishing boat to cost in total £11 000. Corrado's recollection was that they paid £4000 to Coleman & Sons, of which Corrado provided £2900, Michael £1000 and Tony £100. It had initially been agreed that Tony would pay £1000 but Tony could not raise the money. To cover this it was Corrado's evidence that he borrowed the deficiency of £900 from his bank, which was secured in part by the personal guarantee of friends Mr and Mrs Amato. Corrado says he repaid the £900 loan to his bank over the next few years. Tony repaid him the £900 out of his earnings from their crayfishing in 1964 and 1965.
The balance of the money beyond £4,000 required to build the boat was, on Corrado's evidence, borrowed from the Fremantle Fishermens Co-Operative (the "Co-op") who advanced the partnership £7,000 on the basis that the partnership was to sell all of their catch to the Co-op and the Co-op would retain 40 per cent of the catch to apply in reduction of the loan and interest. By these means the fishing boat, which they named the San Pasquale, was built and fitted out.
Corrado's investment of £2,000 (leaving aside the £900 on Tony's account) was to provide a capital contribution to the partnership for himself and their mother Mrs Palmiotti. It was Corrado's evidence that at that time their mother asked Corrado to give her an interest in the boat so that she would have an income after he left the house and was married. She wanted the boat registered in one quarter shares for each of herself and her three sons. The sons concurred in this and Corrado said he contributed Mrs Palmiotti's capital contribution as a gift to his mother.
A family partnership, the "Palmiotti partnership", was formed which opened a bank account with the Commercial Bank of Australia in South Terrace, Fremantle. The partnership engaged Mr Pupazzoni as their accountant and it was he who looked after all its books. At the end of each month the partnership would collect a cheque from the Co-op for 60 per cent of the value of the crayfish it had delivered to the Co-op the preceding month. That cheque was then deposited to the partnership account with the Commercial Bank in Fremantle. All bills, for example bait, fuel and other expenses, were said to be given directly to Mr Pupazzoni. He had particulars of the earnings from the crayfishing. At the end of each month, following the deposit of the cheque from the Co-op to the partnership account, the three sons would go to Mr Pupazzoni's office and he would tell them the amount they could each have from the month's fishing. Mr Pupazzoni would draw out three wages cheques on the partnership account in equal amounts for the three sons. Mrs Palmiotti would not receive wages, but would share in the profit of the partnership. It is possible, though, that she did not receive any share of profits until the loan from the Co-op was paid off.
Corrado deposited his cheque to his personal account with the Commercial Bank from which the mortgage payments on the house were made and repayments on the personal loan for the £900. Corrado's evidence was that sometimes, if he had enough money in his account, he would deposit his cheque directly to his mother's account at the Commercial Bank to ensure that she had money to meet household expenses.

Tony's Evidence Re Partnership

Tony's evidence about the fishing-boat partnership was that by 1959 he had earned enough money to buy a quarter share in the fishing boat Sea Queen. As part owner of a fishing boat Tony was a member of the Co-op.
In 1962 Corrado asked Tony to join with him and Michael to share the cost of building and fitting out a fishing boat. Tony had no spare money to put up for the purchase of an interest in another boat. Tony obtained a written estimate from Coleman & Sons to have a 42-foot fishing boat built for £3000. Tony recalled that Corrado and he went to the Co-op to see if they would lend money for the cost of building the fishing boat. There was a meeting where Tony was interviewed by the committee of the Co-op and after the meeting the Co-op agreed to buy the engine and all of the gear needed to fit out the boat. Tony remembered that the arrangement was that they would have to repay the costs of the engine, gear and fit out to the Co-op. The repayments were to be made by selling all of the catch taken by the boat through the Co-op and the Co-op would keep a percentage of the value of the catch.
After the meeting with the Co-op Tony's evidence was that he talked to Corrado and Michael, saying he wanted their Mother to be in the partnership to give her some income of her own. Tony stated that Corrado and Michael agreed to his proposal to include their Mother. The four partners then agreed to open a partnership account at the Commercial Bank and that they would each contribute £750. Tony, however, was only able to contribute £250 at the time.

Tony's evidence is that he repaid his mother the £500 shortfall in two years. However Tony says that at no time did he owe £900 to Corrado or anyone else for the boat's construction. Tony paid the £500 to his mother, he said, because he believed she was the one who had put in the money for him.
It was also Tony's evidence that Mr and Mrs Amato had nothing to do with the boat loan or construction and did not provide any guarantee.

Effect of evidence of Corrado and Tony re Partnership

With respect to Mr and Mrs Amato, it is to be noted than on Corrado's evidence the borrowing of £900 seems more likely to have been by way of personal advance to Corrado than a loan to the partnership. There may well have been a borrowing by Corrado, guaranteed by the Amatos, without Tony being aware of this.
Tony disputes Corrado's evidence that the boat cost £11,000, saying that the boat only cost £3,000 to build.
Tony also disputes that the amount owed to the Co-op for the engine, gear and fit out was in the region of £7,000. He did not recall the precise amount that they owed the Co-op but he did not recall that it was as much as £7,000.
With respect to the costs of the building of the San Pasquale it was my impression of the evidence that much of the disparity between Corrado and Tony was due to Corrado including the value of the engine, gear and fit out in his figure of £11,000, whereas Tony's figure of £3,000 seemed to exclude those sums. There is no difference in practical effect between the Co-op providing the engine, gear and fit out and the Co-op advancing the money needed for the engine, gear and fit out.
This does not explain all of the differences between their recollections however. Given the time that has lapsed – approaching 40 years – and the absence of independent or supporting evidence, the issue so far as it is relevant, falls to be determined substantially as a matter of credibility. Having weighed their evidence as to the fishing partnership in 1962 and thereabouts, and in particular my impression of the clarity and apparent reliability of their recollection of these events so many years ago and their demeanour as they gave this evidence, I am persuaded on balance that Corrado's recollection of these events is the more reliable and complete. I therefore accept his evidence outlined above as to these matters.
The San Pasquale was launched in 1962. From the time the San Pasquale started fishing it earned the family a high income. The loan from the Co-op was paid off over two years.
Over the years since 1962, the four partners came to own and operate other fishing boats. They enjoyed a very good income from these ventures. It is the effect of the evidence which I accept that, whilst Corrado Michael and Tony were working together in partnership, they drew wages each month in the amounts that the partnership accountant (Mr Pupazzoni) advised. At the end of the season, at least after the loan to the Co-op was paid off, profit was split four ways to include their mother. Her income was considerable from this source.

Palmiotti & Co Pty Ltd

In the early 1980s Corrado retired from the partnership and for a year or so he retired from fishing. He later resumed fishing but he never resumed the business relationship with his brothers and mother. The oral evidence suggests he retired in 1983 and that thereafter Tony, Michael and their mother restructured the fishing business. A company, Palmiotti & Co Pty Ltd, was formed and functioned as trustee of the Palmiotti Unit Trust. By this means the assets of the fishing business were held and the business was conducted. The family members who participated in the business did so according to the number of units they held in the unit trust.
While the oral evidence suggests the restructuring occurred when Corrado retired, the Company records suggest it was formed in 1981. That difference is immaterial in this action.
Under the restructure the individual family members who participated did not own the assets of the business although it seems that family members continued to view individual assets as "theirs" or part of their share in the business, in particular with reference to the crayfish pot licenses owned by the business. The number of licensed pots determined the potential size of the catch and therefore the profitability of the business. Thus the pot licenses were regarded as the primary asset of the business.
The licensed pots were themselves a tradeable commodity and, subject to the approval of the licensing authority, could be transferred. The evidence suggests that in the everyday parlance of the family members, the value of the business was essentially seen in the number of licensed pots that were held. The business also owned boats and gear of course.
Only one extract from the Register of Unit Holders of the Palmiotti Unit Trust is in evidence. It relates only to Mrs Palmiotti and Tony. It reveals an original allotment to Mrs Palmiotti and Tony, in each case of 10 $1 units. These allotments were dated 6 April 1984.
This extract from the Register reveals that there was a further special allotment of one $1 unit to each of Mrs Palmiotti and Tony dated 11 May 1992. Despite that date they were physically recorded in the Register after entries made in February 1995. In accordance with this entry, between 11 May 1992 and 16 February 1995 Mrs Palmiotti's interest in the unit trust, like that of Tony, was 11 $1 units.
Some of the witnesses tended to think in terms of their interests in the trust as representing a number of licensed pots. In September 1994 Mrs Palmiotti sold Pasquale, the son of Michael and his wife Christine, what, on the evidence, Mrs Palmiotti and others thought of as nine pots for $90,000. This was given effect in the register by an entry dated 1 September 1994 by which three units were transferred to Pasquale from Mrs Palmiotti.
Christine is a director and is also secretary of the company. She tendered those few records of Palmiotti Unit Trust that were given in evidence. She confirmed that Mrs Palmiotti held units in the unit trust and had been in receipt of an income from the unit trust. Christine's evidence was that the records of the company and the trust showed that Mrs Palmiotti received the income in her own right.
During cross-examination Christine was hesitant about some details relating to the unit trust and also particularly hesitant about details affecting herself or her son Pasquale. At times this hestiance became quite heated resistance. Initially she was not prepared to accept any practical connection between units and the number of licensed pots. That could well have been due, of course, to a strict approach to legal correctness. Not only was that uncharacteristic in this family, more significantly, the full context of her evidence and her demeanour as she dealt with these issues left me with the view that her defensiveness had much to do with the price which Pasquale paid Mrs Palmiotti for the units (or the nine pots) ie $90,000, and the related issue of the value of the units which Mrs Palmiotti later gave to Christine as a gift. She seemed determined to maintain the position that Pasquale paid a reasonable price although attempts to cross examine her about this mostly met with a failure to answer the question asked and the introduction of some different issue by her, some of which might have justified Mrs Palmiotti selling to Pasquale at a reduced price. While she insisted that she never viewed the units in terms of pots, those answers impressed me as being given to deflect the question rather than to reveal the truth.
While there was some contention and variation in the evidence about the value of the pot licenses from time to time, and while they did vary to some degree in value, the predominant view, which I accept is that at least in the period September 1994 to February 1995 a moderate or conservative prevailing value for a licensed pot was approximately $20,000. Thus the sale of nine pots to Pasquale for $90,000 would be at about half their true value. I am persuaded by the evidence that in September 1994 Mrs Palmiotti, Corrado, Christine and Tony understood that Mrs Palmiotti had transferred to Pasquale the equivalent of nine pots and that this was given effect to by the transfer of three units in the trust.
Under cross-examination even Christine in the end apparently agreed that whilst the value of pots fluctuated, their worth could be estimated at roughly $20,000 at about that time. Despite this Christine could not be persuaded to agree that her son Pasquale paid Mrs Palmiotti either a low price or roughly half the value of the three units (or nine pots). Instead, she seemed blatantly determined to avoid that issue insisting that the units were Mrs Palmiotti's to do with as she pleased and adding that Pasquale was the only grandchild who was inclined to carry on the family fishing business. I am left with the clear impression that Christine was deliberately evasive on this issue. This affects my acceptance of her evidence on this and other issues.
After transferring three of her 11 units to Pasquale, Mrs Palmiotti was left with eight $1 units. There was then what was described by Christine, and recorded, as a "reclassification" of units on the 16 February 1995, by which Mrs Palmiotti's units became 15 units at a value of $0.50 each. While the units halved in value it is not clear how 8 units became 15. Tony's 11 $1 units at that time became 20 - $0.50 units on the reclassification.
There were further entries in the Register of Unit Holders on 16 February 1995 by which five of Mrs Palmiotti's 15 units were then "redeemed". Again there is no explanation in the evidence for the redemption. There was no redemption of Tony's units. This was a redemption as distinct from a transfer. As a result Mrs Palmiotti was left with only 10 $0.50 units. Why she apparently lost one third of her holding has not been explained.
There is no evidence to suggest that there was any redistribution of Mrs Palmiotti's redeemed units, whether to any of her other children or grandchildren or otherwise. Christine's evidence is at least clear that the redeemed units were not transferred to Corrado.
That is not the end of the transactions recorded on 16 February 1995. On that same date there was then a transfer of Mrs Palmiotti's remaining 10 reclassified $0.50 units to Tony and Christine, each taking half. These transfers were by way of gift. Mrs Palmiotti thus became divested on 16 February 1995 of her total holding in the unit trust and therefore in the fishing business. A letter was tendered which indicated that the stamp office had accepted the valuation of each of the transfers to Tony and Christine at $90,000 (a total of $180,000) based it appears on the earlier assessment of the units sold to Pasquale.
The evidence is quite confusing as to the worth of Mrs Palmiotti's interest in the fishing business in September 1994 and February 1995. In part this is due to the entire absence of direct evidence as to the value of the fishing business or of the units in the Palmiotti Family Trust. What evidence there was proceeded on the basis which was accepted by most witnesses that the value of a unit could be determined roughly by the value of the licensed pots held, the accepted relationship being that one $1 unit was roughly speaking equivalent to three licensed pots. While some witnesses acceded to that premise with some equivocation, there was no evidence to the contrary. If it be correct, it could be no more than a very rough guide as it proceeds on the basis that the real value of the Palmiotti crayfishing business was the number of income earning pots. It therefore ignores the value of boats and gear apparently on the assumption that, in the absence of licensed pots, these would not have a great value.
There were other unresolved difficulties about this approach in this case. Pasquale purchased the equivalent of nine pots which were represented by the three $1 units which were transferred to him. The units were reclassified, however, to $0.50 in the following February. Yet the cross-examination of the defendant's witnesses on the point (cross-examination being the main source of this evidence) proceeded on the assumption that a $0.50 unit was equivalent to three pots, as a $1 unit had been. The answers given to cross-examination on this point did not advert to the changed value of the units.
Further, the cross-examination of the defendant's witnesses also proceeded on the basis, which mostly came to be accepted, that after Mrs Palmiotti sold the equivalent of 9 pots to Pasquale, her remaining interest in the fishing business was 33 pots. While the witnesses generally came to accept this idea under cross-examination and answered questions accordingly, if that was the position after the sale to Pasquale, Mrs Palmiotti then had remaining the equivalent of 33 pots, yet she held only 8 $1 units. If Pasquale's 3 units represented 9 pots, then Mrs Palmiotti's 8 units could not represent 33 pots, only 24 pots. Yet generally the witnesses accepted in cross-examination these two inconsistent propositions.
The evidence provides no foundation for the view that after the sale to Pasquale Mrs Palmiotti's remaining interest was equivalent to 33 pots, other than the sometimes hesitant concurrence of these witnesses, Corrado's belief that this was so, and his evidence that Mrs Palmiotti said this to him in October 1994.
The most rational reconciliation of all of this confusion and uncertainty would appear to be that if Mrs Palmiotti did hold the equivalent of 33 pots that must have been before she sold 9 to Pasquale. After that sale she would have had the equivalent of 24 pots as her remaining interest in the fishing business. If that were so her remaining interest would have then been conservatively worth roughly $480,000.
Unresolved in the evidence is the effect of both the reclassification to $0.50 units and the redemption of one third of Mrs Palmiotti's units. There is nothing in the evidence to suggest any change in the number of pots or other assets at the time of the reclassification. In the absence of more adequate evidence the more rational view would be that the 15 $0.50 units she held after the reclassification were the equivalent of 24 pots, just as her eight $1 units had been, and that by virtue of the redemption she had been divested of the equivalent to eight pots or roughly $160,000. As indicated, why or how that should occur is not explained nor is there any evidence to indicate whether Mrs Palmiotti was aware of the redemption.
It is clear that five $0.50 units were given to each of Tony and Christine by the Transfers from Mrs Palmiotti which were entered in the Register on 16 February 1995. On the most conservative view of all of this evidence about value, these gifts were each worth some $160,000. Corrado's case is that by transferring these five units to each of Christine and Tony, Mrs Palmiotti gave each of them the equivalent to half of her remaining interest which it is suggested should be accepted as 33 pots, ie that each were given interests worth roughly $330,000. The discussion above is enough to identify why I am unable to accept or find that the five units received by each of Christine and Tony had a value in the order of $330,000. Given the difficulties with the evidence, the only finding I am able to make is that it is more probable than not that the gifts of units by Mrs Palmiotti in February 1995 to Christine and Tony were each worth at least $160,000.
In making these findings I am well conscious that Christine under cross-examination made, or more accurately came very close to, a grudging acceptance that the gift of 5 units to her was the equivalent of around 16 ½ pots. On the other hand Tony, after first accepting that the gift to him must have been of that same order, then grasped the issue more clearly and firmly insisted he had not received that many pots. He accepted in the end he had received the equivalent of 11 pots but this answer appeared to me to be affected by the notion that Mrs Palmiotti's remaining interest was 33 pots and that he and Christine each received in his understanding a third of her remaining interest, ie five units out of a total of 15 units or 11 pots out of 33. In short his answers appeared to be the product of reasoning and calculation rather than knowledge, and there is reason, as I have indicated, to question some of the premises from which that reasoning and calculation proceeded. The same may be said of the position which Christine came close to accepting, although Tony was more frank and forthcoming in his evidence in this respect.

Mrs Palmiotti's 1983 Will

In a will dated the 5 July 1983, Mrs Palmiotti purported to leave her interest in any fishing boat to her three sons, Tony, Corrado and Michael. The contents of the Residence were to go to Pasqualina. The proceeds of the Residence itself were to be divided, one half to Pasqualina, and the remaining half to be shared equally by Maria (Pina) and Innocenza. Although the division of the Residence favoured the youngest daughter Pasqualina it can be said that in general effect the interests in the Residence were to go to the girls and the interests in the boats to the boys.
Mr Minervini gave evidence that from 1983 until 1992 he was the general manager of the Co-op. Mr Minervini is fluent in the Italian dialect spoken in and around Molfetta, as well as in English. Mr Minervini could not directly recall witnessing Mrs Palmiotti's will of the 5 July 1983, but the part of the signature that appears towards the bottom of the copy, which is in evidence, is similar to his normal signature. Mr Minervini's diary also showed a 2pm appointment on 5 July 1983 for attendance at the office of Archie Kaminickas, then a Fremantle solicitor, to witness a will. It was Mr Minervini's practice, when witnessing wills for those who did not understand written English, to translate their contents into Italian.
I am satisfied that Mr Minervini did attend at the office of Mr Kaminickas on 5 July 1983 when Mrs Palmiotti executed this will and that he had translated its contents to her before she executed the will.

Corrado's share of partnership

In 1983 the partnership had three boats which after some minor adjustments, each had about 140 pots:-
1.The San Pasquale II, which replaced the original San Pasquale and was skippered by Tony;
2.The Flavio II that was skippered by Corrado; and
3.The Margherita C that was skippered by Michael.
Corrado's evidence which I accept was that when he retired from the partnership in 1983 the Flavio II was sold for about $400,000. Corrado's evidence was that Mrs Palmiotti received a one quarter share of the money, which was about $100,000. In turn Mrs Palmiotti distributed this equally between her three sons, so that each of them received a cheque for about $33,000. By agreement between the three brothers, Corrado kept the balance of about $300,000 from the sale of the Flavio II and in consideration for that money he gave to Tony and Michael his one-quarter interest in each of the vessels that they skippered.
Under cross-examination it was put to Pina that she had felt entitled to a share of the money generated when the partnership sold the Flavio II in 1983 and that this was a source of conflict between Pina and her mother. This was denied by Pina. Pina said that she had not received anything from the sale of the Flavio II or from her mother at about that time. Pasqualina, however, suggested a different position.
Pasqualina's evidence was that she did her mother's banking and that in 1983, after the sale of the Flavio II, she was directed to pay money from Mrs Palmiotti's account to Innocenza and Pina. Under examination her evidence was that she went to the bank every two weeks and drew out amounts of $2,000 which were paid on an alternating basis to Innocenza and Pina, ie each of them received $2,000 every four weeks. These payments totalled $18,000 to each of Innocenza and Pina. Pasqualina said she too received $18,000 from her mother at this time. However, Mrs Palmiotti's bank passbooks for that period of time were tendered in evidence. They did not reveal that any such withdrawals were made. Under cross-examination Pasqualina conceded that the payments to Pina must have been in 1989 or 1990. Her only explanation was "All I know is that Pina used to always come over to mum's place and she was always asking for money." While she was at first very reluctant to discuss the matter Pasqualina under cross-examination accepted that she went on a trip with a man for about three weeks in the late 1980's. She also admitted that her mother was not very happy "…about her going off, unmarried, with a man for a three week holiday." However it was denied that her mother required her to pay to each of her sisters $18,000 as penance for doing so.

Pina explained that she did receive $18,000 from her mother, but this was in about 1990. Pasqualina delivered this money to Pina's house, she said, in instalments of $2,000. Pina's explanation for this was that Pasqualina had commenced a relationship with a man with whom she went to Melbourne. This did not please Mrs Palmiotti. As a result Mrs Palmiotti made Pasqualina give $18,000 to each of Pina and Innocenza. This money was said to come from a bank passbook account in Mrs Palmiotti's name in which she held money on trust for Pasqualina. The relevant passbooks for this period of time were not discovered and are not in evidence.
It is my finding that no money was paid to any of her three daughters by Mrs Palmiotti at about the time of the sale by the partnership of Flavio II and the winding up of the partnership in 1983. I do find however that $18,000 was paid to each of Pina and Innocenza in 1989 or 1990 out of moneys held by Mrs Palmiotti in a trust bank account in favour of Pasqualina, but these payments were not connected with the fishing business or the Residence.

The Evidence of Martha Amato

During the trial evidence was given by Martha Amato which was received subject to a ruling on admissibility.
That evidence is that Martha Amato was privy to a conversation between her mother and Mrs Palmiotti in 1991. In that conversation, Martha's mother asked Mrs Palmiotti who would receive the house. Martha Amato's evidence is that Mrs Palmiotti replied, "A promise is a promise and the house belongs to Corrado."
I am persuaded that the evidence should be admitted against Pasqualina on the basis that it was a declaration by Mrs Palmiotti, who was then in possession and apparent ownership of the Residence, which qualified her apparent ownership, in circumstances where Pasqualina's present title derives by gift from Mrs Palmiotti. This appears sufficient to bring this evidence within the rule adverted to by Latham CJ in Wiley v Synan (1937) 57 CLR 200 at 209 (though not applied in that case). I am also conscious of the evidence of Tony, Christine and Pasqualina which, in various ways, would suggest that her mother would not or could not have had such a conversation, and also of the evidence of Martha's sister Mary which contradicts Tony, Christine and Pasqualina. As a matter of probability I am persuaded that some such conversation did occur. Its effect is a matter I will consider later in these reasons.

1992 Death of Michael and the 1992 Will

In November 1992 Michael was fishing in Lancelin. He suffered a heart attack and died.
There was dispute as to the effect of Michael's death on Mrs Palmiotti. Some evidence was lead that Mrs Palmiotti held Corrado in some way responsible for not preventing Michael's death, although Corrado was not at Lancelin at the time. There was other evidence that whilst Michael seemed to be somewhat of a favourite son, and the death of Michael caused Mrs Palmiotti intense sadness and grief, she never blamed anyone for Michael's death. I am only able to find, on the evidence, that Mrs Palmiotti suffered considerably because of the death of Michael and never got over her grief at the loss of her son. Perhaps for this reason Mrs Palmiotti's moods came to alter. She was often depressed, withdrawn and upset. This was so until she died.
Michael's widow Christine gave evidence that in December 1992, approximately one month after Michael died, Mrs Palmiotti said she was not happy with her will. Mrs Palmiotti told Christine, in the presence of Pasqualina, that in her will as it currently stood the share of a deceased child went to her other children, and that was not fair. Mrs Palmiotti dictated directions to Christine in Italian as to how she wanted to deal with her property in a new will. Christine wrote the instructions down in English. Christine then gave the instructions to a solicitor who prepared a fresh will.
The witness Mr Minervini, whose evidence I accept fully, recalled going to the office of Frichot & Frichot, solicitors, on 22 December 1992 to translate a will for Mrs Palmiotti. After Mr Minervini translated the will for her and confirmed that she understood it, she executed it. He was one of the witnesses. By this will Mrs Palmiotti's furniture and effects were to pass to Pasqualina. Her shares in any fishing boat or interest in any fishing boat were to pass to Tony, Corrado and Michael's widow Christine, as tenants in common in equal shares. One undivided half share of the Residence was left to Pasqualina and the remaining undivided half share was to be divided equally between Innocenza, Pina, Tony, Corrado and Christine as tenants in common. There was also express provision that in the event of a beneficiary predeceasing Mrs Palmiotti, any children of the beneficiaries would take the share to which his or her parent would otherwise have been entitled.

Mrs Palmiotti's Relationship with Corrado and Pina

There was evidence of a family meeting between Pasqualina, Mrs Palmiotti, Corrado and Tony in 1992 which was organised by Pasqualina in response to something that she had heard. Pasqualina gave evidence that:-
"After Michael died in 1992, I had a business meeting with Corrado at his house. At that meeting, Corrado accused Tony of cheating in respect of the money Tony had to pay to Mum for her share of the fishing catch from the boat Margherita …."
She stated that later in the meeting the disagreement about the allegations Corrado was making was sorted out. At the end of the meeting,
"…Tony said he and Corrado should continue as friends, but Corrado said, 'The cup is broken.' I understood him to mean he did not want to be friends with Tony. Corrado then walked out of the house."
Pasqualina claims that her mother was very upset about the way Corrado behaved after Tony had explained how the Margherita moneys were handled. She says that:-
"That row was never patched up and from then until the date of her death the relationship between Mum and Corrado was very bad."
Without recounting all the evidence relevant to this issue I note my findings that after Michael's death the relationship between Corrado and his mother did deteriorate, although not because of any one event nor to the extent which Pasqualina and others suggested. Corrado and his mother were still in contact, although not as frequently as had been the case, and in various ways it is evident Corrado was still accepted by his mother. He continued to feature in her wills and he shared in the proceeds of the sale by Mrs Palmiotti of a part of her interests in the fishing business in 1994.
In addition to the strained relationship with Corrado, Pasqualina observed that "the relationship between Mum and Corrado, Innocenza and Pina, which had become strained in 1993, continued to be strained right through until 1998."
Pasqualina stated in evidence that:-
"The only member of our family who was overbearing with Mum was Pina. Pina had a loud and aggressive voice and always seemed to be ready to argue with Mum. Some time before 1992, Mum and Pina stopped talking to each other. I do not know why.
Whatever the problem was between Mum and Pina, it was patched up in 1996 or 1997, but after about 8 or 10 months the relationship broke down again. They stopped talking to each other."
Pina's evidence as to her relationship with her mother was that she was very close to her mother and that her mother had usually spent a couple of days per week at her house. She also stated that occasionally her mother would stay at her house for a week at the start of the crayfishing season. As to any rift between Pina and her mother, she stated under cross-examination that she never had arguments with her mother. She did accept this had changed somewhat as it was also her evidence that "Between 1992 and 1998 when she died I had very little communication with my mother who by this time had become very frail and withdrawn." In my finding, while the relationship had deteriorated, Pasqualina's evidence exaggerated the extent and cause of this.

1994 Meeting; Selling of Pots to Pasquale

It was the evidence of Corrado that Pasqualina telephoned him, on a date which he originally thought was September or October 1993 but which in evidence he accepted as occurring in 1994, to say that his mother wanted to talk to him. He visited his mother that afternoon at around 5pm and the three of them had a discussion around the kitchen table. Mrs Palmiotti handed Corrado a cheque for $30,000. Corrado's evidence was that he asked his mother what the money was for. Corrado recalls that his mother replied that she had sold nine pots to her grandson Pasquale for $90,000 and that this was Corrado's one-third share of the proceeds of the sale that she intended to divide equally between her three boys. By this she meant Tony, Corrado, and Christine, who took in place of her deceased husband Michael. Corrado was distressed at the pots being sold for this price. He considered they were worth approximately $20,000 each, and thought a sale at such an undervalue would cause trouble in the family, given the number of grandchildren of Mrs Palmiotti. Corrado recalled his mother saying that she wanted to do this to help Pasquale because he no longer had a father.
In this conversation it was Corrado's evidence that he also raised the issue of his share of his mother's interest in the crayfishing business, and he said his mother commented that she had saved Corrado 33 pots which would always be his, and that the house (the Residence) was his as everyone knew. I note that at this time Mrs Palmiotti had sold to Pasquale the notional equivalent of nine pots and the cheque she gave Corrado was a third share in the proceeds. It was apparent to Corrado that these proceeds were being divided equally between himself, Tony and Christine as Michael's widow.
It was Corrado's evidence that in response to this comment, Pasqualina said words to the effect "Why do you have to talk about this? I am sick and tired of you telling me that the house belongs to Corrado." Corrado recalls that his mother told Pasqualina "You cannot complain. I gave you enough money to buy a house." Corrado then asked his mother how much money she gave to Pasqualina, and Pasqualina responded "That is none of your business." Corrado said that his mother began to cry and was told by Pasqualina "If you don't stop crying I am going to put you in a nursing home." Corrado asked Pasqualina why she made that comment, to which Pasqualina replied "That is the only way to keep her under control. Once she starts crying she never stops." Corrado's evidence was that he left the Residence shortly after that conversation.
Pasqualina recalled the incident to which Corrado referred but disputed the conversation that took place. She recalled Corrado coming to the Residence in September 1994 to collect a cheque for $30,000 which she had written out. There were also two other cheques for $30,000, one for each of Tony and Christine. Pasqualina stated that she established the date of that payment as being September 1994 on the basis of a bank statement of her Mother's. Pasqualina overheard an argument between her mother and Corrado about the sale of crayfish pots to Pasquale. Pasqualina remembers Corrado saying $10,000 was too cheap a price for each of the pots and her mother becoming very angry, saying "Next time I'll give him the pots for nothing because they are mine." Pasqualina said that Corrado responded with words similar to "You can do as you like". She denies that there was any discussion about what was to happen with her Mother's share in the crayfishing business or what their mother was going to do with the house.
I will return to this event later in these reasons.

February 1995 Transfer of Residence to Pasqualina

Pasqualina always lived with her mother. She provided Mrs Palmiotti with extensive care in her later years when Mrs Palmiotti became frail and of poor health. Mrs Palmiotti suffered from diabetes, a heart condition, and bladder and bowel difficulties. In her later years Mrs Palmiotti was somewhat isolated, having very little contact with anyone but her family, principally Pasqualina, Tony and Christine. According to Pasqualina, because of the rifts in the family and because Pasqualina had stayed at home and looked after her mother, Mrs Palmiotti decided to transfer the Residence to Pasqualina. At about the same time Pasqualina said her mother decided to transfer her share in the fishing business, which was by this time in units in the Palmiotti Unit Trust to Tony and Christine. Pasqualina stated that at her mother's request, she arranged for an Italian speaking solicitor Mr Gino Monaco to see Mrs Palmiotti at her home to arrange for the transfer of the Residence and the units relating to the fishing business. The solicitor did not give evidence and only Christine gave evidence of the transfers of the units in the unit trust. I am satisfied the solicitor prepared the documentation necessary for the transfer of the Residence but arranged for the accountant of the company to deal with the transfer of the units. Pasqualina also gave evidence that Mrs Palmiotti knew what she was doing in effecting these transactions and understood the nature of the property that she owned, and intended the results of her actions which she did freely. I am satisfied that Pasqualina was present whenever the solicitor saw Mrs Palmiotti.
The effect of Pasqualina's evidence is that Mrs Palmiotti decided to transfer the Residence to Pasqualina and communicated her decision to Pasqualina at or at about the same time as her decision to transfer to Christine and Tony 10 units in the Palmiotti Unit Trust. The transfer of the units was effected on 16 February 1995. A transfer of the Residence prepared by the solicitor was signed by Mrs Palmiotti on 27 February 1995 although this was not registered until 2 June 1995.
There were, however, two further elements of the rearrangement of Mrs Palmiotti's affairs in early 1995. These were attended to by the same solicitor. The first of these was a Deed of Gift executed by Mrs Palmiotti on 4 May 1995 by which she gave to Pasqualina all her personal property which was housed or normally housed in the Residence, which was then of course her only place of living. Excluded from this Deed was a shed and its contents which was said to be the property of Palmiotti & Co Pty Ltd the Trustee for The Palmiotti Unit Trust. The second was a further will also executed by Mrs Palmiotti on 4 May 1995 to which I now turn. Christine, Tony and Pasqualina were privy to these matters but, at the time, Innocenza, Corrado and Pina had no knowledge of them.

Mrs Palmiotti's 1995 Will

By a will dated 4 May 1995 Mrs Palmiotti left all of her interests in any crayfishing pot license that she owned to Corrado, with a declaration that this bequest was made in view of the fact that her other children had received gifts during her lifetime of an equivalent value. The residue of Mrs Palmiotti's real and personal estate was to be distributed amongst all of her surviving children and Christine, as tenants in common in equal shares.
It is the evidence that Mrs Palmiotti did not then own any crayfishing pot licenses. If this provision reflected the family understanding of the fishing business in terms of pots, then Mrs Palmiotti had been divested in February 1995 of her entire interest in the fishing business by transferring 10 units to Christine and Tony and by the redemption of her 5 other units. Hence the terms of this will, in particular the references to pot licenses and gifts of an equivalent value to her children other than Corrado, suggests that Mrs Palmiotti in May 1995 had a quite mistaken understanding of her assets. It could be that the "redemption" of 5 units, which remain unexplained in the evidence before me, were also unknown or unexplained to Mrs Palmiotti. It is not for me in this litigation to attempt to resolve these issues. The terms of this will indicate, however, that in May 1995 Corrado still had a place in Mrs Palmiotti's thoughts, though not in respect of the Residence.

Mrs Palmiotti's 1997 Will

Another solicitor prepared a further will which Mrs Palmiotti executed on 2 July 1997. Again Pasqualina made the arrangements for the solicitor. By this will Mrs Palmiotti's estate was to be equally divided between her surviving children and her daughter-in-law Christine, with a provision for a gift over to the children of any primary beneficiary who predeceased Mrs Palmiotti.
There was no particular description of any assets in this will so it provides no insight into Mrs Palmiotti's understanding of her estate in 1997. While Corrado no longer enjoyed any special position he ranked equally with her other children and Christine. Of course, by the time of this will, as with the 1995 will, Mrs Palmiotti's assets had almost entirely been transferred to Pasqualina, Tony and Christine.

Probate 1998

Mrs Palmiotti died in 1998. Probate was granted by this court on 16 October 1998 to Tony Palmiotti, being the executor named in the 1997 Will which was annexed to the grant of probate. It will be apparent from these reasons that Mrs Palmiotti's considerable assets had practically been entirely disposed of before her death. It is the circumstances of that disposal, particularly in 1995, which appeared to me to explain much of the deep sense of injustice which Corrado clearly felt about the dealings in his mother's affairs in her last years when her health was extremely poor and Pasqualina, Christine and Tony were close to her.

The Residence: The Effect of the Evidence

Given the state of the evidence much turns on issues of personal credibility. The credibility issues are made more difficult because of the years that have elapsed since some material events and because there are reasons to be hesitant about aspects of the evidence of each of the family members who gave evidence, ie about aspects of the evidence for each party and their supporting family witnesses.
The only claim raised in the action is in respect of the house. While the evidence concentrated a good deal on interests in the fishing activities of members of the family this is relevant primarily to credibility. There is no claim relating to fishing activities. Nor is there a claim which raises issues as to the testamentary competence of Mrs Palmiotti in respect of her 1995 will nor with respect to issues which were half raised in the evidence and submissions whether Mrs Palmiotti's personal will and judgment may have been overborne, particularly in 1994 and 1995. If such issues are to be pursued other proceedings will be required.
Corrado bears the onus of proof with respect to the Residence. He has some support from the evidence of his sister Pina in satisfying this. He not only bears the onus of proof but he must also overcome the legal effect of his own documents and actions.
As pleaded in the statement of claim when it was filed with the writ in December 1998, the case which Corrado originally sought to make good in respect of the residence depends essentially on his pleadings that
•Corrado orally agreed with Mrs Palmiotti, his mother, to transfer the Residence into her name to give her security during her lifetime, once he had repaid a loan of £3,000 from the bank in respect of the Residence, on the promise "in effect" of his mother that on her death the Residence would revert to him;
•The Residence was transferred to Mrs Palmiotti, pursuant to that oral agreement in reliance on the promise, by deed of gift dated 6 November 1964.
Against these aspects of Corrado's case the defence pleaded that by an agreement for sale dated 5 September 1962 Corrado sold a one-half share in the Residence to his mother for £1,662.10.0 and by a transfer dated 6 November 1964 he transferred his remaining half share to Mrs Palmiotti.
It was only in reply to that defence that Corrado first adverted to the transfer of an undivided half interest to his mother in September 1962, but alleged that despite the terms of the agreement there was no sale of that half interest to his mother and that this agreement was entered into without his appreciating that it was an agreement for sale. He pleaded that he entered into the agreement on the advice of the solicitor he and Mrs Palmiotti consulted, which advice was communicated through an interpreter, that to save or minimise tax or duty it was preferable to transfer half of the residence now and the balance at a later time, and he acted upon that advice. The reply goes on to raise that late in 1964 Corrado and his mother once again saw the solicitor and executed another document to transfer his remaining half share to his mother. It further pleads that neither Corrado nor Mrs Palmiotti knew that the 1962 agreement effected a sale of a half interest for valuable consideration and that his mother did not pay any money or give any valuable consideration (other than the promise that on her death the residence would revert to Corrado).

In particulars it is pleaded that Corrado and his mother believed the documents they signed effected a transfer to the mother for no consideration to provide Mrs Palmiotti with security during her lifetime.
Corrado's evidence was that he said to his mother late in July 1961 the he would give the house to her "but everyone in the family has to know that when you die the house comes back to me". This she told all the children of the family, except Pasqualina, on the following Saturday. He had said this to his mother in response to his mother's statement that "I want the house and I want to be sure of a roof over my head until I die. When I die the house comes back to you." He said that he and his mother spoke to a Mrs Annese, who has since died, whom he described as the family interpreter. I accept this to have been the case despite some dispute in the evidence. In January or February 1962 they told Mrs Annese that Corrado had promised to transfer the house to Mrs Palmiotti and they asked Mrs Annese to arrange for lawyers to prepare the documents. It was Corrado's evidence that a few months later he, Mrs Palmiotti and Mrs Annese went to a lawyer's office in Fremantle. Mrs Annese acted as interpreter. It was the lawyer, Corrado said, who proposed that a half interest be transferred now and half later to minimise tax or duty on the transfer. While the evidence is not express, as a matter of inference, there must have been more than one visit to the solicitor in 1962, the first to receive advice and give instructions and the second after the documents had been prepared in accordance with instructions. It would be quite incredible that a lawyer would receive indirect instructions from Mrs Annese to prepare a transfer to give effect to a gift of the residence from Corrado to Mrs Palmiotti and act to give effect to those instructions by preparing an agreement for sale of a half interest in the Residence at an agreed price with a deferred payment of the balance of the price, without first giving advice to his clients and receiving specific instructions. While Corrado's evidence might be understood to suggest that everything was done by Mrs Annese and that all he and his mother did was go to the lawyer's office and sign the documents, in my finding that could not have been the position.
Acting on his lawyer's advice, which on Corrado's evidence was that half should be transferred now and half later, not that there should be an agreement for sale, Corrado says he came to sign the document prepared by the solicitor which was in fact an agreement for sale. This was executed by Corrado and Mrs Palmiotti on 5 September 1962. It was his evidence that he understood this document transferred half of the house to his mother but there was never any agreement to sell her half and he did not understand that to be the effect of the document. Further, even though the agreement expressly acknowledges the receipt of £1,000 of the agreed price of £1,662.10.0, it is his evidence that his mother never paid him a penny for the house. The evidence does not explain the figure of £1,662.10.0 in any way.
It is to be noted that on the evidence Corrado had not, in January or February 1962 nor by September 1962, repaid the £3,000 he had borrowed from his bank in respect of the Residence and which was secured by a mortgage over the Residence. That loan was then being repaid by instalments. The loan was supplemented by a further borrowing in 1963 by Corrado and the total borrowing was finally repaid either late in 1964 or at the beginning of 1965 just before the actual transfer of the Residence to Mrs Palmiotti was registered. In part this borrowing was repaid using Corrado's earnings from the fishing boat the San Pasquale which was built with heavy borrowing in 1962. Indeed in 1962 Corrado had to borrow a further £900 from the bank secured by a guarantee of friends to enable the boat to be built. Hence the approach to Mrs Annese and the solicitors in 1962 could not have been to give effect to the oral agreement as pleaded to transfer the residence once he had repaid the loan of £3,000.
Nor, on his evidence, could Corrado have had the means in 1962 once he had committed himself to the building of the fishing boat by the partnership, to repay that loan. So that he was not in a position to discharge the mortgage to the bank unless, of course, Mrs Palmiotti was able to pay him money sufficient to enable him to clear what he then owed to the bank on the Residence loan. In Corrado's evidence no such payment was ever contemplated or made. Hence it is difficult to accept that the approach to Mrs Annese and the solicitors in 1962 was to transfer title in the Residence by gift to Mrs Palmiotti, which is the evidence of Corrado, as he was not then in a position to do so. I note that the agreement for sale that was executed did not, in fact, involve any dealing on the title, no caveat was registered. Nor, it seems, was the bank notified as it advanced further moneys to Corrado in 1963 and took a further security from him alone over the Residence. Why he and his mother went to Mrs Annese and the solicitor in 1962 in these circumstances, as Corrado's evidence suggests, to arrange a transfer of the Residence by way of gift to Mrs Palmiotti, before the loan from the bank had been repaid and the mortgage discharged, was not explained by Corrado.
Corrado then says that, at his mother's suggestion, he and his mother and Mrs Annese again went to the solicitor late in 1964. Once again the evidence is not express but I infer there was more than one visit to the solicitor in 1964. The transfer which was executed by Corrado and his mother on 6 November 1964, but registered early the next year, expressly recites the contract of sale dated 5 September 1962 by which Corrado sold one divided half share to his mother, and that, therefore, Corrado and his mother were each owners of one undivided half share, and that Corrado now wished to transfer by way of gift his remaining interest. Further, it expressly set out the consideration of £1,662.10.0 "paid to me by the said Margherita Palmiotti". By the time Corrado and his mother consulted the solicitor late in 1964 the date set out in the agreement for sale for the payment of the balance of the purchase price of £662.10.0, which was 31 March 1964, had well passed.
It is Corrado's evidence, nevertheless, that he received no money and that he did not know that the 1962 agreement was for the sale by him to his mother of a half interest in the Residence for £1,662.10.
It was his evidence that he could speak little English and could not read English in 1964. Nevertheless, Mrs Annese acted as interpreter both in 1962 and 1964 and it would be remarkable indeed if the solicitor had not explained through Mrs Annese the nature and purpose, and at least the essential terms, of the document he prepared on each of these occasions.
Further, in a statutory declaration sworn by Corrado on 8 October 1998, ie before these proceedings were instituted, Corrado swore that
"In 1964 with the help of a family friend and interpreter the house was transferred to my late mother's name. I have been shown copies of the transfer by gift dated 6 November 1964 and the reference to a sale of a half interest to my late mother by a contract of sale dated the 5th day of September 1962. At the time of the transfer of the house to my late mother in 1964 I could speak very little English and could not read English at all. I have no knowledge as to why the transfer refers to an earlier sale of a half interest in the house to my late mother. No such sale of a half interest to my late mother ever took place."
This statutory declaration is consistent with what is pleaded in the statement of claim of an oral agreement in 1961 to transfer by way of gift and a transfer pursuant to that in November 1964. It is not consistent with Corrado's reply which was filed on 25 June 1999. The matter having been raised by the defence, the reply, for the first time, dealt with the 1962 agreement as to a half interest in the residence. Corrado's sworn assertion in the statutory declaration that he had "no knowledge" why the transfer refers to an earlier sale of a half interest in the house does not sit consistently with either the reply or his evidence before me. In submissions, his counsel contended that there was no inconsistency as, in Corrado's evidence, he didn't ever understand that the 1962 transaction was by way of a sale of a half interest, and on his account no such sale ever took place. It is not Corrado's evidence, however, that he did not recall the 1962 transaction when he swore the statutory declaration or when he gave instructions for the statement of claim. Even had he not understood the true nature of the 1962 transaction, on his evidence he did know that he had signed a document which transferred a half interest to his mother in 1962. As recited in the 1964 transfer the 1962 document was in form a sale. The most generous view that could be taken is that the statutory declaration was a half truth. A view, which is equally open, is that at the time of the statutory declaration Corrado was not prepared to acknowledge the 1962 transaction, or that it was in the form of a sale. Each of these is strange as the 6 November 1964 transfer to which he referred, referred to the 1962 transaction and its nature. The terms of the statutory declaration and the other matters which I have dealt with, leave me unpersuaded that the veracity of Corrado about the events of 1961-1965 concerning the Residence and his mother can be relied on.
There is a further concern. It was Corrado's evidence that the transfer to his mother was to give her security during her life. His condition for the transfer was that the property revert to him on her death. This condition was of such concern to him, on his evidence, that he ensured that the other children (save in the end Pasqualina) knew of this at the time. His pleaded case emphasised this condition. This was the effect of the oral agreement with his mother. It was a pleaded term of her promise that upon her death the Residence would revert to him, or "would go back to him". Given the significance to Corrado of this term of the agreement to which effect was being given, there has been no explanation, or no satisfactory explanation, in the evidence of Corrado why this was not reflected in either or both the 1962 and the 1964 documentation prepared by the solicitor. It is surprising and difficult to accept that Corrado never thought to instruct the solicitor about this term which, on his evidence, was so important to him. If he did put this to the solicitor it is even more difficult to accept that effect would have been given to his instructions in the manner which it was. It is possible that Corrado omitted by design or oversight to raise with the solicitor that the property was to revert to him on his mother's death, perhaps because, as was suggested, he saw that as a matter to be left to his mother to honour. In my finding, however, as a matter of probability, it is more likely than not that the importance which Corrado insists he attached to this at the time would have caused him to instruct the solicitor that, as agreed between his mother and himself, the residence was to revert to him on her death, were that in truth agreed in 1961 as Corrado seeks to establish.
It is submitted that I might find that the interpreter, Mrs Annese, might not have mentioned this element of the agreement to the solicitor. I am not able to accept this as a probable view open on the evidence. It can be no more than a remote possibility that as a family friend interpreting for the Palmiottis and the lawyer, she would omit from her interpretation such an issue if it was raised by Corrado or Mrs Palmiotti. Insofar as the submission may have been grounded in the possibility that Mrs Annese might have instructed the solicitor in the absence of Corrado and Mrs Palmiotti who attended merely to sign documents, I have already indicated my reasons for rejecting that possibility.
There is some evidence about Mrs Palmiotti's means. Corrado and Pina suggest that she had £500 when she arrived from Italy but Pina says she spent this equipping the house. Mrs Palmiotti's only income, apart from the modest pension payments she received, were the sums given her by Corrado, Michael and Pina and her husband. As to the latter Pina's evidence suggested their payments were only about £2 per week, although she did also help with some other expenses. The evidence is not specific as to the amounts Mrs Palmiotti received in this way, save for Pina's evidence, nor as to the expenses she met in running the household. There is some dispute whether Michael had any work during his first year in Australia but I accept that he did work initially as a carpenter and so was in a position to contribute. The only banking record tendered was a passbook, which was discovered in the proceedings by Pasqualina, which commenced in early 1993, interestingly, with a credit balance of £500. It fluctuated considerably thereafter during the relevant period. There is nothing to indicate the withdrawal in that period of a lump sum of £662.10.0, which was the balance outstanding under the 1962 agreement for sale. There is nothing, however, to suggest that if that balance was paid to Corrado the payment was by way of a lump sum. If the payments were by instalments from time to time, the passbook is of no assistance either way. There is nothing to reveal what money Mrs Palmiotti had in her bank in 1962, or between July 1961 and September 1962 by which time the £1,000 is said, by the agreement, to have been paid by her. On Tony's account, Mrs Palmiotti was a woman of some means at this time. It is his evidence that she not only contributed £750 to the fishing partnership but also advanced £500 on his behalf to the partnership. While I have preferred Corrado's evidence as to the dealings of the sons and Mrs Palmiotti over the fishing partnership in 1962, at least to Tony it was not a matter of surprise that Mrs Palmiotti had been able to gather together such amounts of money by 1962.
This short restatement of the evidence is sufficient to indicate that there is no clarity or certainty about Mrs Palmiotti's financial position in 1962, or between 1961 and 1965. While I am generally persuaded, as a matter in particular of impression from the content of and manner in which they gave their evidence, that Corrado had a better grasp or more reliable recollection of the details of the fishing partnership in 1962 and the building of the San Pasquale than had Tony, and that I should accept Corrado's evidence in these respects in preference to that of Tony's, which I do, this merely brings into focus the further circumstance that in 1962 Corrado was clearly hard pressed to raise the money necessary to build the San Pasquale and in that situation payment to him by his mother of £1,000 pursuant to an agreement for sale of the Residence would have been welcome. The evidence does not suggest or establish that this occurred, but the circumstances serves to further illustrate the difficulty involved in an evaluation of credit in this case.
An assessment of this evidence as to Mrs Palmiotti's means, however, provides no real assistance in reaching a decision in 1999 whether or not Mrs Palmiotti could have paid Corrado a total of £1,000 by September 1962 as recited in the agreement for sale, or could have paid the balance of £662.10.0 before 6 November 1964. I am certainly not satisfied that it has been shown that her financial circumstances were such that she could not have paid either or both those amounts. I do not make a finding that I am persuaded on balance that she did pay £1,662.10.0 to Corrado. The evidence is so incomplete and unsatisfactory that I am unable to make a positive finding one way or the other. It is the position though, as indicated, that it is not been shown, as Corrado's case set out to do, that Mrs Palmiotti could not have paid either or both the £1,000 or the £662.10.0.
Turning from the difficulties in the evidence which I have been discussing, in view of the submissions for Corrado I should note that had it been his intention to transfer the residence to his mother as a gift in 1962, it is clear that to do so would incur gift duty as well as stamp duty. Gift duty on £3,325 (ie double £1,662.10) would have been £99.15.0 (at three per cent see Gift Duty Act 1941 (Cth) and Gift Duty Assessment Act 1941 (Cth). There is reason to question, however, whether the true value of the Residence in 1992 was not greater than £3,325. Corrado had paid £3,500 for it in 1957 and his evidence was that he had spent in the order of £900 on some improvements. Had the Residence a true value of £4,000, for example, in September 1962 the gift duty on a transfer of the Residence by way of gift would have been £120. In 1962 and 1964 it was a feature of the legislation that a gift or a series of gifts totalling or exceeding £2,000 in any period of 18 months was dutiable, otherwise duty was not payable. It follows from this that if the true value of a half interest in the Residence was less than £2,000, a gift of a half interest in 1962 and a gift of the balance more than 18 months later would not incur liability to pay gift duty. Nor would a single gift of a remaining half interest in the Residence in November 1964.
Relying on Corrado's evidence that the solicitor in 1962 advised that duty or tax would be saved by transferring a half interest in 1962 and the balance in 1964, counsel for Corrado has drawn on the above features of the then gift duty legislation by way of submission or conjecture, to justify that advice and therefore, it is contended, to add weight to Corrado's evidence in this respect. Counsel goes a step further, however. Relying on the matters referred to a little earlier as to the possibility that in 1962 the residence had a true value higher than £3,325, counsel submits or conjectures that a sham agreement for sale was advised by the solicitor for the transfer of the first half interest in the residence in 1962, rather than a gift. It is submitted this should be seen to be a calculated attempt to avoid a valuation of the Residence being required by the State Stamp Duty Authorities. It is submitted that an outright gift, whether of a half interest or the entire interest in the Residence, would, of necessity, have required a valuation to determine the liability for stamp duty (which was then payable at the rate of 5 shillings for every £25 or part thereof; see Stamp Act 1921-1961 (WA) cf Sch 2). It is then submitted that there was reason for the solicitor to think that the true value of the Residence would be found to be, or to exceed, £4,000 on valuation. While the consequence for stamp duty purposes would not be very significant, it is the submission or conjecture that there would be, in these circumstances, a likelihood that gift duty would come to be levied following a valuation. The submission or conjecture is, therefore, that by use of a sham agreement for sale at a value for a half interest which was only a little less than Corrado paid for the Residence, although well less than the £2,000 threshold for gift duty, the State Stamp Duty Authorities might well not require a valuation. In fact, that proved to be the case. Hence, no gift duty was paid and stamp duty in all was levied on a value of £3,325.
There is a plausibility to all of this if the propriety of the conduct of the solicitor is overlooked, although it has scant grounding in the evidence save the advice that tax or duty would be saved if the transfer of the Residence was in two stages. It does depend initially, however, on there being initial instructions in 1962 to the solicitor to transfer the whole of the residence to Mrs Palmiotti by way of gift. I have already detailed my reservations about this. The question whether the agreement for sale was merely a sham, or represented the true nature of the transaction, is also affected by the other considerations which have been canvassed earlier in these reasons.

I am also well conscious of Pina's evidence. As previously indicated, this so closely accorded with Corrado's evidence, however, especially as to the family meeting in July 1961, as to leave me hesitant about the veracity of each of them over this event so long ago. There is also the contrary evidence of Tony.
Having weighed carefully this body of evidence, and having in particular given weight to my impression of the manner and veracity of Corrado as he gave his evidence relating to these issues and generally, as well as my impression of the evidence of Pina and Tony and the manner in which it was given, I am left in the position that I have not been persuaded on the balance of probabilities that the agreement for sale was a sham, or that Corrado did not, in September 1962 or in November 1964, realise the nature and general effect of the September 1962 agreement for sale. I should make it clear that I am not persuaded to make a positive finding that the September 1962 agreement for sale was genuine. I find myself in the position that the onus of proof is determinative. Corrado has not been able to persuade me that the essential nature and terms of the agreement he signed in 1962, or the recital of the essential nature and terms of the September 1962 agreement which were contained in the transfer he signed in November 1964, were not comprehended by him at least for their general effect. I am unable therefore to be satisfied that the true position was that he transferred the Residence to his mother entirely by way of gift and without receiving any financial consideration from her.
Further, I am unable to be satisfied that the transfer to his mother was pursuant to an oral agreement, a term of which was that on her death the Residence would revert to him, or pursuant to any agreement to somewhat similar effect, or on the condition or basis of or induced by an oral promise by his mother to him that the Residence would revert to him on her death.
Other features of the evidence have not enabled me to make a positive finding about these fundamental issues concerning the dealings of Corrado and his mother in the period 1961-1965, whether a finding in favour or against Corrado.
In particular, the various wills executed by Mrs Palmiotti, including the 1995 will, each suggest that Mrs Palmiotti did not regard herself as bound or under some obligation to provide for the Residence to pass to Corrado, and her transfer of the Residence to Pasqualina is stark further evidence of this.
Further, it was the effect of Corrado's evidence that there was a further promise or commitment by his mother to him which arose from the quarter share in the original fishing partnership which he contends he, in effect, gave to his mother in 1962 by contributing £1,000 to the partnership funds on her behalf. It was his evidence that he did this to provide her an income just as, on his evidence, he gave her the Residence to provide her with the security of a roof over her head for life. As with the Residence it was the effect of Corrado's evidence that his mother promised he should have her original share of the fishing business when she died, or some such undertaking. Yet the terms of Mrs Palmiotti's wills, varied as they were, do not reveal that she held herself bound or under some obligation to leave to Corrado, as he asserted in evidence was the case, the current equivalent of her original quarter share in the fishing partnership. By some process of reasoning, which was not made clear to me in the evidence, Corrado had determined that by 1994 the 33 pot licences was the interest Mrs Palmiotti held in the fishing business in 1994 which then represented her original quarter share in the 1962 partnership. Of course, in truth she did not hold any pot licences. She held units in the Palmiotti Unit Trust. But in the thinking of Corrado and apparently of Mrs Palmiotti her holding was in reality the equivalent of 33 pot licenses. As he described it in evidence, what he referred to as the 33 pots was "my share of (his mother's) interest in the crayfishing business". So it was that he said in evidence that he understood and believed he was entitled to the 33 pots (in truth her remaining units in the trust) on her death and that in October 1964 she accepted that this was so. Yet she divided this remaining interest, giving five units to Christine and five units to Tony, in February 1995. There is an issue whether she may then have believed there were five units remaining which she intended by her 1995 will to pass to Corrado on her death. Such a three way distribution of her fishing interests would be consistent with her distribution in September 1994 of the $90,000 she received from Pasquale. Even if that were correct, she appears in February 1995 not to have regarded the whole of her remaining interest in the fishing business, ie the units she held in the trust, or as Corrado would describe it the 33 pots, to be Corrado's entitlement as he asserts. Her previous wills do not indicate that she regarded Corrado as having a claim on her as to any particular part or proportion of her interest in the fishing business.
Of course, Mrs Palmiotti's varying testamentary intentions and her dealings in the units in the family trust cannot be determinative. They do not, however, offer any support for Corrado's position and for his evidence as to his mother's stated commitments or intentions. They tend to contradict him.
There is also some evidence, from witnesses called for the defendant, that on occasions Mrs Palmiotti spoke in terms of the boats for the boys, the house for the girls. While her precise intentions varied in the various wills, and while Christine clearly came to rank in Michael's place after his death, generally speaking her wills were more consistent with such an approach than any understanding that the residence and some part of her fishing interests were Corrado's.
There is the evidence of Martha Amato. While on the probabilities I am persuaded that some conversation of that nature did occur, I am not persuaded by that to the view that Mrs Palmiotti had promised to hold herself bound to ensure the transfer of the Residence to Corrado on her death as a term or condition of the Residence being transferred to her. While this conversation gives some support for Corrado's position, it is too vague and imprecise to overcome the other problems in the evidence to which I have adverted so as to enable a positive finding in favour of Corrado as to the position regarding the transfer of the Residence in 1961-1965.
The sharp division between Pasqualina and Corrado as to the conversation in or about October 1994 cannot be explained except on the basis that at least one of the two is not truthful about this event. Pasqualina has shown herself to be unreliable or deceitful in some other matters. Notwithstanding the clear financial advantage which she has gained in the Residence and which she seeks to secure in these proceedings, and the element of common self interest she shared with Tony and Christine in the distribution by Mrs Palmiotti of her assets to them early in 1995, and the unsatisfactory nature of her evidence about aspects of that, I am also significantly influenced by the demeanour of Corrado and Pasqualina as they gave their evidence about the October 1994 meeting and also by the apparent circumstance that on Corrado's evidence his mother must have been lying to him as to her intentions at that meeting. This is so at least in view of the terms of her 1992 will which was then current. It is also apparent that by early 1995 she was acting quite contrary to the position which, on Corrado's evidence, she held to without question in the October 1994 meeting. While she may have changed her mind in the interim, the evidence does not suggest any particular reason for her to do so and the 1995 will is more consistent with the 1992 will then with Corrado's account of her words in 1994. There is no apparent reason why Mrs Palmiotti would lie to her son in October 1994. It was, after all, the very purpose of that meeting to give him a further $30,000, being a third share of a return she had then received from the sale of a part of her interest in the fishing business to Christine's son Pasquale. Corrado had not then been dismissed from her mind or favour as some of the evidence for the defence would have it.
Having weighed all these aspects I am not persuaded that in or about October 1994, in the presence of Corrado and Pasqualina or at all, Mrs Palmiotti said to Corrado to the effect that "I have saved for you 33 pots which cannot be touched because they are yours", or that she said to the effect "You know that the house is yours, everybody knows that". Nor am I able to conclude that Pasqualina said to her mother at that time to the effect that "I am sick and tired of you telling me that the house belongs to Corrado".
This last matter is also relevant to the case for Corrado insofar as it seeks to establish that Pasqualina had knowledge of Corrado's claim or entitlement to the Residence on their mother's death. I have already indicated that Corrado, in his evidence, accepted that Pasqualina was not present at the 1961 meeting (which he asserts occurred) when he says this was made known to other members of the family. His pleaded case also asserts that this entitlement of his to the Residence on their mother's death was commonly discussed at family gatherings. The evidence, however, fails in my finding to make out this allegation. On the question of knowledge, Corrado's case thus relies on the conversation in or about October 1994 between Mrs Palmiotti, Corrado and Pasqualina. For the reasons which I have just given, I am unable to find that at that meeting there was an assertion by either Mrs Palmiotti or Corrado to the effect that the Residence belonged to Corrado or would revert to him on Mrs Palmiotti's death, nor am I able to find that Pasqualina said words which evidenced that she was aware of that. It follows, therefore, that so far as knowledge by Pasqualina is relevant, I am not persuaded on the evidence that Pasqualina had any requisite knowledge.

Legal Issues

The case for Corrado is that he transferred the title to the Residence to his mother as a gift at her request and on her promise and their agreement that when she died the house would come back to him. In so doing, it is the case for Corrado that he clearly acted to his own detriment and because of the promise of his mother and their agreement. In these circumstances it is the submission for Corrado that it would be unjust or unconscionable for Mrs Palmiotti to dispose of the Residence other than to Corrado and that she held the reversionary estate in the Residence on a constructive or resulting trust for Corrado. It is further submitted that Pasqualina took her title to the Residence with knowledge of and therefore subject to the trust or, being a volunteer, the Residence was given to her subject to the trust.
It is submitted for Corrado, therefore, that Pasqualina now holds her title to the Residence on behalf of Corrado whose equitable right to the reversion persists against her. Reliance is placed inter alia on Strang v Owens (1925) 42 WN (NSW) 18; The Hancock Memorial Foundation Ltd & Anor v Porteous & Anor [1999] WASC 55. With respect to the creation of the trust, in particular, there was reliance on Muschinski v Dodds (1986) 160 CLR 583 at 593-594, 614 and on Gissing v Gissing [1971] AC 886 at 905. Reference was also made to Napier v Public Trustee (WA) (1980) 32 ALR 153.
Had the critical factual foundations for these propositions been made good a number of legal issues which were raised for Pasqualina would have required attention. These include the effect of the agreement for sale of a half interest to Mrs Palmiotti, an issue which Corrado's case sought to overcome on the factual basis that, in truth, there never was such an agreement.
In view of the findings of fact to which I have come, however, it is unnecessary to give consideration to these matters. The plaintiff has not been able to establish the critical factual foundations on which his case depended. There is no reason, therefore, to give more attention to these matters.

Conclusion

For these reasons the plaintiff's claim is dismissed.