Parente v Parente - [2006] NSWSC 1154

CITATION: Parente v Parente [2006] NSWSC 1154

HEARING DATE(S): 30, 31 October 2006

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 10/31/2006

DECISION: Proceedings by plaintiff claiming equitable interest in land dismissed.

CATCHWORDS: TRUSTS [103]- Constructive trust- Purchase of property by father- Son contributed wages towards purchase- Father intimated to son that son would receive half share in property when father died- Whether constructive trust arises by promissory estoppel- Promise vague- Reliance on promise not established- Monies paid because of filial duty of son to family- Held no constructive trust.

CASES CITED: Allen v Snyder [1977] 2 NSWLR 685
Attorney-General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114
Barns v Barns (2003) 214 CLR 169
Baumgartner v Baumgartner (1987) 164 CLR 137
Grant v Edwards [1986] Ch 638
Hewett v Court (1983) 149 CLR 639
Jennings v Rice [2002] EWCA Civ 153
Muschinski v Dodds (1985) 160 CLR 583
Orr v Ford (1989) 167 CLR 317

PARTIES: Emidio Antonio Parente (P)
Berardino Parente (D)

FILE NUMBER(S): SC 4712/05

COUNSEL: R Sergi (P)
S Austin (D)

SOLICITORS: Palmieri Law Firm (P)
Paul Gowran & Co (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 31 October 2006

4712/05 – PARENTE v PARENTE

JUDGMENT

1 HIS HONOUR: These proceedings are brought by a son against his father, claiming a half interest in the family home. That home is at 6 Pokolbin Street, Broadmeadow and I will refer to it subsequently in these reasons as "the Property".

2 The plaintiff's statement of claim says that he and his father arrived in Australia from Italy in October 1967. Initially they both lived with the plaintiff’s elder sister, Nina Di Claudio, in the Newcastle area and they both went to work as labourers at Electric Power Transmission at Carrington in Newcastle, commonly called EPT.

3 The plaintiff says that shortly after commencing work at EPT he and his father entered into an arrangement whereby he was to pay his father all his earnings for the purpose of assisting his father to buy a residence. In return, he was promised by his father that he would be a half owner in that property one day. He says, as is common ground, that the father purchased the property in late 1969 and that the title was put in the father's sole name. The evidence shows that with on-costs, the purchase cost was $9,275, of which $5,450 was raised by mortgage from the Commonwealth Bank, so that about $3,825 was paid by the defendant and there is little doubt in my mind that part (though I do not know what part) of this $3,825 originated from moneys paid by the plaintiff to the defendant.

4 The rest of the family had been left in Italy. They comprised the wife of the defendant and mother of the plaintiff, Rosa Parente, and seven other children. They came to Australia in March 1970. The family…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Parente v Parente

Details

AGLC: Parente v Parente [2006] NSWSC 1154
Case: [2006] NSWSC 1154
Decision Date: 31/10/2006 ex tempore

CaseChat Overview and Summary

The case of Parente v Parente involved a dispute over the ownership of a property purchased by the father, where the son claimed a half share based on a promise made by the father. The son argued that he had contributed his wages towards the purchase price and that his father had assured him that he would receive a half share in the property upon the father's death. The matter was heard and determined in the Family Court of Australia. The central legal issue before the court was whether a constructive trust arose by way of promissory estoppel in favour of the son, given the father's promise.

The court examined whether the son had established reliance on the father's promise and whether the promise was sufficiently clear and unambiguous to give rise to a constructive trust. The court found that the promise was vague and did not provide a clear and unequivocal assurance of a half share in the property. Furthermore, the court held that the son's contributions towards the purchase price were made out of filial duty rather than reliance on the promise. Consequently, the court concluded that the son had not demonstrated the necessary reliance on the father's promise, and thus, no constructive trust arose in his favour.

In light of the above, the court dismissed the son's claim for a constructive trust over the property. The court's reasoning was based on the lack of a clear and unequivocal promise, as well as the absence of reliance on the promise by the son. The son's contributions were made out of a sense of filial duty rather than reliance on the father's assurance of a half share in the property. As such, the court held that no constructive trust existed in favour of the son.

Orders