Pupo v Pupo; Pupo v Pupo - [2015] NSWSC 1633

Supreme Court

New South Wales

Medium Neutral Citation: Pupo v Pupo; Pupo v Pupo [2015] NSWSC 1633
Hearing dates: 7 April 2015; 6, 7, 8, 12 October 2015
Date of orders: 06 November 2015
Decision date: 06 November 2015
Jurisdiction: Equity
Before: Hallen J
Decision:
In proceedings 2014/264225:

1.    Order that the whole of the Statement of Claim be dismissed.
2.    The parties are to make submissions on what costs orders should be made in the proceedings.
3. Direct that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26).

In proceedings 2014/228570:
1.    Order that the whole of the proceedings be dismissed.
2.    Order that the Plaintiffs’ costs as agreed, in the sum of $4,000, be paid out of the proceeds of sale of the Leichhardt property.
3.    Note the agreement of the parties in Paragraphs 3, 4, 5, 6, 7 and 8 of Short Minutes of Order dated 12 October 2015 signed by the legal representative of each of the parties.
4. Direct that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26).
Catchwords:
EQUITY – Trusts – Whether resulting or constructive trust – First plaintiff, the father of the Defendants alleged to have provided part of purchase price of property in name of three of his sons

EQUITY – Whether equitable lien securing alleged contributions

Court not satisfied that any contribution to purchase price made by first Plaintiff – Even if contribution made, court not satisfied of the amount of the contribution
PROPERTY (RELATIONSHIPS) ACT – Claims for adjustments of property pursuant to Property (Relationships) Act 1984 (NSW) – Only one property the subject of claim – Whether parties living together in a close personal relationship – Parents and son – Parents and son and daughter in law – Whether living together – Respective contributions of parties – Where Plaintiffs’ financial and non-financial contributions unremarkable – Where Plaintiffs obtain countervailing benefits from relationship, financial and otherwise, including occupation of part of the subject property registered without payment of rent or occupation fee – Holistic value judgment – Not just and equitable to make any adjustment order
Legislation Cited: Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Fair Trading Act 1987 (NSW)
Property (Relationships) Act 1984 (NSW)
Real Property Act 1900 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ballard v Multiplex [2012] NSWSC 426
Bibby Financial Services Australia Pty Limited v Sharma [2014] NSWCA 37
Blatch v Archer (1744) 1 Cowp 63; 98 ER 969
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599
Harbour Port Consulting v NSW Maritime [2011] NSWSC 813
Harkness v Harkness [2011] NSWSC 1421
Howlett v Neilson…

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.

Keep reading for free

Create a free CaseChat account to read Pupo v Pupo; Pupo v Pupo and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 1633
Decision Date: 06 November 2015

CaseChat Overview and Summary

In the case of Pupo v Pupo, the first plaintiff, who is the father of the defendants, sought to establish a resulting or constructive trust over a property he claimed to have partly financed. The dispute was heard in the Supreme Court of New South Wales. The first plaintiff alleged that he had contributed to the purchase price of the property in the names of three of his sons. He sought either the recognition of a trust over the property or an equitable lien securing his alleged contributions.

The court had to determine whether the first plaintiff had indeed contributed to the purchase price of the property and, if so, the amount of that contribution. Additionally, the court needed to consider whether the property was subject to a resulting or constructive trust, or an equitable lien. Furthermore, the court needed to assess whether any adjustment of property pursuant to the Property (Relationships) Act 1984 (NSW) was warranted. The court needed to consider whether the parties were living together in a close personal relationship and the respective contributions of the parties to the property.

The court found that it was not satisfied that any contribution to the purchase price was made by the first plaintiff. Even if such a contribution had been made, the court was not satisfied as to the amount of the contribution. The court also found that the parties were not living together in a close personal relationship for the purposes of the Property (Relationships) Act 1984 (NSW). The first plaintiff's financial and non-financial contributions were deemed unremarkable, and he obtained countervailing benefits from the relationship, including the occupation of part of the property. Given these circumstances, the court determined that it was not just and equitable to make any adjustment order. The court dismissed the claims.

Orders