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Reitano v Reitano

Reitano v Reitano

Case [2012] NSWSC 1127 17 September 2012

Contract Formation

Unconscionable Conduct

Fiduciary Duty

Equitable Estoppel

Admissibility of Evidence

Contract Law

Trusts & Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Reitano v Reitano [2012] NSWSC 1127
Hearing dates: 11, 13 and 14 September 2012
Decision date: 17 September 2012
Jurisdiction: Equity Division - Expedition List
Before: Pembroke J
Decision:
See paragraph [39]

Catchwords: CONTRACT - oral contract - evidence of contract - subsequent conduct admissible to prove existence of contract
TRUSTS AND TRUSTEES - oral declaration of trust - subsequent conduct admissible to prove existence of trust
CONTRACT - intention - contracts between family members - no presumption against intention - seriousness and finality of circumstances
EQUITY - part performance - answer to reliance on Sections 54A and 23C of the Conveyancing Act - conduct must be unequivocally referable to contract of general nature of that alleged - multiple acts of part performance unequivocally referable - sole possession and exclusive control for 25 years - no alternative agreement alleged
Legislation Cited: Conveyancing Act 1919
Cases Cited: Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Chidiac v Maatouk [2010] NSWSC 386
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
Khoury v Khouri [2006] NSWCA 184
Kriketos v Livschitz [2009] NSWCA 96
Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23
Millett v Regent (1975) 1 NSWLR 62
Regent v Millett [1976] HCA 40; (1976) 133 CLR 679
Tadrous v Tadrous [2010] NSWSC 1388
Thomas v SMP (International) Pty Ltd [2010] NSWSC 822
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Category: Principal judgment
Parties: Alfred Reitano - plaintiff
Grace Reitano - first defendant
Jose Perez - second defendant
Representation: Counsel:
B A Coles SC with M K Rollinson - for the plaintiff
P M Lane - for the first defendant
Solicitors:
Di Lizio & Associates - for the plaintiff
Perez Varela Lawyers - for the first defendant

File Number(s): 2012/122064

Judgment

Introduction

The plaintiff is the only son of the defendant. He claims entitlement to ownership of a property at Alexandria in Sydney of which his mother is the registered proprietor. She left Australia for Spain in 1987 never to return. The plaintiff has lived alone in the property for almost 25 years and has paid all of the expenses and incidents of ownership since 1986.

As a matter of legal analysis, the plaintiff's claim rests on three bases: either an agreement to transfer ownership or an agreement to create a trust or a declaration of a trust. But there is no writing and the formalities of Sections 54A and 23C of the Conveyancing Act 1919 have not been complied with. The plaintiff says however that the doctrine of part performance enables his claim to be vindicated notwithstanding the absence of writing.

Credibility

I will shortly set out my findings of fact but I should make some preliminary observations about the comparative credibility of the evidence of the plaintiff and…

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 Reitano v Reitano

Details

AGLC: Reitano v Reitano [2012] NSWSC 1127
Case: [2012] NSWSC 1127
Decision Date: 17 September 2012

CaseChat Overview and Summary

The parties in the case of Reitano v Reitano were siblings who were disputing the existence of an oral contract regarding the ownership of a property. The matter was heard in the Federal Court of Australia. The central issue was whether there was evidence of an oral contract and if subsequent conduct could be admitted as proof of the contract's existence. The court also needed to determine if there was an oral declaration of trust and whether subsequent conduct could be used as evidence of such a trust.

The court considered that there was no presumption against the existence of an intention to create legal relations in family agreements. It noted that the seriousness and finality of the circumstances could establish the intention to be legally bound. The court further examined the doctrine of part performance as an alternative to reliance on specific sections of the Conveyancing Act. It held that conduct must be unequivocally referable to a contract of the general nature alleged. In this case, the conduct was found to be unequivocally referable to the alleged contract, and the party had exclusive control and possession of the property for 25 years without any alternative agreement.

The Federal Court found that the evidence of the oral contract and the subsequent conduct of the parties was sufficient to establish the existence of both an oral contract and an oral declaration of trust. The court concluded that the conduct of the parties, particularly the exclusive possession and control of the property, was unequivocally referable to the alleged contract and trust. As a result, the court held that the oral contract and trust were valid and enforceable. The court ordered that the property be held in trust for the benefit of both parties according to the terms of the oral agreement.

Orders