Rosselli v Rosselli
[2007] VSC 414
•26 October 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6317 of 2004
| ROMOLO ROSSELLI | Plaintiff |
| v | |
| FIONA ROMA ROSSELLI (Executrix of the will of Remo Rosselli) | Defendant |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6-7, 10-14, 17 & 19 September 2007 | |
DATE OF JUDGMENT: | 26 October 2007 | |
CASE MAY BE CITED AS: | Rosselli v Rosselli (Executrix of the will of Remo Rosselli) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 414 | |
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PARTNERSHIP – Generally – Existence of Partnership – ss 5, 24, 25 Partnership Act 1958 – Nature and Extent of Partnership – Partnership Property – Joint Account – Whether joint account for partnership purposes – Equity – Resulting Trust – Whether a beneficial interest in property arising from a trust - Equitable contribution – Occupation fee offsetting mortgage, rates and insurance payments – Evidence – Lack of documentary material.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Sparke | Serafini & Hill |
| For the Defendant | Mr J Evans | Russell Kennedy |
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TABLE OF CONTENTS
Introduction......................................................................................................................................... 2
The issues............................................................................................................................................ 3
Factual background........................................................................................................................... 5
Problems with the evidence............................................................................................................. 7
Witnesses............................................................................................................................................. 9
The evidence of Romolo Rosselli................................................................................................. 11
What was the nature of the relationship between Remo and Romolo?................................ 15
Was there a Partnership between Romolo and Remo 16
What was the Nature of the Partnership Business 19
The funds available to the brothers and the use of the joint account.................................... 25
The various property purchases.................................................................................................... 29
The Alexandra property.................................................................................................................. 31
The Tooborac property................................................................................................................... 34
The Kilmore Property...................................................................................................................... 36
The Kilmore payments.................................................................................................................... 41
Pullicino's wages 44
Maintenance and repairs/stock 44
Mortgages, insurances and rates 45
Remaining issues............................................................................................................................. 47
Summary of my conclusions.......................................................................................................... 48
Orders................................................................................................................................................. 49
Afterword........................................................................................................................................... 49
HIS HONOUR:
Introduction
The plaintiff Romolo Rosselli (whom I will refer to as Romolo), his brother Remo (whom I will refer to as Remo) and sister Ada came to Australia in the early 1960s from Calabria in Italy.
The two brothers, Remo and Romolo, worked in Victoria for many years and were involved in several businesses. From time to time properties were bought and sold. After Remo’s death in December 2002 a significant falling out occurred between Remo’s family and Romolo. That falling out now requires this Court to rake over the coals of what was a close relationship between the two brothers for 35 years or so.
Although the writ issued by Romolo against the defendant Fiona Roma Rosselli, as executrix of Remo’s will, initially alleged many and varied failings on the part of Remo as a business partner, by the time the matter came on for hearing, the issues had narrowed somewhat.
At trial Romolo identified five particular ventures which, he asserted, required the intervention of this Court. In chronological order they were as follows:
(a)The purchase of a property at Alexandra in 1974 (the “Alexandra property”).
(b)The purchase of land and the operation of a business at Strongs Road, Thomastown (“the Thomastown premises”) in 1984 upon which a mechanical repairs shop and general hardware store was operated (the “Thomastown business”).
(c)The purchase of a farmlet at Tooborac in 1988 (the “Tooborac property”) which was also the subject of a counterclaim by the Estate.
(d)The purchase of a service station at Elmore in 1994 (“the Elmore service station”). This claim was abandoned at the conclusion of the evidence.
(e)The purchase in 2001 of a farming property on the Northern Highway at Kilmore (“the Kilmore property”).
In addition Romolo sought repayment of moneys spent by him or obligations incurred by him in respect of outgoings for the Kilmore property (“the Kilmore payments”).
The parties’ claims were so diametrically opposed that on the pleadings and the opening addresses agreement could not even be reached as to whether a partnership existed between the two brothers who had worked closely together for over 30 years.
The issues
Essentially, Romolo’s claim was couched as follows:
(a) that there was a partnership between Romolo and Remo that embraced all financial dealings[1] entered into since they commenced the business of running a small garage in the late 1960s and therefore the partnership had an entitlement in respect of the property ventures and that he as a partner was entitled to his share[2]; and/or
[1]T814.
[2]s 24 Partnership Act.
(b) that funds belonging to the partnership of Remo and Romolo (howsoever it was characterised) had been used to finance the property ventures and therefore he was entitled to reimbursement for the use of his share of those funds[3]; in those circumstances it was also asserted that he had a beneficial interest in these properties by reason of a resulting trust or a constructive trust[4] in favour of the partnership;
(c) that in relation to the Kilmore property there was a resulting trust in his favour created by reason of unequal contributions to the purchase price paid by himself and Remo;
(d) that in relation to the Kilmore payments Romolo asserted that a right to equitable contribution arose in his favour in respect of payments made by him before and after Remo’s death (particularly in respect of the vendor’s mortgage and council rates).
[3]s 25 Partnership Act.
[4]Although the pleadings alleged both resulting trusts and constructive trusts, ultimately the plaintiff’s counsel did not press a finding of a constructive trust.
On the Estate’s part there was initially a basic denial that at any relevant time there was ever a partnership.[5] Rather it was said that Remo ran the business by himself, managed the ventures, purchases and sales by himself and that Romolo was simply an employee of the business. The Estate denied the use of partnership funds for any of the ventures. The Estate also pursued a counterclaim in respect of a property at Tooborac, asserting that the legal owners, Stephen (Remo’s son) and Romolo, held it in trust for Remo. It also denied that Remo had any beneficial interest over and above the legal title to Kilmore. In respect of the Kilmore payments, it asserted that Romolo’s occupancy and use of the property balanced out any right to equitable entitlement as well as pointing to payments authorised by Remo prior to his death as satisfying entitlements to money spent on stock and the property itself.
[5]Para 2 Defence and Counterclaim. The pleadings denied the existence of a partnership in any form and this was not resiled from in the Defendant’s opening.
Central to much of the contest was determination of the existence of the partnership, identification of its true nature and the use of a joint cheque account (“the joint account”) operated in both names either with the National Bank of Australia (the “NBA”) or its successor the National Australia Bank (“NAB”) or subsequently with the Commonwealth Bank. In particular the issue was whether this was a true partnership account or merely an account used by the brothers to pay odd expenses in the context of a large number of cash transactions by both brothers.
In respect of each of the purchases or ventures, a crucial determination is:
(a) whether the particular venture was part of the partnership business or a sole venture of Remo’s; and
(b) whether any and if so what use had been made of partnership funds in financing the particular venture.
Factual background
In 1961 Remo immigrated to Australia from Calabria and lived with his sister in Maribyrnong. He obtained work with Morgan Drainage and worked full-time in that job. In 1964 Romolo, his older brother, immigrated to Australia and also lived at Maribyrnong with their sister.
On 6 February 1964, Romolo and Remo purchased in their joint names a residential property at 55 Hammond Street, Thornbury (“the Thornbury house”). [6]
[6]Exhibit P1.
Both brothers married. On 20 April 1968 Remo married Elaine and they commenced living at the Thornbury house. Romolo moved back with his sister, Ada. In 1969 Romolo married Italia and went to live with her at 114 Hughes Parade, Reservoir (“the Hughes Parade house”). On 4 February 1975, Romolo transferred his interest in the Thornbury house to Remo. [7]
[7]Exhibit P1.
At some time in the late 1960s or early 1970s, a garage and motor mechanic business was operated by “R and R Rosselli Proprietors” from St Georges Road in North Fitzroy and then at High Street, Kew. That business operated until 1976 when the brothers moved to premises at 54 Plateau Road, Reservoir and operated a motor mechanic business in the name of “RTR Motors”. [8] The business relocated in 1984 to the Thomastown premises. It continued to operate until shortly prior to Remo’s death in September 2002. The business also manufactured and repaired trailers.
[8]Exhibit P28.
In 1985 Remo separated from Elaine and he commenced to live at the Thomastown premises. In 1995 Romolo separated from Italia and he also went to live with Remo at the Thomastown premises.[9] There they resided together until Remo became acutely unwell during 2002 and died on 11 September 2002.
[9]T285.
Each of the brothers (and there is a major dispute about the actual involvement of both) were involved in other property transactions between 1974 and 2001.
In January 1974 “Remolo Rosselli” jointly with a Jim Murray purchased the Alexandra property. It was later subdivided and sold after two relocated houses were placed upon it. Three small blocks remained. On the 8th of May 1981 Murray transferred his interest in those blocks to “Remo” who was correctly described in the Transfer. Remo thus became the sole registered proprietor of the remaining Alexandra blocks.[10]
[10]Exhibit P4.
Jim Murray apparently introduced Remo to the world of rural markets and the business of the buying and selling of scrap metal. From the early to mid 1970s Remo was conducting a business at the Mernda Market which later expanded to other markets throughout outer suburban and rural Victoria.
On 10 January 1984 Remo and Romolo became the registered proprietors as tenants in common of the Thomastown premises which was used to operate the business of RTR Motors.[11]
[11]Exhibit P5.
By a contract of sale[12] in March 1988 Romolo and Stephen Rosselli (Remo’s son) purchased the Tooborac property. It was used to run a small number of cattle and sheep.[13]
[12]Exhibits P7, P8 and T59.
[13]T63.
In September 1994 Remo’s son Stephen and daughter-in-law Tiffany purchased the Elmore service station and roadhouse.[14]
[14]Exhibit P35.
On 8 January 1998 Romolo became the registered proprietor of a property at Edgars Road purchased for $82,250 (“the Edgars Road house”). This was the subject of a mortgage to the Commonwealth Bank. On 29 March 2000 the property was transferred for a sale price of $185,000. The mortgage of $55,600 was discharged.[15]
[15]Exhibit P11.
On 12 April 2001, Remo and Romolo purchased the Kilmore property known as “Glenellen” on the Northern Highway for $290,000 as tenants in common. A $29,000 deposit was paid, subsequently $185,695 was paid by the purchasers on settlement with $90,000 left in by the vendors in the form of vendor finance secured by a mortgage.[16] At times the brothers lived in a house located on the property as well as at the Thomastown premises.
[16]Exhibit P13.
In 1993, Remo fell ill with prostate cancer.[17] Up until then he was in good health and able to carry out most of the activities associated with the business. He made a reasonable recovery from that illness and was able to carry on most of his usual activities. In August 2001[18] he was diagnosed with secondary bone cancer and, although he battled on, for the last 10 months of his life he suffered increasing
ill-health. Over the last couple of months, he was hospitalised, spent some time at the Kilmore property and at times was cared for by his estranged wife, Elaine. Remo died on 11 September 2002.[17]T418.
[18]T613.
Problems with the evidence
Determining the outcome of this case has not been an easy task for a number of reasons.
First, as I set out subsequently, the evidence of the one person alive who knew exactly what was going on in the business conducted by the brothers was totally unreliable. Romolo was an untruthful witness and I am forced, with only a couple of exceptions, to put his evidence to one side.
Second, what became abundantly clear during the course of the case was that the business, howsoever categorised, operated with large amounts of cash and little paperwork. On the basis of the evidence of a Mr Willis (“Willis”) and a Mr Pullicino (“Pullicino”) I have little doubt that the taxation returns filed by the partnership and by Remo and Romolo personally, significantly understated the partnership income and their own incomes. This makes it all the more difficult to determine the true nature of the partnership and the source of partnership and individual funds.
Third, apart from Romolo, the one other person who could have shed considerable light on the financial affairs of the brothers was their accountant, John Herron. Although there was some evidence from Mr Turner, an accountant, that Mr Herron appeared to have some memory problems, neither party led any further evidence on this score. Mr Herron was not called, nor was any medical practitioner called, to explain why it was that he could not give evidence which one would have thought was highly relevant to the disposition of the claim.
Fourth, and this compounds the first three problems, is the lack of any satisfactory documentary evidence. The only bank records produced related to 2001 and thereafter. The only receipt books were ten single page receipts written between 1988 and 1994. Only four partnership tax returns (between 1997 and 2000) were produced with no accompanying financial statements. Source documents have either been destroyed or deliberately withheld.
Fifth, there is the problem with the recollection of conversations which took place 20 or 30 years prior to the witness giving evidence. This is particularly so when each party wished to emphasise references to words such as “ours” or “mine” within a conversation. Generally, unless the conversation is one of sufficient importance to warrant it, I have given little weight to such evidence as the mists of time, in my view, make such evidence highly unreliable. This is particularly so when the purpose of leading such evidence is to set aside the legal title to particular pieces of property.[19]
[19]Birmingham v Renfrew (1937) 57 CLR 666 at 681-682.
Finally, there is the evidentiary problem created by Remo’s death. The one person who could have been expected to contradict Romolo’s assertions is Remo. His death makes it all the more critical that I examine carefully the evidence surrounding Romolo’s assertions.
These matters are relevant to the onus borne by both parties (Romolo on the claim and the Estate of Remo on the counterclaim) in proving their respective claims.
Witnesses
I will return to the analysis of the claims made by each party in respect of the particular properties later. I turn now to the plaintiff’s witnesses who gave evidence.
(a) The primary witness in the case was Romolo Rosselli who, it would have been hoped, could provide credible evidence as to the relationship between himself and his brother in the period of 35 years during which they worked together and for a shorter but significant time lived together. For reasons which I will set out shortly, Romolo Rosselli was not a credible witness and, absent corroboration or independent evidence, I do not accept the evidence given by him.
(b) Pullicino worked for over 20 years with Romolo and Remo and, according to Pullicino, was described by the brothers as our “little brother”. Pullicino gave evidence as to a $50,000 payment by Remo from partnership funds to finance the purchase of the Elmore Service Station; this was colourful but completely false.[20] He also gave extraordinary and unsatisfactory evidence about his entitlement to $5,000 as a result of his labours at the Kilmore property. This, I conclude, was caused by his desire to assist Romolo in whatever way he could. I regard his evidence as unreliable. However I accept some of his evidence, particularly as to the tasks carried out by Romolo at Tooborac and Romolo’s limited involvement in the markets.
[20]T361 - Subsequent evidence from Stephen (T545-550) with accompanying documentation demonstrated that the purchase was bank financed and $50,000 was never required nor utilised. This was accepted in plaintiff’s counsel’s final address – T830.
(c) Frank Rosselli, Romolo’s son who, owing to absences overseas, gave a necessarily brief version of the relationship between Romolo and Remo. Generally I think that he was a credible witness.
(d) Geoffrey Turner, public accountant who gave evidence of short compass as to the accountancy arrangements of Remo and Romolo.
(e) Margaret Lobeticki, an employee of the Commonwealth Bank who gave evidence concerning a letter dealing with term deposits held by Remo and Romolo with the Commonwealth.
(f) Geoffrey Willis, retired, who gave evidence as to the business arrangements of Remo and Romolo since 1985 and particularly activities at markets. I accept what he told me of the market venture. However, I thought he was partisan to Romolo, especially when cross-examined, and parts of his evidence were clearly based on hearsay.
The Estate called evidence. In the main I thought that the Estate’s witnesses, all members of Remo’s family, at times might have downplayed Romolo’s role a little. However, subject to this one minor qualification, I regard all of them as generally truthful. Those witnesses were:
(a) The executrix, Fiona Rosselli, the daughter of Remo. She gave evidence as to the relationship between Romolo and Remo and their involvement at the various properties and at the Thomastown premises.
(b) Stephen Rosselli, the son of Remo who, for a period after his father’s first illness, worked with him. He also gave evidence as to the purchase of the Elmore service station as well as the general arrangements between Romolo and Remo.
(c) Elaine Rosselli, the widow of Remo. I regarded her evidence as highly relevant in the disposition of this case. She was estranged from Remo but was the one witness, apart from Romolo, who could give a contemporaneous account of the brothers’ activities from the early 1960s onwards.
(d) Melissa Sullivan, Remo’s daughter, who also gave evidence as to the relationship of Romolo and Remo.
The evidence of Romolo Rosselli
Romolo gave evidence over five days. To put it simply he was totally unsatisfactory as a witness and to a large extent unbelievable. He clearly lied on a number of occasions.
Mr Evans, who appeared for Romolo, correctly cautioned me about being too hasty in passing judgment upon Romolo’s credibility. He asked me to take into account Romolo’s education (to grade 5), the fact that English was not Romolo’s native tongue (his evidence was given through an interpreter) and that he was, in many respects, unsophisticated. I accept that these matters need to be taken into account. However there is a point where patent mendacity in the interest of furthering one’s cause has to be recognised. I think this was the case with Romolo.
Romolo’s evidence was coloured by a tendency to say only what he thought might assist his case. He was shifty, evasive and non-responsive to any questions that might be adverse to his case. When in doubt on issues he should have known about he regularly returned to “I can’t remember” or “I don’t know”.[21] His evidence was a patchwork of inconsistencies and untruths. I identify the following matters which illustrate this:
[21]e.g. T56/57, T64, T100, T131.
·His evidence concerning both his sources of income and a number of credit entries within his own bank account after the death of his brother, was false. Having originally told the Court that he had been “unable to work” owing to illness after the death of his brother (indeed he swore that he had no source of income between 2001 and 2006)[22], it emerged, albeit incrementally, that he had for the past four years operated a stall regularly at the Mernda Market as well as earned a commission from the market owners.[23] Indeed he last worked there on the Monday prior to the trial!
[22]T111-T113.
[23]T367; T370-371.
·His inability to remember many things even to the point of identifying his dead brother’s signature[24] – with whom he had worked and at times lived with over the 35 years preceding his brother’s death.
[24]e.g. T65, T133.
·His evidence regarding his arrival in Australia with the equivalent of $2,500 in cash in Italian lire. This had not been mentioned when he gave evidence-in-chief[25] and emerged in cross-examination, I think, to justify some form of claim upon the Thornbury house which was purchased in February 1964. He told me that he brought $2,500 in cash in 100 lire notes.[26] I put to one side his evidence that he converted the lire into dollars in 1964. On one view of his evidence, he was not even in Australia at that time. Even allowing for the alternative version, he had only been in Australia for a couple of weeks prior to the purchase of the property, the title of which was registered in February 1964. It was not entirely clear to me what amount he ultimately asserted had been paid for the property by his brother, who had been in Australia for three years and had worked continuously throughout.
·His evidence as to the purchase of the Edgars Road house in his own name in 1988. He originally said that he had received the money from his mother.[27] When the hearing resumed on the next sitting day he was asked by his counsel to “clarify” that answer.[28] He asserted that, in fact, a property that he owned and which had been purchased by his mother for him when he was 14, was sold in Italy and the money was transferred to him. When I asked how the transfer was effected, he told me that he entered into a cash arrangement with a person who was returning permanently to Italy and that he received the money ($85,000) in cash in Australia[29] without any receipts or documentation. Although Mr Evans asserted that his account received corroboration from Willis and Pullicino[30], I am not satisfied that this was the case. The only source of such information was Romolo, who was patently unreliable, and the two witnesses’ versions did not necessarily sit comfortably together. I regard Romolo’s evidence as incredible and false.
·There was another aspect about his evidence concerning the Edgars Road house. He asserted that he had purchased it without any finance[31] and that the whole of the proceeds from its sale were directed towards the purchase of the Kilmore property. This version is inconsistent with the Titles Office records, which indicate that the property was purchased in his name and a mortgage in favour of the Commonwealth Bank registered; upon the sale of the property and its entry into the Register the mortgage of $55,000 was discharged.[32]
·His evidence concerning the manner in which Remo and he managed a variety of market enterprises was inherently contradictory. At one point he accepted that Remo ran markets by himself at Mernda, Maribyrnong, Shepparton, Dandenong and Coburg, and only for short periods did he have any involvement in the markets.[33] Later on in his cross-examination he contended that he, in effect, had a significant involvement in each of the markets, giving the impression that he was now asserting that the markets were in effect a joint enterprise between the two.[34] Not only was there this inconsistency, but any documentation indicated that, at least insofar as Mernda was concerned, it was solely operated by Remo.[35] Moreover the overwhelming thrust of the evidence from all the other witnesses was that Remo was not only the driving force of the market and allied ventures but played the predominant role in terms of buying and selling. Later again, he told me that Remo only went to the markets on weekends, within seconds he (endeavouring to minimize Remo’s involvement) recanted accepting that both Mernda and Dandenong were held during the week.[36]
·He told the Court that some of the credit entries in his own bank account were related to income from the market but others were the result of loans to him from his cousin ($1,000 and $3,000). He needed such loans, he asserted, in effect for “a rainy day” albeit that his account was in credit over $119,000.[37]
I regarded that suggestion also as totally unbelievable.·He denied ever filing individual tax returns.[38] Several were subsequently produced.[39]
·His evidence as to what happened to what were highly relevant documents concerning the operation of RTR Motors (viz bank statements, cheque books and other source material) was also unbelievable. Despite the fact that once Remo became an invalid in the terminal stages of his illness, leaving Romolo as the one person with control over the business and its contents at the Thomastown premises,[40] Romolo could not account for the fact that the contents of filing cabinets and a number of boxes[41] of such records relating to the business had gone missing.[42] On one view two boxes simply disappeared and it was difficult to determine what had happened to the contents of the other two.[43] There was an uncorroborated suggestion of a break-in at the Thomastown premises shortly prior to Remo’s death but Romolo “couldn’t remember” if anything was taken.[44]
·Remo died on 11 September 2002. In the correspondence between Romolo’s solicitors and the Estate’s solicitors for the first five months of 2003, there was no mention of any claim by Romolo to an interest in the Alexandra property or a greater interest in the Kilmore property other than that reflected by the title. Ultimately, Romolo, by his original writ, called into question virtually every property transaction that the brothers, either individually or together, had been involved in. The Elmore Service Station is an example. He was prepared to assert that partnership funds had been used in its purchase, without any proper foundation for such a claim, until it was shown demonstrably that there was no such evidence and that Stephen had borrowed the money himself.[45]
[25]He originally said that he left his money with his mother when he came to Australia - T30-T31.
[26]T125, T254, T255.
[27]T70.
[28]T97-99.
[29]T98, T252-253.
[30]T343-344; T388.
[31]T70.
[32]Exhibit P11.
[33]T138.
[34]T224.
[35]e.g. Exhibit D2.
[36]T224.
[37]T65.
[38]T113-115.
[39]T65, T239, Exhibit D5.
[40]T104.
[41]T638-640; T443-450.
[42]T106 and T110.
[43]Perhaps they ended up at Tooborac: T443-446 and 478-480.
[44]T105-T106.
[45]Exhibit P35, D12, D13, D14.
In summary, Romolo was a patently untruthful witness whose evidence is of virtually no probative value.
What was the nature of the relationship between Remo and Romolo?
No express agreement was ever entered into by Remo or Romolo. The task of the court, therefore, is that set out in Higgins and Fletcher “The Law of Partnership in Australia and New Zealand”[46]:
“Whether, in the absence of an express agreement, a partnership contract can be inferred from the conduct of the parties is purely a question of fact depending upon the joint and not the individual intention of the parties. The intention is not to be determined by an examination of the private intention of each party but is to be ascertained by inference from their conduct and actions, throughout the whole course of their dealings with each other.”[47]
[46]6th Edition p.93.
[47]See Bryant Bros v Thiele [1923] SASR 393 at 401.
In this case I am required not only to determine whether a partnership existed but, if such a partnership did exist, what was the business that was carried on “in common with a view of profit”.[48]
[48]s 5 Partnership Act.
In the context of this case, the following matters are relevant to determining both the existence of a partnership and the nature and extent of the partnership business.
· Whether the parties were involved in a commercial enterprise with a view to profit.[49]
[49]Canny Gabriel Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 at 326.
· Whether there was a sharing of profits.[50]
[50]Partnership Act s 6(3)
· Whether the parties held themselves out to the public as operating in partnership.
· Whether the parties filed partnership tax returns.
· Whether the individual tax returns disclosed income from the partnership.
· Whether the parties maintained a joint account and, if so, was it used exclusively for the business.
· Whether the parties received a share of the profits of the business.
Was there a Partnership between Romolo and Remo
Romolo asserts that the partnership subsisted for 35 years. Initially the Estate’s response was that Romolo was solely to be regarded as an employee of Remo. This was premised upon evidence given by Stephen Rosselli, Remo’s son, that in 1993, when working at the Thomastown factory whilst his father was recovering from his first bout of prostate cancer, Stephen Rosselli observed that Romolo was paid a weekly amount which his father referred to as “wages”.[51]
[51]T510.
By the time of final addresses the Estate’s approach had somewhat changed and I think it was accepted (tacitly at least) that a partnership between the brothers may have existed but of a particularly limited nature extending only to car repairs and to the manufacture and repair of trailers.
All the evidence pointed to the two brothers having a close and harmonious relationship. Not only did they work together day in day out, for at least the last six years they lived together at either the Thomastown premises or the Kilmore property.
It is clear that Remo administered the business and conducted most of the dealings with third parties including customers. I reject Romolo’s evidence[52] that he played a significant part in the administration or dealings with customers. The thrust of the evidence of Messrs Willis, Pullicino and Remo Rosselli’s family was to the effect that Remo was the administrator of the business and the driving force behind it. This does not, of course, relegate Romolo to the role of employee but demonstrates that each had different tasks within the business.
[52]T57, T65, T89, T110, T111, T138.
I have already commented upon the lack of documentary evidence concerning the brothers’ relationship. However the meagre documentation which was produced pointed squarely to the existence of a partnership.
First, there are the “R & R Rosselli props” - receipt books from the St Georges Road business,[53] - the BP Ensign Service Station.
[53]Ex P2
Second, there are the tax returns of the partnership of Remo and Romolo Rosselli for the financial years June 1997, June 1998, June 1999 and June 2000 which were tendered as were several individual tax returns.[54] The partnership tax returns identified a partnership between the two brothers describing the main business activity operating as “car repairs/dealer”. The returns demonstrated a level of income and distribution to the brothers favouring Romolo rather than Remo. Whilst I accept that there was no evidence that these returns had been filed with the Australian Tax Office, the partnership returns tallied with the individual tax returns which were tendered and were clearly prepared under the hand of John Heron whom, it was unanimously agreed, had been the accountant for the brothers for many years.
[54]Ex P9
Absent any evidence which suggests that the tax returns were not accurate or had in some way been amended, or not filed, I am prepared to accept, at least as to the fact of the existence of a partnership, their veracity.
Third, Remo’s individual tax return tendered disclosed income from the partnership consistent with the partnership return. Indeed this was the sole disclosed source of income. Romolo’s equivalent returns were not produced.
Fourth, the mechanical repairs aspect of the business operated under the name of RTR Motors both at Reservoir and at the Thomastown premises[55] was a continuation, I find, of the R & R Rosselli business.
[55]T496.
Fifth, even if the business was confined to that of running a garage and carrying out repairs to motor vehicles or trailers with some trailer manufacturing as well, this was necessarily a commercial enterprise in which both parties, it can be readily inferred, had a view to making a profit.
Sixth, the evidence of Stephen Rosselli as to “wages” is by no means persuasive. He worked for a short time in the business and saw Romolo issued at the end of each week with $350. This could just as easily have been drawings. Indeed, he relied upon his father’s description of such payments and stated: “Yes I never saw him give him his wages or say there’s your wages, definitely not”.[56] I regard his evidence as equivocal.
[56]T511.
Finally, there is the very nature of the relationship and the commercial enterprise entered into by the two brothers. They started their business life together running the service station as a joint commercial enterprise. That core business later expanded to motor vehicle repairs and trailer manufacturing and repairs until Remo’s death, albeit with a decreasing number of clients. All the witnesses gave evidence of the operation of that business. Nothing, apart from the evidence of Stephen Rosselli, points away from the existence of a partnership at least in relation to the mechanical repairs and fabrication and repairs of trailers.
Therefore there is sufficient evidence, independent of Romolo, which enables me to accept the proposition that he and his brother were engaged in a partnership in the early 1960s and that the partnership continued to the time of Remo’s death.
I have not ignored the fact that when RTR Motors was registered as a business name, it was registered only in the name of Remo Rosselli.[57] I think that this was probably an oversight as the business in North Fitzroy and Kew had been run as a partnership and the only tax returns produced subsequently were those which identified the business as running as a partnership.
[57]Exhibit P28.
In my view the real conundrum is determining whether the nature of the partnership business, or the commercial enterprise, changed to include a variety of non-mechanical repair ventures or whether these were sole ventures pursued by Remo alone.
What was the Nature of the Partnership Business
Identification of the partnership business and its true nature and extent is a key issue in this case. I have already concluded that the garage/mechanical repairs business was the subject of a partnership between Romolo and Remo commencing in the mid 1960s and subsisting up until the time of Remo’s death. However, there are two other ventures which may or may not fall within the business of the partnership, namely, (a) the buying and selling of properties; and/or (b) the buying and selling of scrap metal, hardware sales at markets and auctions and buying and selling at clearance sales throughout Victoria.
The starting point in determining whether the partnership business was wider than just the mechanical repair business is the pleadings. When the Statement of Claim was issued, in December 2004, the partnership business was identified as follows: “The partnership conducted various petrol station/motor vehicle repairers businesses under the business name, R & R Rosselli”.[58] On the last day of the trial Mr Evans, for Romolo, amended the Statement of Claim to describe the partnership business as follows: “It was agreed they would carry on business together in partnership in various petrol station and/or motor vehicle repairers businesses and a business of buying and selling goods at markets and other places under the business name of R & R Rosselli”.
[58]Para 4 original Statement of Claim.
I have already noted that Mr Evans had asserted that the long-term relationship or partnership covered all the business and property dealings of Romolo and Remo Rosselli.
I think it is also significant, as Ms Sparke, who appeared for the Estate, pointed out in her closing address, that Romolo, in his evidence-in-chief, made no mention of being a partner in a wide range of other activities engaged in by Remo, including operating stalls at various markets throughout Victoria, buying and selling items at clearance sales and auctions throughout Victoria and selling hardware goods from the Thomastown factory. It was only when cross-examined that he made such an assertion.[59]
[59]T134-138.
The description within the original Statement of Claim tallies in a broad sense with the evidence which points directly to a very limited business partnership between the two brothers. Ultimately, I have reached the conclusion that the claim by Romolo that all commercial activities were partnership activities was the result of sheer necessity – absent such a finding Romolo faced an almost impossible task of identifying which funds can properly be characterised as partnership funds (be they in cash or in the joint account) and which funds were those of Remo or for that matter, Romolo.
I regard the evidence of Elaine Rosselli as significant in determining this issue. She was the estranged wife of Remo; she had known Romolo since approximately 1967.[60] In respect of the manner in which the business relationship was carried out, I accept her evidence in preference to that of Romolo and any corroboration which Romolo might have received from Pullicino or Willis. In general I thought that she was a careful and truthful witness (in marked contrast to her brother-in-law). The salient parts of her evidence as to the operation of the business were as follows:
[60]T583-584.
· Romolo did perform motor mechanical repairs, but Remo ran the service stations both in terms of making decisions and dealing with people.[61]
[61]T585.
· Remo met Jim Evans who, in the late sixties, introduced him to buying and selling used or discarded goods.[62]
[62]T584.
· Generally Remo, by reason of his proficiency in English and administrative capacities, dealt with the public.[63]
[63]T585-586.
· Remo, by himself, commenced dealing in scrap and selling goods at markets in the early 1970s. He went to markets at Maribyrnong, Coburg, Dandenong and Mernda.[64] He did all the organisation, the dealing, the buying and the selling from the time it started up.[65]
[64]T588-589.
[65]T591.
· Remo alone was in charge of buying and selling the hardware goods.[66]
· Remo often kept cash in his pocket and paid for the operation of the business.[67]
· Remo was the prime mover at the stall that he was running at Mernda.[68]
[66]T595.
[67]T596.
[68]T589, 623.
Elaine Rosselli’s evidence in respect of the nature of the activities carried out by her husband as opposed to those carried out jointly by the brothers together was supported by Stephen Rosselli and the executrix, Fiona Rosselli. I accept their evidence on this issue.[69]
[69]T487-491; T497-504; T508-510.
Frank Rosselli, Romolo’s son, observed how both the Reservoir business operated as well as the Thomastown business until he left for America in 1992 at age 21. For approximately four months in 1997 he returned home. He told me that the work carried out at Reservoir and Thomastown was mechanic-type work involving repairs to vehicles.[70] He did not identify any other work carried out by the brothers.
[70]T291.
On this point I accept to a limited extent the evidence of Pullicino and Willis that Romolo from time to time would attend some of these markets. That, however, does not satisfy me that this was a partnership business. Far from it. Their evidence was that Remo was the driving force and that Romolo only attended occasionally and never attended the auctions or clearing sales held throughout Victoria.
Pullicino worked with the brothers from the mid 1980s. On his version, he was paid in cash $50 a day by either Remo or Romolo.
I have already indicated that I think much of his evidence cannot be relied upon. I reject his evidence that, in effect, the brothers were partners in everything they did.[71] I accept, however, his evidence that Romolo used to fix trailers and he would assist him in doing so. On those occasions, Remo had gone away shopping for stock. Romolo looked after the premises and fixed the trailers and did other mechanical jobs. Remo ran a hardware type business, selling drop shovels, drop handles, picks and the like.[72] This business operated from the Thomastown premises but, more significantly, operated from a variety of markets: Mernda, Dandenong, Coburg and Shepparton. Remo alone carried out these tasks – very occasionally Romolo may have gone to the markets.[73] It was Remo who purchased the items.[74] Romolo’s only involvement was on odd occasions.[75] At Mernda, in addition to running the stall selling the general hardware items, Remo was paid a commission for collecting money from the stallholders. This is consistent, in my view, with the true nature of the hardware business, the market ventures and the separate operation of the mechanical repairs business.
[71]T331.
[72]T335.
[73]T337 and T338.
[74]T352.
[75]T353.
Willis’ evidence to a large extent echoed that of Pullicino in regard to the involvement of Romolo. Willis had known Remo and Romolo (who, interestingly, he referred to as Romonov) since, it would seem, the late 1980s.[76] He had met the brothers at the Dandenong market, which had an auction every Tuesday. Remo had been in business at Dandenong prior to Willis becoming a vendor. He described Remo’s activities as follows: “Remo would go away to country auctions of a Saturday or Sundays or during the week, and buy goods, you know, that he could re-sell again”.[77] Only occasionally would Remo not come to the market and on those occasions Romolo came.[78]
[76]T378.
[77]T379.
[78]T380.
Willis described Romolo and Pullicino’s involvement in the following terms: “Well, Romonov and Martino used to make trailers, repair cars – do all odds – different jobs. Welding jobs would come in, anything”.[79]
[79]T381.
The thrust of Willis’ evidence was that Remo’s two principal businesses were the Mernda market on the Monday and the Dandenong auction on the Tuesday. During the week he would attend auctions or clearing sales and both buy and sell items. On the weekends Remo would attend the Dandenong market or country markets.
Ultimately, the evidence given by Willis and Pullicino as to involvement in the business tallies with that given by the other members of the Remo Rosselli family.[80] Each of them deposed to the markets, the clearance sales and the hardware goods enterprise essentially being Remo’s business alone.
[80]Fiona Rosselli – T424-425; Stephen Rosselli – T487-491.
I do not think that there is any significance in the reference to “dealers” in the partnership tax returns. The expression is vague and does not assist in endeavouring to determine what was the true nature of the business. Nor does the fact that the Thomastown premises was bought as tenants in common. This is consistent with the mechanical repairs and garage business being operated from the Thomastown property. It was set up for the mechanical repairs when the property was purchased.[81]
[81]T593.
In fact, the only other documentary evidence about the conduct of the market stalls and the buying and selling of goods all points to Remo alone being the proprietor. He held the second-hand dealer’s licence; Romolo did not have one.[82] In February 1992 Remo wrote a letter “as a concerned trader/dealer of the Mernda Market”. There was no suggestion of any involvement of Romolo.[83]
[82]T138.
[83]Exhibit D2.
It follows, I think, that Remo’s hardware business and market ventures were all to his benefit and his alone.
I turn now briefly to the question as to whether the various property purchases could be regarded as forming part of the partnership business at least at a general level. There is no evidence which supports the proposition that part of the partnership business was generally directed towards land purchases. It is not alleged in the pleadings and I reject the suggestion by Romolo that everything was done by the brothers as partners. The partnership assets as disclosed in the tax returns were relatively small and clearly did not include the properties at Tooborac or Alexandra or, for that matter, the Thomastown premises.
The nature of the property purchases made by each of the brothers does not point to a common goal of a partnership venture with the intention of making a profit. For instance, the Thornbury house property was bought prior to the business setting up.[84] The Alexandra property was purchased in 1974 in Remo’s name and prior to any involvement by Romolo. The Tooborac property was a joint tenancy which one would regard as inconsistent with a business type of asset. The Kilmore property, which was bought together as a home (after their marital break-ups), was purchased as tenants in common. The only property which could be regarded potentially as partnership property was the Thomastown premises. It has been sold and the proceeds distributed 50-50 consistent with their tenancy in common.
[84]The business commenced in or around 1965.
Other properties were purchased individually, such as Romolo’s purchase of the Edgars Road house and Remo’s purchase of a property at Banbury Avenue. The history of transactions does not evince an intention of the brothers to, in partnership, carry out the business of buying and selling property. This, of course, does not mean that a particular venture may not have been a specific partnership enterprise, although in the context of this case it renders it far less likely.
In my view the evidence only supports an inference that Romolo and Remo intended to engage in a garage and a mechanical repairs business as partners. No more. It was, as alleged in the original Statement of Claim, a business which carried out the operation of petrol stations and/or motor vehicle repairers businesses. That business probably extended to carrying out repairs on trailers and the manufacture of trailers at Strong Avenue. It did not however extend to the following activities:
(a) The buying and selling of hardware goods and/or scrap metal either at the Thomastown premises or at various markets throughout Victoria.
(b) The buying and selling of goods at clearance sales and auctions throughout Victoria.
(c) The buying and selling of real estate.
The funds available to the brothers and the use of the joint account
Central to determining the question of the use of partnership funds as well as the existence and extent of the partnership is the use to which the joint account was put.
Romolo asserted that after paying suppliers and employees “the rest went in the bank” and that “we put the money in there and when we needed it we would take some out”.[85]
[85]T38 and T40.
I squarely reject Romolo’s evidence as to the use of the account and regard it as patently false. It is abundantly clear that whether it was the partnership business or Remo’s own business, both Remo and Romolo operated with large sums of cash. This is best demonstrated by the following evidence given by Mr Willis:
“The proceeds from that after 22½% were taken out were all in cash?
---All in cash, yes.
At the end of any particular day there could be large sums, at least thousands and thousands and thousands of dollars?---Yes, a couple of thousand.
A couple of thousand. Was that generally the type of takings that would be involved as far as you could tell?---Yes. Sometimes it’d be a lot more than that but it would just depend on the days and the sundry items that they had, each vendor.”[86]
[86]T401.
He had earlier said, in answer to my question:
“Did they ever tell you at the end of the day what they’d taken? Say at Dandenong?---Sometimes many thousands of dollars.”
Pullicino was paid in cash.[87] All employees at the Thomastown premises were paid in cash.[88] Stephen said that Remo always had $5,000 in cash in his pocket and $1,000 in his wallet.[89]
[87]T332.
[88]T505.
[89]T507-509, T523, T574.
The individual tax returns filed by Remo borders, in my view, on the incredible. Despite Remo, during the 1990s, working effectively full-time on the market/hardware business as well as earning a commission at the Mernda market from the takings of the stallholders, it shows the following total income before tax[90]:
[90]Exhibit P31 – There were then some minor work-related deductions.
June 1997 $ 6,240
June 1998 $ 6,240
June 1999 $ 6,240
June 2000 $ 6,240
The sole source of Remo’s income was said to be partnership income.[91] I am unable to say what Romolo’s declared income was in that period as he failed to produce any tax returns apart from 2000/2001 and 2001/2002, however his distribution for the partnership in that period, according to the returns, was between $10,256 and $16,984 per annum.[92]
[91]Exhibit P9.
[92]Romolo had denied filing any tax returns.
Extraordinarily, particularly given the nature of the enterprise and Romolo’s and Pullicino’s evidence of the banking of the income, only a few cheque books and statements were produced.[93] Those cheques and bank statements indicated that the cheque account was used rarely and generally for non-business activities. For example, between July and December of 2001, 25 cheques were written, the bulk of which (if not all) were for private purposes. None, as far as I can determine, related to the purchase of stock in trade or the payment of business expenses (whatever the business might be). A similar pattern emerges for the preceding four months with only 11 cheques drawn – most if not all for non-commercial purposes.
[93]Exhibit P12, P14.
I think that the use of the joint account as an irregular method of payment for mainly personal expenses is consistent with my view that the vast majority of the business dealings, howsoever categorised, were carried out in cash. Stephen gave evidence that there was regular banking of the partnership income when he was working there in the early 1990s.[94] The only bank statements available[95] for 2001 indicate sporadic deposits from time to time. I took the view that Stephen was inclined to play down the use of cash in the business affairs and to suggest that the business had a degree of regularity about it. None of the documentary evidence supports such a conclusion.
[94]T527.
[95]Exhibit P12.
The use of cash is typified by the only receipt book which was tendered.[96] Invoice number 713 is dated 20 September 1990 and invoice number 716 is dated 3 February 1994. Whilst I accept that there might have been more than one receipt book in operation, the substantial gap sits conformably with the lack of documentation and the vast use of cash in the business.
[96]Exhibit P6
It is also relevant that the account used by Romolo and Remo – in their joint names – came into existence prior to them going into business together.[97] It was not set up as a partnership account and on Romolo’s own account was a place in which their savings were, from time to time, placed and withdrawn.
[97]T129-131.
Given Romolo’s unreliability and the absence of Remo, it is impossible to determine how the funds earned by either the partnership or by Remo (or for that matter Romolo) were allocated. The only thing that is clear is that both brothers used the joint account. It has not been established to my satisfaction that the joint account was in fact a partnership account associated with the garage/mechanical repairs business.
It follows from the above analysis that I can reach no conclusion whatsoever as to what may or may not have constituted partnership funds. The patent use of large sums of cash whether running the hardware business, the mechanical repairs business or financing property ventures (such as Romolo’s payment of $85,000 cash for Hughes Parade) leave me totally perplexed.
Accordingly, I make the following findings (or non-findings):
(a) I am not satisfied that the joint account was ever used as a partnership account. Indeed, I think the evidence (in the sense that there is much of probative value) all points the other way, i.e., that it was used incidentally for minor private expenses.
(b) I cannot reach any finding as to what, if any, amount of cash outside the joint account or moneys within the joint account may or may not have been partnership funds. To some extent this is the making of both Remo and Romolo. Having chosen to conduct much of their business affairs in “the black”, it is no surprise that when the Court is required to intervene, there is great difficulty in determining the true state of affairs.
I turn now to each of the individual claims made by Romolo and the Estate.
The various property purchases
It is convenient to set out some propositions relevant to the entitlements alleged in both the claim and the counterclaim – each of which depend to a large extent in establishing the use of partnership or personal funds to upset the legal title.
First, the legal ownership of the particular property accords with the registration of proprietorship on the title. To displace the title registration by establishing an equitable interest, the High Court in Trustee of Cummins v Cummins[98] noted:
“the disinclination of equity to intervene through the doctrines of resulting trusts to displace the incidents of the registered Title …”
and the need to demonstrate circumstances which would give rise to such a conclusion.[99] The question of onus is significant in this case, given the lack of documentary material and the unreliable nature of much of the oral evidence.
[98](2006) 80 ALJR 589 at para 73.
[99]The question of “a presumption in favour of resulting trust” is dealt with subsequently.
Second, for a resulting trust to arise, the following principle is to be applied:
“If two persons have contributed the purchase money in unequal shares, and the property is purchased in their joint names, there is, again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the portions in which they contributed the purchase money.”[100]
[100]Calverley v Green (1984) 155 CLR 242 at 246 – 247, cited with approval in Trustees of Cummins v Cummins (supra at para 55).
Third, a constructive trust arises in a different way to that of a resulting trust. A constructive trust is imposed by the court applying
“the general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them”.[101]
[101]Baumgartner v Baumgartner (1987) 164 CLR 137 at 147, restating the principle enunciated in Muschinski v Dodds (1985) 160 CLR 583.
Fourth, in approaching the question of whether a beneficial interest exists or existed in any of the properties, I have applied, with appropriate alterations, the question posed by the High Court in Trustee of Cummins v Cummins:
“What was there to conclude [at the time of the transactions] that the face of the register did not represent the full state of the ownership of [the particular properties] and that the ownership as joint tenants was at odds with, and subjected to, the beneficial ownership established by trust law?”[102]
[102]Para 57.
Finally, and this is a critical evidentiary matter in this case: where it is contended that a beneficial interest exists by reason of personal or partnership funds being utilised to purchase a particular property or properties with the consequence of creating a resulting trust, then there must be an underpinning finding of fact that such funds were personal or partnership funds (as the case may be) and were so used. The same goes for any claim based on the provisions of the Partnership Act.
It is also relevant to note the following propositions arising out of the Partnership Act.
First, the rules provided by s 5 of the Partnership Act establish that joint ownership of land or other property does not of itself create a partnership.
Second, for the purpose of establishing a beneficial interest by reason of s 24(2) of the Partnership Act it is necessary to prove that the property, although registered in the name of one partner, is truly the property of the partnership, i.e. in this case either by proving the partnership engaged in the buying and selling of either land generally or in respect of that particular piece of property.
Third, where partnership funds are utilised to buy property then that property is deemed to have been bought on behalf of the partnership.[103] Again the finding of fact as to the existence and use of partnership funds is critical.
[103]Partnership Act s 25.
The Alexandra property
In January 1974 Remo with Jim Murray purchased the property as tenants in common. On 8 May 1981, Romolo became the sole registered proprietor after Murray transferred his interest to Remo. The Estate remains the sole proprietor.
Romolo, however, asserts that this property was purchased with the use of partnership funds. He seeks a declaration that the Alexandra property was held on trust by Remo for the partnership of Romolo and Remo, and consequential orders for sale and distribution of proceeds. He also relies upon s 25 of the Partnership Act which would deem the property to be partnership property if partnership funds were used.[104]
[104]Written submissions of Romolo – para 37.
Howsoever the claim might be framed, as I have already noted, the starting point is for Romolo to establish that partnership funds were used in one or other of the purchases.
I am not satisfied that partnership funds were used for either purchase. I say so for the following reasons.
The primary piece of evidence in support of Romolo’s contention is the evidence of Romolo himself. He deposed that in 1974 the funds had been used from the joint account to pay for the property as an investment; for the erection of the two houses, their sale and then the placing of the sale proceeds in the joint account.[105] He said, as to the title registration: “They were in his name [Remo’s] but whenever he sold them, he would give me my half”.[106] He also said that the rates were paid out of the joint account by either him or Romolo signing a cheque.[107]
[105]T42 and T44.
[106]T46.
[107]T303.
I reject this evidence. Given my overall view as to Romolo’s credit and reliability, I think it is probably false. Moreover his evidence about the particular purchases was inconsistent and unreliable. In answer to a question about when he first knew of the existence of the properties, he replied “Jim Murray sold it to my brother and then I knew everything, because we had to give him the money to pay him”. This had to be 1981, not 1974 when he asserted that the funds were first utilised.[108] Also there was the evidence which showed that the 1974 purchase was in the sum of $5,200, presumably paid half and half by Murray and Remo. Romolo asserted that this purchase by Remo utilised partnership funds. However, his evidence that the sum involved was $4,500 was patently wrong.[109] Indeed subsequently, he described the price as being $15,000.[110]
[108]The original pleadings all referred to 1981 not 1974.
[109]T43.
[110]T269, 301.
I accept the evidence of Elaine Rosselli, who was the one person called at the trial apart from Romolo who had contemporaneous knowledge of what transpired in relation to the Alexandra property. She was familiar with what her husband was doing and with the actual sub-division. She stated[111], in effect, that there was never any suggestion to her by her husband that Romolo had any involvement in respect of the Alexandra property, nor was she aware of such involvement.
[111]T601.
Interestingly, in the late 1970s Remo became involved in litigation in this Court concerning the Alexandra property[112], which was subsequently settled by the payment of money by Remo. Romolo, who asserted that he had a keen interest in the development of the property, knew absolutely nothing about it.[113] Further, Remo swore an affidavit on 22 June 1979 in which he asserted that he alone and Murray purchased the property – there is no mention of Romolo.
[112]Exhibit D9.
[113]T274 - 275.
The Supreme Court litigation and its settlement was relied upon by Mr Evans for Romolo as, in some way, corroborating Romolo’s account that Murray’s share was purchased for $15,000. True it is that by reason of the settlement Murray relinquished any interest in the property.[114] However, this settlement appears to have been effected in mid 1979 and the transfer registered in 1981. The fact that the settlement sum may be close to the estimate that Romolo placed upon the amount paid seems to me to be neither here nor there. Even if one accepted that Romolo’s evidence as to the payment of $15,000 was correct, that, in my view, does not advance his case. It does not mean that Romolo’s funds were used to purchase the property, nor does it mean that the partnership’s funds were used to purchase the property. It simply means that Romolo knew of the purchase price.
[114]Exhibit P34 – an unexecuted release which was admitted in the defendant’s defence.
I have already rejected the proposition that the joint account ought to be regarded as a partnership account. There is no evidence as to the source of the funds used for either purchase. It is impossible to conclude where the funds may have come from, particularly given that Remo was, during the 1970s and 1980s, operating his own market and hardware business with a separate source of income.
I cannot identify any other credible evidence which would support the contention that either partnership funds or Romolo’s money were used in the purchase of the Alexandra property. Self-serving statements to Pullicino[115] or Willis[116] are of little assistance, nor is the reference to “our property”, nor are statements which patently have a hearsay source. There is no documentary material of any sort which indicates contribution to the purchase price by the partnership. Absent such evidence, there is no reason to disturb the legal title.
[115]T340-341.
[116]T385.
Given my conclusion, it is not necessary to deal with the Estate’s defence of Laches based upon the delay by Romolo in asserting any equitable claim in relation to the Alexandra property.
I conclude, therefore, that Romolo has no entitlement either under the Partnership Act or any beneficial interest in the Alexandra property. I dismiss his claim in respect of the Alexandra property.
The Tooborac property
This property was owned by Romolo and Stephen as joint proprietors until it was sold in July 2003 for $101,580.16. Romolo seeks payment of half of proceeds held in trust by Messrs Cain & Lamers, solicitors. The Estate, by its counterclaim, asserts that the property was held in trust solely for Remo.
The Estate’s contention was put as follows:
“The inference to be drawn relating to Tooborac is that it was purchased either from cash or from the account (thus being largely Remo’s money). Any presumptions which arise from the title and the source of the funds are rebutted by the registration in joint names and Remo’s control (with Romolo’s acquiescence) of sale, so that the intention behind the purchase was to acquire an asset for himself but registered in other names”.[117]
[117]Defendant’s written submissions – para 91.
Curiously, this proposition reverses the role of the parties (cf Alexandra) as the Estate here asserts that there is evidence which should satisfy me that Remo had the sole beneficial interest in the property and the legal title should be disturbed.
On Romolo’s behalf it is contended that there are only two possible conclusions in relation to ownership of Tooborac. One is simply that the beneficial title follows the legal title. The second is that the registered proprietors (Stephen and Romolo) held the property on trust – a resulting trust – in favour of Romolo and Remo, who contributed the purchase price. Either way, Romolo is entitled to half the proceeds of the Tooborac property.[118]
[118]Plaintiff’s written submissions – paras 26 and 27.
In my view, there is no good reason to disturb the registered title. Simply put, there is no evidence to support the contention that Remo had any beneficial interest which would oust the title which recorded Romolo as a joint proprietor. There is no evidence to suggest that Remo contributed any more or any less than Romolo. Indeed, the evidence all points to Remo’s intention being to have Romolo and Stephen share the property.
Romolo and Stephen Rosselli were registered as the joint proprietors in 1988.[119] The trust account receipt for the deposit was in the names of R & R Rosselli.[120] The Contract of Sale was between the vendor and the purchasers “Romolo Rosselli and Stephen Rosselli” dated 7 March 1988.[121]
[119]This was admitted in paragraph 22B of the defence and counterclaim.
[120]Exhibit P8.
[121]Exhibit P8.
One aspect of the evidence of Romolo which I accept, corroborated by Frank Rosselli and Pullicino, whom I also accept on this aspect, was of his involvement with the Tooborac property. I accept that he spent considerable time at the property consistent with his legal ownership. I accept his evidence that he performed jobs on the property cleaning it up and erecting a shed and yards. I also give some weight to Frank Rosselli’s evidence that in the presence of Romolo and Frank, Remo described the property as “our property”. By this, I think he meant “our family” in the sense of Stephen (perhaps as Remo’s surrogate) and Romolo. It supports rather than detracts from the notion that the legal title reflected the true beneficial interest.
Moreover, this is an instance where there is evidence other than that of Romolo that can be relied upon. Stephen Rosselli’s evidence which I accept on this issue directly negates the suggestion that Remo was the beneficial owner. He gave evidence that his father, Remo, told him that the Tooborac property “was going to be half mine and half my uncle’s, and we could basically work the land, and when my uncle passed away the land was going to go to me”.[122] Stephen did not assert that Remo had any interest in the property – nor did he say that Romolo had no interest.
[122]T535.
There was little, if any, evidence led on behalf of the Estate to disturb the notion that Romolo had a joint interest in the property with Stephen. Perhaps the high point of the Estate’s case might have the embryonic plan of Stephen to build a house on the property.[123] Nothing eventuated. I do not regard its existence as being inconsistent with the joint ownership by Romolo and Stephen of the property. Nor do I think that the fact that a potential purchaser was taken to the hospital to discuss with Remo the sale of Tooborac leads anywhere. The purchaser was not called. Moreover, it is simply indicative of “family” involvement. Remo was the acknowledged driving force and it is not surprising that the purchaser was taken to the hospital to see him.
[123]T537-538.
Ultimately, I conclude that there is no evidence upon which I can draw a conclusion as to Remo being the sole source of the funds used for this venture. Moreover, the evidence of the two nephews points to the fact that the property was a true shared property between Romolo and Stephen as joint proprietors.
In my view the use of the property was consistent with the plan that had been entered into by Romolo and Remo. Namely, that a share of the property would be in Stephen’s name with the ultimate intention that he might gain some benefit from it. There is nothing unusual about uncle and nephew owning a property jointly. There is no evidence that this was a “partnership venture”. Rather, it was a typical family arrangement to purchase a second property for recreational use and, perhaps, later habitation.
Accordingly, I reject the Estate’s claims that there was a resulting trust in favour of Remo and that it had a beneficial interest in the property. It has not been shown that the legal title should be disturbed. Therefore it follows that the funds now held in trust as a result of the sale of the property should be divided equally between Romolo and the Estate.
I will make the declaration sought by Romolo. The counterclaim by the Estate in respect of the Tooborac property is dismissed.
The Kilmore Property
Romolo asserts that, given the contributions made by him, there is a resulting trust in his favour proportionate to his contributions.
It was common ground that the property was purchased for $290,000 by Remo and Romolo as tenants in common. The purchase price was paid as follows:
(a) $29,000, the deposit, out of the joint account on 12 April 2001 and 16 May 2001.[124]
(b) $185,695 from the joint account on 6 July 2001.[125]
(c) $90,000 financed by way of a vendor’s mortgage: an interest only loan.[126]
[124]P12.
[125]P12.
[126]Exhibit P25.
By the time of final submissions, the claim framed on behalf of Romolo was that this was not a partnership enterprise, but “a separate acquisition as tenants in common”.[127] Two questions, therefore, arise:
(a) Whether I am satisfied that Romolo contributed a greater proportion (said to be 55% to 45%) to the purchase moneys than Remo and that he may therefore may be able to establish the existence of a resulting trust, or, as pleaded, a constructive trust.
(b) Even if I am satisfied that Romolo had paid a greater proportion, should I, in the circumstances surrounding the purchase of the property, conclude that there was a common intention that the legal title truly represented both the legal and beneficial interest in the property.
[127]Plaintiff’s outline para 40.
I now address the first question: what amount did Romolo contribute?
Romolo’s case that he paid more than Remo in respect of the purchase of the Kilmore property centred upon tracing money from the sale of the Edgars Road property.
I have already indicated I did not regard Romolo as a credible witness about the sale of Edgars Road and the proceeds received.[128][128]See para 37 of these reasons.
Romolo’s assertion that he contributed a greater sum than Remo seemed to be based upon a transfer of $111,519 from a term deposit account in Romolo’s name into the joint account on 7 May 2001. However, Romolo gave totally confusing evidence concerning that sum and its provenance. When asked by his counsel, he said as follows:
“Can you look at the circled amount $111,519?---(Direct) Yes.
Do you know where that sum came from?---(Through interpreter) I don’t know.
Can you turn to – I’ll ask you this question. Do you know whose handwriting that is on that document?---I don’t know, I don’t remember”.[129]
This was typical of much of the evidence given by Romolo. When in doubt, he retreated to “I don’t remember” or “I don’t know”.
[129]T71-72.
Mr Evans tried to save the day by calling Ms Lopatecki, an employee of the Commonwealth Bank, to give evidence. As a result of inquiries made by her, she wrote a letter[130] to a Mr Harper in February 2004 in which she stated:
“I wish to advise that the term deposit for $78,350.35 was held in the name of Remo Rosselli. The term deposit for $111,519 was held in the name of Romolo Rosselli”.
[130]Exhibit P29.
It was then sought to establish a paper trail that would, despite Romolo’s evidence, establish unequal contributions. This was centred upon credit entries of $111,519 into the joint account on 7 May 2001 and $78,350 into the joint account on 6 July – the date upon which the Kilmore property was purchased.
I was then invited by Mr Evans to infer that the Romolo Rosselli term deposit funds must have been the result of the proceeds of the sale of Hughes Parade which had been sold in April 2000 – a year prior to the purchase of the Kilmore property. It was this reasoning, he argued, that should convince me that there were unequal contributions, despite Romolo’s own evidence that he did not know the source of the $114,519.
I reject this suggestion for a number of reasons.
First is the nature of the two brothers’ interest: tenants in common rather than joint ownership; this not only demonstrates a clear intention to take a half share each but it prima facie, in my view, represents the position in terms of source of funds unless it is demonstrated otherwise.
Second, Romolo, in his evidence-in-chief, said nothing about holding a term deposit or putting the proceeds of the sale of Hughes Parade into a term deposit. When asked by his counsel, he said as follows:
“And approximately how much did you receive as proceeds from the Edgars Road sale?---$140,000.
Did you have any obligations to pay anyone out of that $140,000?
---No. To my brother to put them in the bank.”[131]
Subsequently asked about the $78,000 which had apparently come from a Remo term deposit, he said as follows:
“Do you know where that money had come from immediately when it was paid into this account, where it had been just before?---I don’t remember, because I trusted my brother. My brother did everything accurately”.[132]
[131]T70.
[132]T73.
In my view, it is impossible, given the state of the evidence, to conclude that the funds that came out of the Romolo term deposit account were the proceeds of the sale of Hughes Parade or, for that matter, whether the funds were indeed Romolo’s.[133] Given the amount of cash that the brothers handled, endeavouring to determine the source of the funds is not possible. I am not satisfied that the funds utilised to purchase Kilmore were paid in the proportions suggested.
[133]There was a body of evidence that Hughes Parade was a joint endeavour of some sort.
Even if I concluded that Romolo had contributed a greater amount than Remo,
I think that the evidence demonstrated a clear intention to share the property equally.
I have already pointed to the passage in Cummins which demonstrates a primary disinclination on the part of courts to interfere with the incidents of the registered title. In Westdeutsche Landesbank Girozentrale v Islington London Borough Council 1[134], Lord Browne-Wilkinson, having explained the manner in which a resulting trust might arise, said as follows:
“It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter-presumption of advancement or by direct evidence of A’s intention to make an outright transfer”.
[134][1996] AC 669 at 708.
In both Calverley v Green[135] and Cummins, the court was prepared to conclude that a resulting trust existed where the proprietorship was that of a joint tenancy, not tenants in common.
[135](1984) 155 CLR 242.
Romolo gave this evidence in cross-examination:
“And you agreed, you talked between yourselves that both of your names would go on the title?---(Through interpreter) Yes.
And there was no question about whether there was more of his money in the account or more of your money in the account. You were happy to have your names on the title half and half?---(Direct) Yes. (Through interpreter) Yes.
Now when you bought the property at Kilmore you gave evidence on Friday that between you, you had $200,000, do you remember that?
---(Direct) Yes.
And your, you had a discussion with Remo about you were going to buy Kilmore and put your name and his name on title half each?
---(Direct) Yes, yes. (Through interpreter) We went to see it, it was beautiful, we liked it and we both bought it. (Direct) With the same money, more money, his money.
And it didn’t matter if there was more money of your money or his money, your agreement was that you would go on title together half each?---(Through interpreter) Yes.”[136]
[136]T176.
Romolo’s evidence is consistent with the ownership as shown on the title.
I do not think that the evidence of Pullicino or Willis provides any real assistance in relation to determining the true intention of the parties.
Accordingly, I am not satisfied that the legal title should be disturbed. In my view there is no satisfactory evidence which would establish the existence of a resulting trust. Nor is there any evidence to support the existence of a constructive trust. I dismiss Romolo’s claim to a share greater than that demonstrated by the legal title. In the event that the parties wish me to do so, I will make an order for sale of the Kilmore property and directions pursuant to Part IV of the Property Law Act 1958 on the basis that the proceeds be distributed equally between Romolo and the Estate.
The Kilmore payments
Romolo commenced living at the Kilmore property from the time of settlement in mid 2001. Remo also lived there, although it appears to have been somewhat sporadically, given the state of his health. Both prior to and subsequent to Remo’s death on 11 September 2002, Romolo asserted that he made payments in relation to the property for which he sought equitable contribution from the Estate.
Those payments can be categorised as follows:[137]
[137]Set out in paras 44-46 and paras 49-50 of the plaintiff’s written submissions.
(a) Payments towards farm items[138]: $2,020.
[138]Exhibits 18, 20 and 22.
(b) Payments towards the maintenance of stock (e.g. hay, drench etc)[139]:
$2,677.30.[139]Exhibits P19 and P21.
(c) Payments of rates[140]: $3,317.
[140]Exhibit P23.
(d) Payment of insurances: $7,219.[141]
(e) Mortgage repayments on Kilmore: $38,250 and $808 costs.
(f) Pullicino’s wages: $5,000.[142]
[141]Exhibit P26.
[142]T345-348.
Mr Evans submitted that Romolo was entitled to be reimbursed half of these payments pursuant to the principles of equitable contribution.
Ms Sparke contended that no such allowance should be made for several reasons:
(a) The payments made by Romolo towards the maintenance of stock and maintenance and repair of the farm, including any obligation for Mr Pullicino’s work, were satisfied by Remo shortly prior to his death providing Romolo with $13,000, which was to be used towards repairs and maintenance on the property.
(b) That any obligation in relation to contribution towards the mortgage repayments, insurances and rates was offset by Romolo’s sole occupation of the property over a period of five years and therefore no amount was payable.
Ultimately, Mr Evans did not press an argument that the property was partnership property or acquired with partnership funds. He contended that it was a separate acquisition as tenants in common and therefore as co-owner he was entitled to seek equitable contribution.[143] In my view, that was a correct statement of the position. There was no evidence to demonstrate that this was either a partnership acquisition or that the brothers intended to operate a partnership business on the property. The only question, therefore, is whether Romolo can make out his various claims for equitable contribution.
[143]Written submissions para 40, 44-49.
Before turning to each of the claims, it is necessary to say something briefly about the principles relevant to determining such claims. In Professor Butt’s work “Land Law”[144], there is the following proposition:
“In equity, however, in proceedings seeking a general adjustment of the co-owners’ rights in the property when the co-ownership comes to an end, a co-owner may be given credit for improvements and lasting repairs he or she has made to the property, if the other co-owners would benefit unfairly were no credit to be given.”
[144]5th Edition, Law Book Company, para 1427.
Such claims can only be made for repairs of a lasting nature and no allowance is made for expenditure for ordinary maintenance. Insurance premiums are recoverable where a mortgage requires insurance to be taken out.[145] In respect of mortgage instalments, Professor Butt postulates:
“Improvements for which credit is given are not limited to physical improvements, but include payments of mortgage instalments because the payments increase the parties’ equity in the property and hence the amount of proceeds distributable to them.”[146]
[145]Scapinello v Scapinello (1968) SASR 316.
[146]Supra para 1429.
In Silvester v Sands[147] Em Heenan J said of the various claims which might be made by a co-owner:
“Then there is the category of payments which do not directly enhance the capital value of the asset such as for the interest component under a mortgage or other outgoings necessary for the preservation of the property such as repairs, minor improvements and the payments of rates, taxes and other expenses deriving directly from ownership. Often there will be a situation where one of the co-beneficial owners vacates the premises and leaves the other in occupation who, staying on, through choice or necessity continues to meet the mortgage repayments, rates, taxes and other like expenditure. In that situation a remaining co-owner or co-beneficial owner may be entitled to recover a contribution, proportionate to the departed co-owner’s beneficial interest in the property, to the mortgage repayments, rates, taxes and like expenditure, but in such cases the person claiming a contribution or an account will be chargeable with an occupation rent in respect of the period in which he or she continued to enjoy sole possession of the premises.”
[147](2004) WASC 266 at [141].
I turn now to my findings in relation to each of the claims made by Romolo.
Pullicino’s wages
I do not accept the claim made by Romolo in respect of Pullicino’s asserted wages. Pullicino’s evidence as to the work he carried out, the manner in which he carried out the work, the hours he worked and the dates he worked was totally unsatisfactory and unbelievable.[148] He kept no records and his figure of $5,000 was simply plucked out of the air.[149] He has never rendered an account to Romolo or sought payment and, given that their relationship was built upon payments of cash, I have no confidence whatsoever in any amount either Romolo or Pullicino might assert.
[148]T345-347.
[149]T346.
Indeed, when Romolo gave evidence, he said that the only work Pullicino did on the property was for two days a week at $50 a day for which he had been paid.[150]
[150]T78.
As I have said, I did not think Pullicino was an impressive witness, and this is simply another instance of it. Ultimately, I conclude that if any work was done by Pullicino it was performed as part and parcel of his relationship with Romolo and not pursuant to any arrangement requiring payment. I dismiss this part of the claim.
Maintenance and repairs/stock
In respect of the claim for maintenance and repairs on the farm and contributions towards the maintenance of the stock, I conclude that the $13,000 paid out of the joint account into Romolo’s account during 2002 and shortly prior to Remo’s death satisfies any such entitlement. Romolo accepted[151] that those sums were applied to work around the house and maintaining stock.[152] Accordingly, I do not accept that there is any outstanding entitlement to equitable contribution.
[151]T69.
[152]T122.
In any event, even if it was established that such payments had been made and not satisfied by a contribution from Remo, Romolo would only be entitled to be given credit for “lasting repairs” to the property and, as far as I can tell, the only payment which might fall within this category was $1200 for a pump which was apparently installed. I need say no more about this part of the claim. I make no allowance for it.
Mortgages, insurances and rates
Finally, there is the question of Romolo’s entitlement to contribution in respect of the mortgages, insurances and rates which total just short of $50,000. I put to one side the question of Romolo’s renewal of the interest only mortgage without the consent of the Estate.
It might be argued that, given that the mortgage repayments were simply interest only, there is no real improvement as there was no increase in the other parties’ equity by reason of the payment by the other party. In Ryan v Dries[153], the New South Wales Court of Appeal allowed interest payments in calculating the total claim for improvements made by the co-owner. I return to Professor Butt’s work:
“Unlike physical improvements, which are voluntary, mortgage payments are necessary expenditure, since all the co-owners are jointly liable to the mortgagee. A co-owner who pays the whole instalment(s) should be able to recover from the others their proportionate amounts, on the basis of the equitable doctrine of contribution. On this basis no distinction should be drawn between capital and interest: since both are necessary payments, both should be recoverable.”[154]
[153](2003) ANZ Conv R 47.
[154]Supra para 1429.
I believe that this is an accurate statement of the law and accept that Romolo has a right to seek equitable contribution for the mortgage repayments, insurances and rates. I also accept that in respect of insurance of the property, there was an obligation contained within the mortgage instrument that insurance be effected.[155]
[155]Exhibit P25.
The question as to whether an occupation rent can or cannot be charged was considered in Ryan v Dries[156] in which Hodgson JA said as follows:
“There seems little question about the broad principle applicable in this situation: a co-owner of property who has exercised the right to occupy the property is not liable to be charged with an occupation rent unless he or she (1) has excluded the other co-owner from occupation or (2) is claiming allowance for expenditure in respect of the property … If an allowance for expenditure is claimed, then, by reason of the maxim requiring the seeker of equity to do equity, the claimant can be charged with an occupation rent up to the limit of the amount allowed for the claim for expenditure.”[157]
[156]Supra
[157]Supra at para 61, see also Forgeard v Shanahan (1994) 35 NSWLR 206 at 221 and Biviano v Natoli (1998) 43 NSWLR 695 CA at 700-704 and Silvester v Sands [2004] WASC 266 at paras 139-148.
Romolo, is liable, in my view, for such an occupation fee on the two bases set out in Ryan v Dries. Firstly, given that he is claiming an allowance for expenditure, the second condition in Ryan v Dries is met. Secondly, I think that there is, at the very least, an arguable case that Romolo has “ousted” the Estate from exercising its right of occupation. He changed the locks on the gate of the Kilmore property.[158] Romolo’s explanation for why he changed the locks on the gate was implausible – “because someone came and broke the windows of the house” – in a rural setting. However, I think that a more compelling reason to find that there is ouster is the institution of proceedings by Romolo against the Estate. In Re Pavlou,[159] Millett J said as follows:
“I take the law to be to the following effect. First a court of equity will order an inquiry and payment of occupation rent, not only in the case where the co-owner in occupation has ousted the other, but in any other case in which it is necessary in order to do equity between the parties that an occupation rent should be paid. The fact that there has not been an ouster or forceful exclusion therefore is far from conclusive.” (My emphasis).
In my view, Romolo’s actions in changing the locks and subsequently issuing proceedings against the Estate made it clear that the members of Remo’s family were not welcome at the Kilmore property.
[158]T104.
[159][1993] 1 WLR 1046 at 1050.
The combination of Romolo’s claim for an allowance in respect of his expenditure as well as Romolo’s actions subsequent to Remo’s death all, in my view, demand that in doing equity between the parties an occupation fee be levied against Romolo.
The question, then, is at what amount to levy the fee. No evidence as to market rates of rental was led in the course of the trial. Em Heenan J faced the same problem in Silvester. He approached it in the following way:
“However, the exclusive possession of the premises by the defendant has lasted for over nine years and any assessment of an occupation rent or mesne profits over that period, even at extremely modest rates, would very probably exceed the maximum the defendant could advance as the balance due to her after an account for home loan repayments since June 1994 and for rates, taxes and insurance premiums paid on the premises.”[160]
[160]Supra at 148.
I think that I am in the same position. Reduced to a weekly amount and discounting his own share, Romolo’s contributions on behalf of the Estate come to around $90 per week over the past five years whilst he has had exclusive occupation. The Estate is entitled to an occupation fee of half the market rent.[161] The figure of $90, it seems to me, is a modest rental (of half a share) for the farm property and house exclusively occupied by Romolo over that period.
[161]Butt, supra, at 1440.
I therefore conclude that the occupation fee offsets any right to equitable contribution which Romolo might assert.
In summary, I am not satisfied that Romolo has any equitable entitlement to contribution in respect of the payments made by him. I dismiss this part of the claim.
Remaining issues
Each of the parties has, in their pleadings, sought a taking of accounts.[162] In the course of final addresses I do not think that there was any serious attempt to press such a course of action.[163] For the sake of completeness, I should state that I would not be prepared to make such an order. It would be a complete waste of time and costs given the manner in which the partnership operated and the time that has elapsed since the death of Remo.[164]
[162]Paragraphs M, N, O and P of the relief sought by the plaintiff. Paragraphs A, B, E, F and G of the relief sought in the defence and counterclaim.
[163]T769 and para 55 of the plaintiff’s outline of submissions.
[164]Even allowing for Remo’s tractor which seems to be at the Kilmore property – T251.
Romolo seeks payment of half of the sum of $11,385 which is held in trust by Messrs Cain & Lamers. This money is held with the proceeds from the sale of Tooborac. The source of the funds is not entirely clear. It may be from a combination of cattle sales and some items sold out of the Thomastown property. It seems to me that the funds should be distributed equally, as with the Tooborac funds, however I will defer any order until I hear from counsel for the parties.
Summary of my conclusions
I have reached the following conclusions:
(a) Any claim the plaintiff has upon the Alexandra property has not been made out. I dismiss that part of the plaintiff’s claim.
(b) The defendant has not established that the legal title to Tooborac as it stood at the time of its sale should be disturbed. I will make the declaration sought by the plaintiff in paragraph E of the prayer for relief in the further amended Statement of Claim. I dismiss the defendant’s counterclaim. The proceeds of sale held by Messrs Cain & Lamers should be divided equally between the plaintiff and defendant.
(c) The title to the Kilmore property reflects the true beneficial interest. It should not be disturbed. I dismiss that part of the plaintiff’s claim.
(d) I do not think that the plaintiff has established an equitable entitlement in respect of payments of expenses and outgoings related to the Kilmore property. I dismiss that part of the plaintiff’s claim.
(e) For the sake of completeness I dismiss that part of the plaintiff’s claim relating to the Elmore property.
I will, if required, make an order and give directions in respect of the sale of the Kilmore property pursuant to Part IV of the Property Law Act on the basis of an equal distribution of the funds from the sale.
Orders
As discussed in final addresses, I think it appropriate that the parties bring in Minutes of Orders consistent with these reasons. I will then hear argument as to the question of costs.
Afterword
In my view, there is a strong probability that both the plaintiff and Remo Rosselli understated their incomes in tax returns provided by the partnership and individually to the Australian Taxation Office over a lengthy period of time. The tax returns that were tendered, in my view, bear little relationship to the evidence led at the trial and the accumulation of assets by the brothers during their time in Australia. I direct that a copy of these reasons and the transcript of evidence be forwarded to the Deputy Commissioner of Taxation. I further direct that the exhibits in this case be held by the Prothonotory until further order. I grant the parties liberty to apply in relation to release of the exhibits on appropriate notice.
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