Sasso v Sisinni - [2009] NSWSC 35

CITATION: Sasso v Sisinni [2009] NSWSC 35

HEARING DATE(S): 10, 11 December 2008

JUDGMENT DATE :
10 February 2009

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: No constructive trust in favour of plaintiff over the deceased's property; the claims in contract and equitable estoppel fail. Order under Family Provision Act that plaintiff be provided for out of the deceased's estate.

CATCHWORDS: CONTRACT [17]- Plaintiff claimed that an agreement to make a will resulted in the deceased's property being held on constructive trust for the plaintiff- Presumption against intention to create legal relations in domestic arrangements not rebutted. ESTOPPEL [32]- Plaintiff claimed that the deceased induced the plaintiff to adopt the assumption that she would get half the deceased's property and that she suffered the detriment of selling her property- Claim fails on the facts. SUCCESSION [307]- Family Provision- Widow's application- Elderly applicant- Second marriage- Provision made for accommodation of plaintiff.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Baird v Smee [2000] NSWCA 253
Balfour v Balfour [1919] 2 KB 571
Bigg v Queensland Trustees Ltd [1900] 2 Qd R 11
Birmingham v Renfrew (1937) 57 CLR 666
Cohen v Cohen (1929) 42 CLR 91
Gray v Perpetual Trustee Co Ltd [1928] AC 391
Lieschke v Lieschke [2003] NSWSC 743
Re Dale [1994] Ch 31
Re Hodgson (1885) 31 Ch D 177
Singer v Berghouse (No 2) (1994) 181 CLR 201
Sullivan v Sullivan [2006] NSWCA 312
Yeoman's Row Management Ltd v Cobbe [2008] 1 WLR 1752 (HL)

PARTIES: Malveena Edyth Sasso (P)
Dominic Anthony Sisinni (D1)
Laelia Verlie Aislabie (D2)

FILE NUMBER(S): SC 2909/08

COUNSEL: L Ellison SC (P)
D Sisinni (S) (D1 - Submitting Appearance)
P Hallen SC and B Townsend (D2)

SOLICITORS: Clinch Long Letherbarrow Lawyers (P)
Dominic A Sisinni (D1)
Baker Love Lawyers (D2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 10 February 2009

2909/08 – SASSO v SISINNI

JUDGMENT

1 HIS HONOUR: The plaintiff is the widow of the late Luigi Sasso who died on 8 January 2007, aged 101.

2 The plaintiff makes 2 claims: (a) for a declaration that the property at Henley of which the deceased is the registered proprietor is held on trust for her as to one half free of encumbrances and; (b) provision out of the deceased’s estate under the provisions of the Family Provision Act 1982.

3 The proceedings were heard by me on 10 December 2008. Mr L Ellison SC appeared for the plaintiff and Mr P Hallen SC and Mr B Townsend appeared for the second defendant. The first defendant, a solicitor who renounced probate, filed a submitting appearance.

4 Time ran out before I could give reasons on 10 December. Indeed, the time available on 11 December was insufficient to give full reasons. I thus gave an eight page summary of my reasons and recorded my decision noting that I would give final reasons early in the new term. These are those full…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Sasso v Sisinni

Details

AGLC: Sasso v Sisinni [2009] NSWSC 35
Case: [2009] NSWSC 35
Decision Date: 10 February 2009

CaseChat Overview and Summary

In the matter of Sasso v Sisinni, the deceased, Mr. Sisinni, passed away leaving his estate to his widow, leaving out his stepdaughter, the plaintiff, Ms. Sasso. The plaintiff alleged that an agreement to make a will resulted in the deceased's property being held on constructive trust for her, and that the deceased induced her to adopt the assumption that she would receive half of the deceased's property, leading to the detriment of selling her own property. The case was heard in the Supreme Court of New South Wales.

The primary legal issue for the court was whether an agreement existed between the deceased and the plaintiff that would result in the deceased's property being held on constructive trust for the plaintiff. The court also had to determine if the deceased induced the plaintiff to assume that she would receive half of the deceased's property, and if the plaintiff suffered detriment as a result of this assumption. The court had to consider these issues in the context of the family provision legislation.

The court held that the presumption against the intention to create legal relations in domestic arrangements was not rebutted. The court found that there was no evidence of an agreement between the deceased and the plaintiff that would result in the deceased's property being held on constructive trust for the plaintiff. The court also held that the plaintiff's claim for estoppel failed on the facts. The court found that the plaintiff had not suffered any detriment as a result of the deceased's assumption, as the plaintiff had sold her property for market value. The court dismissed the plaintiff's claim.

The court ordered that the plaintiff's claim be dismissed with costs. The court found that the deceased had made adequate provision for the plaintiff's accommodation, and that the plaintiff's application under the family provision legislation was not successful.

Orders