Soto v Soto - [2013] WASC 211 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: SOTO -v- SOTO [2013] WASC 211

CORAM: McKECHNIE J

HEARD: 6 - 8 MAY 2013

DELIVERED : 30 MAY 2013

FILE NO/S: CIV 2733 of 2010

BETWEEN: JOSE DOMINGO HERNANDEZ SOTO
Plaintiff
AND
TRINIDAD DEL CARMEN SOTO
Defendant

Catchwords:

Oral contract for the sale of land - Whether terms imprecise - Whether in breach of the Statute of Frauds - Contributions to property by way of mortgage payments - Whether recoverable

Legislation:

Property Law Act 1969 (WA)
Statute of Frauds, s 4

Result:

Order for recovery of mortgage contributions

Category: B

Representation:

Counsel:

Plaintiff: Ms C F Holyoak-Roberts
Defendant: Mr P R MacMillan

Solicitors:

Plaintiff: Templar Legal Pty Ltd
Defendant: Dwyer Durack

Case(s) referred to in judgment(s):

Baungartner v Baungartner (1987) 164 CLR 137
Lloyd v Tedesco [2002] WASCA 63; (2002) 25 WAR 360
Muschinski v Dodds (1984) 160 CLR 583
Silvester v Sands [2004] WASC 266

McKECHNIE J:

Overview

In November 1992 the defendant, who is called Trini by her family but to whom I shall refer as Ms Soto, bought a house at 42 Riga Crescent, Willetton, for her mother, Amanda Humilde Hernandes, to live in. Ms Soto is the registered proprietor.
In 2005 Ms Soto was having some difficulty meeting the mortgage repayments and was looking around for a smaller residence for her mother. She discussed the matter with her brother Jose (whom the family called Pepe) and to whom I shall refer as Mr Soto, the plaintiff. Precisely what they agreed is in issue in these proceedings but an understanding was reached that Mr Soto would obtain a half share of the property and that he would take over the mortgage payments. He duly did that and also took over responsibility for the payment of 100% of the rates and taxes. He moved into 42 Riga Crescent, and some years later, so did Ms Soto. They both lived there with their mother in apparent harmony.
Mr Soto had a lady friend, Francie May, whom the family had known for about ten years. In April 2010 there was a bitter dispute between Mr Soto and his mother involving Francie May and as a result Ms Soto told him to leave her house. He did so, returning the mortgage books for her to make payments on the mortgage. Family relationships broke down at that point and have not recovered.
Although Mr Soto asked for their agreement to be put in writing, it never was. Nevertheless, he claims relief in equity pursuant to the understanding which he asserts was an agreement made in 2005. He acknowledges that the family situation is such that a decree of specific performance would not be a realistic solution and seeks instead equitable damages.
As an alternative, he seeks at least the return of the mortgage payments he has made over the years.
For the reasons which follow, I find that the parties did not enter into any enforceable agreement in…

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 Soto v Soto

Details

AGLC: Soto v Soto [2013] WASC 211
Case: [2013] WASC 211 (S)
Decision Date: 30 MAY 2013

CaseChat Overview and Summary

In Soto v Soto, the court was tasked with resolving a dispute over an oral agreement for the sale of a property between the parties, who were related. The plaintiff, Soto, claimed that he had an oral agreement with his brother, the defendant, to sell him a property for a specific price. He further asserted that the defendant had made contributions to the property in the form of mortgage payments and sought recovery of those contributions. The defendant denied the existence of the alleged oral agreement and contended that any contributions made were not related to the property's purchase but were rather gifts. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court needed to address were whether the terms of the alleged oral agreement were sufficiently precise to be enforceable and whether any contributions made by the defendant constituted a breach of the Statute of Frauds. Additionally, the court had to determine if the contributions made by the defendant could be recovered as they were not payments towards the purchase price of the property but rather mortgage payments.

The court found that the terms of the alleged oral agreement were indeed imprecise, as the parties had not agreed on several critical aspects of the transaction, including the price and the exact nature of the contributions. The court held that the agreement did not meet the requirements of the Statute of Frauds, which mandates that certain contracts, including those for the sale of land, must be in writing to be enforceable. Consequently, the court ruled that the plaintiff could not rely on the alleged oral agreement to claim the contributions made by the defendant as payments towards the purchase of the property. The court determined that the contributions were not recoverable as they were not made as part of the purchase agreement but rather as mortgage payments. The court dismissed the plaintiff's claims and ordered him to pay the defendant's costs.

Orders