SOTO -v- SOTO [2013] WASC 211

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 211
Case No:	CIV:2733/2010	Heard:	6 - 8 MAY 2013
Coram:	McKECHNIE J	Delivered:	30/05/13
No of pages:	21	Judgment Part:	1 of 1
Result:	Order for recovery of mortgage contributions
Category:	B
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Parties:	JOSE DOMINGO HERNANDEZ SOTO TRINIDAD DEL CARMEN SOTO
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
Case References:	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

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

(Page 2)

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

(Page 3)

McKECHNIE J

Overview

1 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.

2 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.

3 Mr Soto had a lady friend, Francie May, whom the family had known for about ten years. In April…

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
Decision Date: 30 MAY 2013

CaseChat Overview and Summary

In the case of Soto v Soto, the dispute centred around the sale of a property and the subsequent contributions made by one party to the mortgage payments. The matter was heard in the Supreme Court of Queensland. The plaintiff, Soto, claimed that an oral agreement was in place for the sale of the property and sought recovery of the mortgage contributions made towards the property. The defendant, also Soto, disputed the existence of the oral agreement and denied any obligation to repay the contributions.

The primary legal issues before the court were whether the terms of the alleged oral agreement were precise enough to be enforceable, and whether the contributions made by the plaintiff to the mortgage payments could be recovered despite the alleged breach of the Statute of Frauds. The court needed to determine whether the oral agreement was specific enough to create a binding contract, and if the contributions could be reclaimed under the doctrine of unjust enrichment.

The court found that while the terms of the oral agreement were not explicitly defined, they were sufficient to establish a binding contract for the sale of the property. The court held that the contributions made by the plaintiff to the mortgage payments could be recovered based on the principle of unjust enrichment. The court determined that the defendant was unjustly enriched by the contributions and ordered the defendant to repay the plaintiff for the mortgage contributions made.

The final orders of the court were that the defendant was required to repay the plaintiff for the mortgage contributions made towards the property. The court's decision recognised the existence of the oral agreement and held that the plaintiff was entitled to recover the mortgage contributions from the defendant.

Orders

Orders of the court

Order for recovery of mortgage contributions

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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