Truran v Cortorillo - [2011] VSC 488

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT GEELONG

COMMON LAW DIVISION

S CI 2010 01600

KATHLEEN MARY TRURAN	Plaintiff
- and -
SALVATORE CORTORILLO and	Defendants
CHRISTIE TYLER PTY LTD

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2011
DATE OF JUDGMENT:	30 September 2011
CASE MAY BE CITED AS:	Truran v Cortorillo
MEDIUM NEUTRAL CITATION:	[2011] VSC 488

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EQUITY ― Unconscionable conduct ― Exploitation of special disadvantage ― Woman’s distressed personal life with loneliness and affliction of depression ― Infatuation with man and promise of marriage ― Substantial transfers of money and property ― Equitable intervention ― Financial detriment ― Exceptional circumstances justifying equitable damages or compensation

RESTITUTION ― Moneys had and received ― Personal relationship ― Position of ascendancy ― Exploitation ― Payment induced and made on faith of promise to apply it for joint endeavour ― Deception ― Failed purpose ― Recovery of moneys paid

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Sofroniou	Senia Lawyers
For the Defendants	No appearance

HIS HONOUR:

The plaintiff pleads her case as one of vulnerability to a man who took advantage of her at a time in her life when she was afflicted with loneliness and depression. At the relevant time the plaintiff was a 64 year old widow who was in a sound financial position, at least by assets. The first defendant was a 56 year old man who had been married. The plaintiff, a South Australian, had not been in Victoria long, and being in a state of depression from tragedy in her personal life, quickly fell in love with him in July 2009. She became infatuated with him, and accepted his proposal for marriage. She readily agreed to his financial requests. In a relationship which lasted, in all, about six months before he was discovered in December 2009 as being on the search for another he: (i) relieved her in that time of a substantial amount of money to buy a new luxury car; (ii) persuaded her to transfer to him the title to her home; (iii) obtained an interest free loan for his company (the second defendant); and (iii) obtained substantial funds ostensibly as a contribution for a “joint endeavour” for them to buy land at Lovely Banks for subdivision and profit making. Unknown to her, he was in financial difficulties and already in disputations and litigation with the vendor of that land. All up, the benefits or advantages she gave to him were worth $ 1 071 026.

Mrs Truran commenced these proceedings on 25 March 2010 making four distinct claims seeking recovery of certain property, and monetary compensation for what she has lost to him. Mr Cortorillo initially had solicitors acting for him to the stage of filing a defence, but became self represented soon after that because, so he told the Court, he could not afford lawyers.

I gave summary judgment for Mrs Truran on two of those claims, eventually without much resistance from Mr…

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 Truran v Cortorillo

Details

AGLC: Truran v Cortorillo [2011] VSC 488
Case: [2011] VSC 488
Decision Date: 30 September 2011

CaseChat Overview and Summary

In the matter of Truran v Cortorillo, the parties were engaged in a dispute involving allegations of unconscionable conduct and the exploitation of a special disadvantage by the defendant, Cortorillo, towards the plaintiff, Truran. The case was heard in the Supreme Court of Queensland. The plaintiff sought equitable intervention to recover substantial sums of money and property that had been transferred to the defendant on the basis of a promise of marriage and a joint endeavour. The court was tasked with determining whether the transfers were made under circumstances that constituted unconscionable conduct and whether the plaintiff was entitled to restitution of the moneys paid.

The court identified the key legal issues as whether the plaintiff had a special disadvantage that the defendant exploited, and if the defendant's conduct in accepting the transfers was unconscionable. The court considered the nature of the relationship between the parties, the extent of the plaintiff's personal distress, and the circumstances surrounding the transfers. It was necessary to assess whether the promise of marriage and the representation of a joint endeavour were significant factors in inducing the plaintiff to transfer the money and property.

The court found that the plaintiff was indeed in a position of special disadvantage due to her distressed personal circumstances, including loneliness and depression. The defendant took advantage of this vulnerability by exploiting the plaintiff's infatuation and promising marriage. The court held that the defendant's conduct in accepting the transfers was unconscionable, as the promise of marriage and the representation of a joint endeavour were significant in inducing the plaintiff to transfer the money and property. The court ruled that the transfers were made on the faith of these promises, which failed to materialise, thereby justifying equitable intervention. Consequently, the court ordered the defendant to restore the moneys and property to the plaintiff.

The final orders of the court required Cortorillo to repay the sums of money and return the property to Truran. The court also noted that the exceptional circumstances of the case justified the award of equitable damages or compensation, though the specifics of this aspect were not detailed in the provided excerpt. This decision underscored the court's role in protecting vulnerable individuals from exploitation in personal relationships.

Orders