Giuseppe Bonifacio v NSW Trustee and Guardian acting as executor of the Estate of the late Adam Frank Woitala [2015] NSWSC 124

Giuseppe Bonifacio v NSW Trustee and Guardian acting as executor of the Estate of the late Adam Frank Woitala [2015] NSWSC 124

The plaintiffs discovered the fraudulent transfer by no later than 13 February 1998. Their cause of action to recover land accrued when the fraudulent transfer was registered in 1995, subject to postponement for fraud, so the twelve year limitation period commenced no later than 13 February 1998 and expired before proceedings commenced in December 2013. Even if s 38 applied, Adam Woitala was in adverse possession of the whole property by at least the end of 1998 because he had procured registration as sole proprietor, asserted the house was his, refused to undo the fraud, and remained in possession without the plaintiffs' consent and not for their benefit. Any claim to recover trust...

Jurisdiction
Australia
Judgment Date
27 February 2015
Procedural Posture
Equity Division Proceedings Seeking a Declaration of Constructive Trust and Amendment of the Real Property Act Register / Principal Judgment After Hearing
Outcome
Plaintiffs' action not maintainable due to operation of Limitation Act 1969 (NSW); claims for relief refused.
Legal Topics
['fraudulent Transfer of Co Owned Land' 'torrens Title Register Amendment' 'constructive Trust' 'recovery of Land' 'recovery of Trust Property' 'adverse Possession Between Co Owners' 'laches']
['limitation of Actions' 'real Property' 'equity and Trusts'] ['fraudulent Transfer of Co Owned Land' 'torrens Title Register Amendment' 'constructive Trust' 'recovery of Land' 'recovery of Trust Property' 'adverse Possession Between Co Owners' 'laches']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Division Proceedings Seeking a Declaration of Constructive Trust and Amendment of the Real Property Act Register / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the plaintiffs' claims arising from a fraudulent 1995 transfer of their one half interest in land were statute barred under the Limitation Act 1969 (NSW)." 'Whether s 38 of the Limitation Act 1969 (NSW) postponed accrual of the cause of action to recover land until the land was first in adverse possession.' 'Whether Adam Woitala was in adverse possession of the whole property, including as against the plaintiffs as co-owners.' "Whether the plaintiffs' claim could be characterised as one to recover trust property under s 47 of the Limitation Act 1969 (NSW)." "Whether it was necessary to determine the first defendant's laches defence."]

Ratio Decidendi

The plaintiffs discovered the fraudulent transfer by no later than 13 February 1998. Their cause of action to recover land accrued when the fraudulent transfer was registered in 1995, subject to postponement for fraud, so the twelve year limitation period commenced no later than 13 February 1998 and expired before proceedings commenced in December 2013. Even if s 38 applied, Adam Woitala was in adverse possession of the whole property by at least the end of 1998 because he had procured registration as sole proprietor, asserted the house was his, refused to undo the fraud, and remained in possession without the plaintiffs' consent and not for their benefit. Any claim to recover trust...

Court Disposition

Plaintiffs' action not maintainable due to operation of Limitation Act 1969 (NSW); claims for relief refused.

Orders

  • ['The Amended Statement of Claim should be dismissed.' "Orders should be made for the removal of the plaintiffs' caveat." 'Orders should be made for delivery of the Certificate of Title to the first defendant.' 'Costs should follow the event.' 'The parties were directed to bring in Short Minutes within fourteen days...