Reitano v Reitano [2012] NSWSC 1127

Reitano v Reitano [2012] NSWSC 1127

On the facts found, the plaintiff and the first defendant made an oral agreement relating to the Alexandria property or the first defendant created a bare trust of it; the plaintiff gave consideration by contributing to the Alicante apartment and foregoing benefits from it, and the parties' subsequent conduct, especially the plaintiff's exclusive possession and responsibility for the Alexandria property for about 25 years and the 2006 conversation, proved the arrangement. Those acts, taken together, were sufficient part performance to prevent Sections 54A and 23C of the Conveyancing Act 1919 being used to defeat the plaintiff's claim, and the circumstances showed an objective intention to...

Jurisdiction
Australia
Judgment Date
17 September 2012
Procedural Posture
Equity Proceeding Concerning an Alleged Oral Agreement, Agreement to Create a Trust, or Declaration of Trust Over Land / Principal Judgment After Hearing
Outcome
The plaintiff succeeded; orders were to be made requiring transfer of the first defendant's interest in the Alexandria property to the plaintiff, conditional on the plaintiff undertaking to transfer his interest in the Alicante property to the first defendant, with each party to bear his and her own costs.
Legal Topics
['oral Contract' 'evidence of Contract' 'subsequent Conduct Admissible to Prove Existence of Contract' 'oral Declaration of Trust' 'intention to Create Legal Relations Between Family Members' 'part Performance' 'sections 54 a and 23 C of the Conveyancing Act 1919']
['contract' 'trusts and Trustees' 'equity' 'property Law'] ['oral Contract' 'evidence of Contract' 'subsequent Conduct Admissible to Prove Existence of Contract' 'oral Declaration of Trust' 'intention to Create Legal Relations Between Family Members' 'part Performance' 'sections 54 a and 23 C of the Conveyancing Act 1919']

Case Brief

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Procedural Posture

Equity Proceeding Concerning an Alleged Oral Agreement, Agreement to Create a Trust, or Declaration of Trust Over Land / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff and the first defendant made an oral agreement relating to transfer of the Alexandria property or an agreement to create a trust.' 'Whether the first defendant made a declaration of trust of her interest in the Alexandria property.' 'Whether subsequent conduct was admissible and probative of the existence of the agreement or trust.' 'Whether acts of part performance defeated reliance on the writing requirements in Sections 54A and 23C of the Conveyancing Act 1919.' 'Whether, viewed objectively in a family context, the parties intended to enter into legal relations.']

Ratio Decidendi

On the facts found, the plaintiff and the first defendant made an oral agreement relating to the Alexandria property or the first defendant created a bare trust of it; the plaintiff gave consideration by contributing to the Alicante apartment and foregoing benefits from it, and the parties' subsequent conduct, especially the plaintiff's exclusive possession and responsibility for the Alexandria property for about 25 years and the 2006 conversation, proved the arrangement. Those acts, taken together, were sufficient part performance to prevent Sections 54A and 23C of the Conveyancing Act 1919 being used to defeat the plaintiff's claim, and the circumstances showed an objective intention to...

Court Disposition

The plaintiff succeeded; orders were to be made requiring transfer of the first defendant's interest in the Alexandria property to the plaintiff, conditional on the plaintiff undertaking to transfer his interest in the Alicante property to the first defendant, with each party to bear his and her own costs.

Orders

  • ['The first defendant should execute all such documents and do all such things as may be necessary to transfer to the plaintiff her right title and interest in the Alexandria property.' 'In the event of her failure to do so within 42 days of the making of the orders, a Registrar of the Court should be authorised to...