Pennimpede v Gerard Pennimpede & 2 Ors [2009] NSWSC 85

Pennimpede v Gerard Pennimpede & 2 Ors [2009] NSWSC 85

Gerard and Rita Pennimpede did not hold the 50% interest in the land as mortgagees or on trust, but as beneficial owners by virtue of forgiveness of debt, and no trust or mortgage arose. The subsequent transfer by Vito of his 25% interest was also for value (release from NAB liability), with no ongoing trust or right to reconveyance; Vito's claims for reconveyance were barred by laches and failure to offer to do equity within a reasonable time. Pasquale's accounting claims were to be determined by a limited inquiry as specified.

Parties
Plaintiff: Vito Pennimpede; First Defendant: Gerard Pennimpede; Second Defendant: Rita Pennimpede; Third Defendant/cross Claimant: Pasquale Pennimpede
Jurisdiction
Australia
Judgment Date
27 February 2009
Procedural Posture
Equity Proceedings/principal Judgment / Final Judgment After Hearing
Outcome
Judgment for the Defendants on the Plaintiff's claim; limited inquiry/account pursuant to cross-claim; appointment of trustees for sale.
Legal Topics
Mortgages, Constructive Trust, Resulting Trusts, Co Ownership of Land, Trustees for Sale, Accounting Between Co Owners, Laches and Limitation, Beneficial Ownership
Equity Property Law Mortgages Constructive Trust Resulting Trusts Co Ownership of Land Trustees for Sale Accounting Between Co Owners +2 more

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 4 Authorities cited 13 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Vito Pennimpede

Plaintiff

Gerard Pennimpede

First Defendant

Rita Pennimpede

Second Defendant

Pasquale Pennimpede

Third Defendant/cross Claimant

Procedural Posture

Equity Proceedings/principal Judgment / Final Judgment After Hearing

Legal Issues

  1. 1 Whether Gerard and Rita Pennimpede held a 50% interest in land as mortgagees or as beneficial owners
  2. 2 Whether Vito Pennimpede was entitled to a reconveyance of a 25% share in land transferred to Gerard and Rita in 1996
  3. 3 Whether the parties were liable to account for rents and profits from the property

Ratio Decidendi

Gerard and Rita Pennimpede did not hold the 50% interest in the land as mortgagees or on trust, but as beneficial owners by virtue of forgiveness of debt, and no trust or mortgage arose. The subsequent transfer by Vito of his 25% interest was also for value (release from NAB liability), with no ongoing trust or right to reconveyance; Vito's claims for reconveyance were barred by laches and failure to offer to do equity within a reasonable time. Pasquale's accounting claims were to be determined by a limited inquiry as specified.

Court Disposition

Judgment for the Defendants on the Plaintiff's claim; limited inquiry/account pursuant to cross-claim; appointment of trustees for sale.

Orders

  • Judgment for the defendants on Vito Pennimpede's Amended Statement of Claim.
  • Plaintiff to pay costs of proceedings for First and Second Defendants.