GOMES v GUERREIRO [1991] NSWCA 125

GOMES v GUERREIRO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and CLARKE JJA 4 February 1991, 10 April 1991

[1991] NSWCA 125

NEW POINT sought to be argued on appeal — respondent's case may have been differently (more fully) conducted on the point had it been raised below — in any event, on available materials new point would not prevail.

APPEAL against factual findings of trial judge that property in name of parents of deceased son was held by them on trust for him (and therefore his estate) - issues dependent partly on conflicting evidence and partly on inconclusive documentation no reason shown to disturb trial judge's findings on credibility - nor his conclusions from the combination of oral and documentary evidence.

ORDER

Appeal dismissed with costs.

Gleeson CJ I have had the advantage of reading in draft form the reasons for judgment of Priestley JA. I agree with the orders proposed by his Honour and with his reasons for those orders.

Priestley JA Outline of matters leading to this appeal. In about 1952 Mr Ricardo Gomes left Portugal with his wife and family to live in Australia. In 1974 Mr and Mrs Gomes went back to Portugal to live. They had some property in Australia at that time. They each gave a power of attorney to their son Mr Albert Guerreiro. These powers of attorney were registered and were in very wide terms. In 1980 Mr A. Guerreiro entered into a contract to buy premises at Botany Road, Alexandria, using the powers of attorney to have his parents named as the purchasers in the contract. The purchase was completed on 25 November 1980 and Mr and Mrs Gomes became the registered proprietors of the premises. Part of the purchase money was furnished on settlement by persons who, in return for the money being handed over received memorandums of mortgage over the premises which were duly registered. Mr and Mrs Gomes were named as the mortgagors in these mortgages.