OLIVERI v JONES [1997] NSWCA 240

OLIVERI v JONES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and STEIN JJA 8 and 9 July 1997, 14 October 1997

[1997] NSWCA 240

Equitable interests in real estate — claim by trustee in bankruptcy of one of the 'legal' owners — disclaimer of interest — no reason to disturb trial judge's findings as to where equitable interests lay.

On appeal:

The plaintiff's son Dominic Lawrence Oliveri (DLO), a bankrupt, was a co-owner of 3 pieces of real estate, two rural blocks of land, and a block of 4 flats at Petersham which was his principal residence. The plaintiff sought to resist the claims of his son's trustee in bankruptcy for a share in the properties. The trial judge found that DLO was entitled to the whole equitable interest in the Petersham property but that he was not a partner in and had not contributed to, the family partnership for which the two rural properties appeared as assets.

The plaintiff appealed against the decision regarding the Petersham property and the trustee cross appealed in relation to the rural properties.

Held:

There was adequate evidence for the trial judge's finding in relation to the Petersham

property. The trial judge was entitled to rely on the partnership accounts rather than the legal title in relation to equitable ownership of the rural properties notwithstanding the attempt to

repudiate them by the Oliveris. There was no reason to disturb the trial judge's decision. Handley JA I agree with Stein JA. Meagher JA I agree with Stein JA.

Stein JA This case concerns an appeal and cross appeal from the decision of Bryson J as to where the equitable interests lay in three properties purchased in the names of various members of the Oliveri family, including the appellant/plaintiff Giovanni Oliveri and his five adult children. In the context of the bankruptcy of one of the children, Dominic Lawrence Oliveri (DLO), Michael Jones, the trustee in bankruptcy of DLO (the trustee), sought to claim the whole of one property and a share of the other two properties. The appellant commenced proceedings to seek declarations that he held the whole of the beneficial interest in each of the three properties, although the legal title to the properties was in various names. Besides the trustee, the other adult children were joined as defendants - Joseph Oliveeri, Emanueli Oliveri, Rosa Oliveri and Saveria Oliveri.