Parente v Parente [2006] NSWSC 1154

New South Wales Supreme Court

CITATION : Parente v Parente [2006] NSWSC 1154

HEARING DATE(S) : 30, 31 October 2006 JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 10/31/2006

DECISION : Proceedings by plaintiff claiming equitable interest in land dismissed.

CATCHWORDS : TRUSTS [103]- Constructive trust- Purchase of property by father- Son contributed wages towards purchase- Father intimated to son that son would receive half share in property when father died- Whether constructive trust arises by promissory estoppel- Promise vague- Reliance on promise not established- Monies paid because of filial duty of son to family- Held no constructive trust.

Allen v Snyder [1977] 2 NSWLR 685 Attorney-General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd [1987] AC 114 Barns v Barns (2003) 214 CLR 169 Baumgartner v Baumgartner (1987) 164 CLR 137 CASES CITED : Grant v Edwards [1986] Ch 638 Hewett v Court (1983) 149 CLR 639 Jennings v Rice [2002] EWCA Civ 153 Muschinski v Dodds (1985) 160 CLR 583 Orr v Ford (1989) 167 CLR 317

PARTIES : Emidio Antonio Parente (P) Berardino Parente (D)

FILE NUMBER(S) : SC 4712/05

COUNSEL : R Sergi (P) S Austin (D)

SOLICITORS : Palmieri Law Firm (P) Paul Gowran & Co (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 31 October 2006

4712/05 – PARENTE v PARENTE JUDGMENT 1 HIS HONOUR: These proceedings are brought by a son against his father, claiming a half interest in the family home. That home is at 6 Pokolbin Street, Broadmeadow and I will refer to it subsequently in these reasons as "the Property". 2 The plaintiff's statement of claim says that he and his father arrived in Australia from Italy in October 1967. Initially they both lived with the plaintiff's elder sister, Nina Di Claudio, in the Newcastle area and they both went to work as labourers at Electric Power Transmission at Carrington in Newcastle, commonly called EPT. 3 The plaintiff says that shortly after commencing work at EPT he and his father entered into an arrangement whereby he was to pay his father all his earnings for the purpose of assisting his father to buy a residence. In return, he was promised by his father that he would be a half owner in that property one day. He says, as is common ground, that the father purchased the property in late 1969 and that the title was put in the father's sole name. The evidence shows that with on-costs, the purchase cost was $9,275, of which $5,450 was raised by mortgage from the Commonwealth Bank, so that about $3,825 was paid by the defendant and there is little doubt in my mind that part (though I do not know what part) of this $3,825 originated from moneys paid by the plaintiff to the defendant. 4 The rest of the family had been left in Italy. They comprised the wife of the defendant and mother of the plaintiff, Rosa Parente, and seven other children. They came to Australia in March 1970. The family in Italy had been supported by moneys sent back by the defendant to Rosa, though she complained that she had been deprived of the capacity to grow food provided by the plaintiff and the defendant when they were all in Italy and she was starved of money because the defendant told her that because he was saving up for a house he could not send her as much money as she wanted. Just how much was sent over to Italy and how much of it originated from the plaintiff's wages is quite unclear. 5 The family was reunited in Newcastle in March 1970 and they all lived on the Property. From this time until 1975 the plaintiff says he gave his pay packet to his mother and the mother paid the mortgage and other household expenses so that the mortgage was discharged in March 1975, the last payment being made earlier in 1975. The plaintiff says he continued to hand his pay packet to his mother until he left Australia in mid-1979 to get married. He got married in Italy, returned at Christmas 1979 with a wife and commenced his own business as a concreter in early 1980. 6 So the plaintiff says that between 1967 and June 1979 he gave his pay packet to either the defendant or his mother, which contained all his earnings. The plaintiff says that he never opened any bank account until 1978 and that his father in the initial period would give him back between $5 and $8 a week for entertainment and he realised that some of the money which he had given to his father was going to go towards food and board and for the support of the rest of the family back in Italy in the initial period but that the balance was going to be saved for a deposit on a house in which the whole family could live. 7 There is contention between the witnesses as to whether the plaintiff did in fact hand over his entire pay packet to his father or mother. The facts should really be put into three periods: