Tesoriero & Anor v Tesoriero & Anor [2007] NSWSC 54

Reported Decision : (2007) ANZ Conv R 290

New South Wales Supreme Court

CITATION : Tesoriero & Anor v Tesoriero & Anor [2007] NSWSC 54

HEARING DATE(S) : 29 & 30 January 2007

JUDGMENT DATE : 9 February 2007

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Judgment for Plaintiffs.

CATCHWORDS : RESULTING TRUST – whether presumption rebutted by evidence of actual intention by Plaintiffs to make a gift. - UNCLEAN HANDS – Plaintiffs created resulting trust to avoid capital gains tax and land tax – whether purpose of Plaintiffs has immediate and necessary relation to equity sued for.

LEGISLATION CITED : Real Property Act 1900 (NSW) – s.57(2)

- Meyers v Casey (1913) 17 CLR 90 CASES CITED : - Nelson v Nelson (1995) 184 CLR 538 - Official Trustee in Bankruptcy v Tooheys Ltd (1993) 29 NSWLR 641 - Tonkin v Cooma-Monaro Shire Council [2006] NSWCA 50

Robert Tesoriero – First Plaintiff PARTIES : Marjorie Tesoriero – Second Plaintiff Lee-Ann Vicki Tesoriero – First Defendant Frank Boskovic – Second Defendant

FILE NUMBER(S) : SC 4429/04

COUNSEL : L.J. Ellison SC – Plaintiffs S.A. Sirtes – First Defendant

Dormers Legal – Plaintiffs SOLICITORS : De Losa Burke & Elphick – First Defendant Adrian Holmes – Second Defendant (no appearance)

4429/04 Tesoriero & Anor v Tesoriero & Anor

JUDGMENT 9 February, 2007

Introduction

1 The First Defendant ("Mrs Boskovic") was formerly the de facto wife of the Plaintiffs' son, Mr John Tesoriero ("John"). She is the sole registered proprietor of a residential property in Legana Close, Fingal Bay ("the subject property"). It is not now in dispute that the whole of the acquisition cost of the subject property was provided by the Plaintiffs. 2 The subject property was purchased in July 2003. The relationship between Mrs Boskovic and John broke down in August 2003. Mrs Boskovic continued living in the property. In January 2005 she married the Second Defendant, who now lives in the property with her. 3 The Plaintiffs claim that the subject property, having been acquired wholly with their money, is held by Mrs Boskovic upon a resulting trust for them. They seek a declaration to that effect, an order that Mrs Boskovic transfer the land to them, an order for possession as against both Defendants, an account of mesne profits and damages. 4 By her Further Amended Defence, as modified by final submissions, Mrs Boskovic says that: