Ciaglia v Ciaglia [2010] NSWSC 341

New South Wales Supreme Court

CITATION : Ciaglia v Ciaglia [2010] NSWSC 341 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 21-23 October 2009 and 20 November 2009

JUDGMENT DATE : 28 April 2010

JURISDICTION : Equity

JUDGMENT OF : White J

DECISION : Direct counsel for the plaintiff to bring in short minutes of order in accordance with reasons.

CATCHWORDS : EQUITY – plaintiff transferred interest in land to deceased for sum described as consideration for transfer – true agreement was a loan and mortgage - whether plaintiff entitled to equity of redemption on repayment of loan – whether executrix held land on constructive trust for plaintiff - EQUITY – plaintiff's claim under constructive trust not barred by Limitation Act 1969, s 14, s 42 or s 27 – defence of laches not made out –purpose of transaction to frustrate enforcement of maintenance orders by family court – insufficient nexus with equity sued for – defence of unclean hands not made out - REAL PROPERTY – EQUITY – which of s 23C or s 54A of Conveyancing Act 1919 relevant to enforcement of constructive trust under executed agreement –principle that reliance on s 23C and s 54A to deny true nature of transaction is to use the statute as an instrument of fraud – oral evidence admissible to establish true nature of transaction –principle applicable to mortgages – whether reliance on defence as note or memorandum of agreement permitted for s 54A – sufficient acts of part performance by plaintiff – whether repayments of principal and payment of interest can be relied on as acts of part performance – proving acts of part performance by admissions of acts - REAL PROPERTY – EQUITY – whether personal equity exception to indefeasibility applies – deceased held land subject to constructive trust for plaintiff – executrix personally bound by same trust as deceased's legal representative and under Probate and Administration Act, s 45 – executrix lodged notice of transmission claiming entitlement as beneficiary under will – fraud not pleaded - registration of title in executrix does not defeat enforcement of constructive trust