Australia, Aug. 23 -- New South Wales Land and Environment Court issued text of the following judgement on July 23:
1. These proceedings concern a dispute between family members over property at 11 Robinson Street, Eastlakes, New South Wales, being lots 28 and 30 in Deposited Plan DPXXX, and a dispute between father and daughter over the entitlement to the proceeds of sale of the rent roll of a real estate business founded by the father and in which the daughter claims to have worked without pay on the basis of certain promises.
2. Mr Paul Penya, and his former wife Ms Therese Penya, are the registered proprietors of the Eastlakes property as tenants in common. They purchased the property in October 1984, and lived there together with their daughter Ms Paula-Marie Penya until 1995 when Paul moved out of the property following the breakdown of the marriage between himself and Therese. Therese and Paula-Marie continued living in the property. In July 2004, Paula-Marie married Mr Andrea Pizzimento, who then moved into the property with Therese and Paula-Marie. Andrea and Paula-Marie continued living in the property with Therese after the birth of their children in August 2013 and November 2014.
3. Paul and Therese are the directors and shareholders of Matra Real Estate Pty Limited, which operated a real estate business in Matraville at all times relevant to these proceedings. Paul was the principal licensee in charge. Paula-Marie worked in the business from March 1996 until its rent roll was sold in 2018.
4. On 1 February 2023, Paul commenced proceeding no. 2023/33949 in this Court seeking an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for the sale of the Eastlakes property (the s 66G proceedings).
5. On 4 May 2023, Paula-Marie commenced proceeding no. 2023/143366 against Paul and Therese claiming that her parents had promised to give her the Eastlakes property and the Matra Real Estate business in return for her working in the business without being paid a wage. Paula-Marie claims:
1) a declaration that Paul and Therese hold their interests in the Eastlakes property on constructive trust for her, and an order requiring them to transfer their interests in the Eastlakes property to her; and
2) an order that Paul account to her for the proceeds of sale of rent roll of the business.
6. Paula-Marie's claims rely on the doctrine of proprietary estoppel by encouragement or, alternatively, common intention constructive trust or a constructive trust following the failure of an alleged joint endeavour. During closing submissions on the final day of the hearing, Paula-Marie abandoned her pleaded claim relying on the doctrine of promissory estoppel.
7. I will adopt the parties' convention of referring to the proceedings commenced by Paula-Marie as the trust proceedings.
8. On 2 June 2023, Therese filed a submitting appearance in the trust proceedings, save in respect of costs.
9. Therese offers no opposition to the orders sought by Paul in the s 66G proceedings if Paula-Marie's claims in the trust proceedings are not successful.
10. On the first day of the hearing, I acceded to Paula-Marie's application to be joined as the second defendant to the s 66G proceedings.
11. For the reasons that follow, I have determined that Paula-Marie is not entitled to the relief claimed in the trust proceedings, and that orders should be made under s 66G of the Conveyancing Act for the appointment of trustees for sale of the Eastlakes property. I have considered all of the parties' written and oral submissions in arriving at those conclusions.
12. In these reasons, I have adopted the parties' convention of referring to themselves and to one another by their first names in order to avoid confusion by reason of their common surname. I have extended that convention to other family members who gave evidence in the proceedings. No disrespect is intended.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1982fdbe44b1794e2b87f7b0)
Disclaimer: Curated by HT Syndication.
