Reitano v Reitano

[2012] NSWSC 1127

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. CONTRACT - oral contract - evidence of contract - subsequent conduct admissible to prove existence of contract
1. TRUSTS AND TRUSTEES - oral declaration of trust - subsequent conduct admissible to prove existence of trust
1. CONTRACT - intention - contracts between family members - no presumption against intention - seriousness and finality of circumstances
1. EQUITY - part performance - answer to reliance on Sections 54A and 23C of the Conveyancing Act - conduct must be unequivocally referable to contract of general nature of that alleged - multiple acts of part performance unequivocally referable - sole possession and exclusive control for 25 years - no alternative agreement alleged

Multiple acts of part performance — including sole possession and exclusive control for 25 years, payment of all rates, taxes, repairs and improvements, and contribution to the purchase price of a separate property — may collectively be unequivocally referable to a contract of the general nature alleged, even where no single act suffices alone.
Subsequent conduct, including admissions made years after the alleged agreement, is admissible to prove the existence of both an oral contract to transfer land and an oral declaration of trust.
In family disputes, there is no presumption against intention to create legal relations; the seriousness and finality of the circumstances, including the subject matter and the parties' subsequent conduct over many years, may establish the requisite intention.