Mainieri & Anor v Cirillo

(2014) 47 VR 127; [2014] VSCA 227

Victorian Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Parol evidence rule
3. › Oral agreement preceding written instrument
4. › Whether written instrument sole repository of agreement
5. › Whether evidence of prior oral arrangement admissible
6. › Collateral warranty
7. › Whether oral statement constituted collateral warranty inducing entry into written agreement
8. › Masters v Cameron classification
1. Equity
2. › Constructive trust
3. › Equitable lien or charge
4. › Contribution to property on faith of assurance of indefinite residence
5. › Breakdown of domestic relationship
6. › Whether equitable lien or charge available where constructive trust inappropriate
7. › Appropriate form of equitable relief
1. Equity
2. › Estoppel
3. › Proprietary estoppel
4. › Expenditure of money on property of another on faith of assurance
5. › Unconscionability
6. › Whether departure from assumption unconscionable where plaintiff changed position to detriment
1. Costs
2. › Indemnity principle
3. › Conditional costs agreement
4. › Liability to pay solicitor's fees contingent on obtaining costs order
5. › Whether contingent liability sufficient to satisfy indemnity principle
6. › Legal Profession Act 2004 (Vic), s 3.4.27

Quick Take

A party's liability to pay solicitor's fees that is contingent on obtaining a costs order (a condition precedent) is sufficient to satisfy the indemnity principle, and the application of the indemnity principle does not depend on the distinction between a condition precedent and a condition subsequent. Where a person expends money on the property of another on the faith of an assurance of indefinite residence, and the arrangement breaks down, the appropriate remedy is an equitable lien or charge rather than a constructive trust, unless the circumstances require the latter.