In May 2024, Judge Peden of the Supreme Court of NSW delivered judgment in a dispute between a mother and her son: Fiorenza v Fiorenza [2024] NSWSC 549.
Irene Fiorenza owned 90% and her son Matthew 10% of a property in Cammeray. At the time of the court hearing, Matthew had lived at the property rent free from June 2016.
Irene was seeking a court order for the appointment of trustees for the sale of the property. Matthew opposed her order on the basis that Irene had agreed to transfer the whole of the property to him.
The property was originally owned by Irene’s parents and it was where she grew up. In 2011, Irene at age 60 was looking to purchase a commercial property at Willoughby for $1,150,000.
Irene purchased the property through Matthew. The evidence was that the arranging of the loan and the dealings with the property were all done by Irene. Irene collected all of the rents and treated the property as her own.
Following the death of her parents the Cammeray property was transferred to Irene as to 90% and 10% to Matthew. There was family provision litigation commenced by Irene’s sister that was ultimately settled by a payment of about $750,000. The settlement was funded by the sale of the Willoughby property. When the Willoughby property was sold the whole of the proceeds were transferred to Irene by Matthew.
Matthew framed his claim for the Cammeray property in a number of ways. The first was that Irene represented to him that if he agreed to sell the Willoughby property to fund the family provision litigation she would transfer the Cammeray property to him.
He also claimed that there were a number of conversations during which Irene said to him in relation to the Cammeray property: “it’s yours anyway“ or “…as soon as the court case is over I’ll transfer Cammeray to you.“
Finally, Matthew relied on the fact that he moved into Cammeray and made improvements.
Her Honour held that the Willoughby property was held by Matthew for Irene. This finding was based on the evidence that Irene dealt with the Willoughby property as her own and Matthew raised no objection to this. At all times Irene indemnified Matthew from any possible cost because he held the property for her.
As to the later conversations Her Honour found that statements like “it’s yours anyway” do not give rise to a representation that can be relied on nor amounted to a promise. Her Honour conceded that Irene may have spoken about leaving the Cammeray property to Matthew but the evidence was not sufficient for Matthew to succeed in his claim.
Her Honour found that the improvements done by Matthew were exaggerated by him and were consistent with someone who lived at the property for that length of time and owned 10% of the property.
Her Honour appointed trustees for the sale of the property, rejected all of Matthew’s claims and awarded costs to Irene.
This decision highlights the need for careful documentation of arrangements in the family and when disputes arise the necessity to have experienced representation that understands the law and can distil the facts for presentation to the court.
