Gazzola v Gazzola [1990] HCA 13; (1990) 92 ALR 45 (11 April 1990)

HIGH COURT OF AUSTRALIA

GINO GAZZOLA AND ANOR v. GINESTA GAZZOLA AND ORS
F.C. 90/014

High Court of Australia
Brennan(1), Deane(1), Dawson(1), Toohey(1) and Gaudron(1) JJ.

CATCHWORDS

HEARING

Canberra
11:4:1990

DECISION

BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ. These proceedings involve an unhappy dispute between the members of a South Australian family. The appellants, Gino Gazzola and Veronica Gazzola, are husband and wife. The respondents are, respectively, the mother, the brother and the sister of Gino Gazzola. In the proceedings, the appellants seek declaratory and other relief against the mother. It is alleged that she holds part of her interest in some parcels of land in South Australia upon trust for Gino Gazzola and the second respondent (the brother) who supports his mother's denial of such a trust. The subject land, together with other land, was used over the years by family partnerships which altered to reflect the death of the father and, subsequently, the marriage of the appellants.

2. The main consideration which led to the grant of special leave to appeal was that the issues included questions about the nature and effect of "attributable blame" or "unconscionable conduct" on the part of a plaintiff who would otherwise be entitled to a declaration that property is held upon trust for him or her. It became apparent, in the course of argument of the appeal, that those questions only arise in the present case if the appellants succeed in showing either that there was a common intention among the parties to create a trust or that the facts of the case are such that, subject to any question of the existence or effect of any "blame" or "unconscionable conduct" on the part of one or both of the appellants, a constructive trust arose or should be imposed. The appellants contend that a constructive trust arose or should be imposed by reason of unconscionable conduct on the part of the mother or on the ground of unjust enrichment or estoppel. Neither the learned primary judge nor the members of the Full Court of the Supreme Court of South Australia found either a common intention to create a trust or that any relevant trust existed or should be imposed.

3. Having had the benefit of full and careful argument, we have come to a firm conclusion on the particular facts of the case. That conclusion is that those facts preclude a finding of a common intention to create a trust and do not give rise to, or warrant the imposition of, a constructive trust upon any of the grounds for which the appellants contend. That being so, the appeal must necessarily fail without there being any need to consider the question of the existence or effect of "blame" or "unconscionable conduct" on the part of the appellants, or either of them. In these circumstances, the appropriate course is to revoke the grant of special leave to appeal.

ORDER

Special leave to appeal revoked.

Appeal struck out.

Appellants to pay respondents' costs.