Campana v Censori

Campana v Censori [2023] VSC 502
Supreme Court of Victoria
McDonald J
Trusts – in 2005, Campana was involved in the development of two adjoining lots in Brunswick as an owner-builder – he claimed that he was told that he would be unable to obtain building permits for both properties owing to a restriction on permits for owner-builders, and that, to circumvent this permit restriction, he entered into an agreement with his sister, Censori, under which she would be the registered proprietor of one of the lots, and hold the property for his benefit – he alleged that he and Censori had signed a trust deed to give effect to this agreement in 2005, but that all copies of the trust deed had since been destroyed – Censori denied ever signing a trust deed, and claimed that she paid the entire purchase price for that lot – Campana commenced proceedings, seeking a declaration of trust over the property owned by Censori – he alleged there was an express trust, or, in the alternative, a resulting or constructive trust – held: deed estoppel does not prevent a party from contradicting facts recited in a deed for all purposes, but only in an action on the deed to enforce rights arising thereunder – deed estoppel arising from the transfer having effect as a deed therefore did not prevent Campana from leading evidence disputing Censori’s claim that she bought the lot in her own name using her own funds – the Court accepted the evidence that Campana and Censori entered into a deed of trust prior to the transfer of the property to Campana – however, Campana’s claim based on an express trust failed because Censori was not the owner her lot when the trust deed was executed – any rights conferred upon her as a nominee did not constitute a distinct vested or contingent proprietary interest in the lot – Campana did not have an interest under a resulting trust arising from the failure of the express trust because he did not hold any beneficial interest Censori’s lot that could revert to him upon the failure of the express trust – Campana did not have an interest under a resulting trust arising from his contribution to the purchase of Censori’s lot, or his voluntary transfer of the property to Censori – although the express trust deed failed, both Campana and Censori intended to create a trust, and so a presumption of resulting trust could not arise – by entry into the trust deed, Campana and Censori formed a common intention that Campana would at all times be the beneficial owner of the lot – Campana had detrimentally relied on this common intention by paying the entire purchase price for the lot – Censori had engaged in equitable fraud by failing to honour the common intention of the parties – Campana had a beneficial interest in the lot pursuant to a common intention constructive trust – Censori had held the lot as trustee for Campana’s benefit from 2005 – Censori was liable to account to Campana for over $180,000 received by her as rental income from the lot – parties to make submissions on the form of order to give effect to the Court’s judgment.
Campana