2015 MULSS WOMEN*’S MOOT
COMPETITION PROBLEM
Sasha (Appellant) v Bruno (Respondent)
1. Sasha and Bruno met at law school in 2004 when they participated together in the LSS Witness
Examination competition. Although they lost the grand final, they became very good friends and
catch up for coffee or chat on the phone every day. Sasha was fortunate enough to obtain a
graduate position with a top tier law firm and, although sleep-deprived and sick of her office,
relishes her career and the attached salary. Sasha works very long hours because she is keen to
be promoted as soon as possible and also to earn as much as possible so as to invest in property
and retire early.
2. Bruno was not so fortunate, having spent much of his final year trying desperately to succeed on
The Voice. Although he made it through the first round he was then eliminated and, as a result,
did not do well in his final year subjects. Bruno became disillusioned with the law after not
getting any interviews for graduate positions and started working in retail. His salary is not as
high as Sasha’s but he values his spare time and feels that his quality of life is better. He has a
very active social life and likes to party hard.
3. When Bruno suddenly loses his job and can no longer pay his rent, Sasha proposes to him that
he move in with her. Sasha has just purchased a two bedroom inner-city apartment, subject to a
large mortgage held by FierceBank Ltd. Seeing Bruno downcast, Sasha says: “Why don’t you
move in with me for a while, at least until you find another job or until we get sick of each
other? You practically live here anyway and I could really do with someone to clean up around
here and to feed the cat when I work late. We’re such good friends I’m sure we will make it
work.”
4. Bruno is actually madly in love with Sasha and can’t think rationally when she is around. Sasha
is unaware of Bruno’s feelings for her but Bruno hopes that she will eventually realise that he is
the one. He agrees to Sasha’s proposal immediately, even adding “I could fix things up a bit
around here – make it nice with a fresh set of paint and maybe some built-in book shelves.” In
fact he gets so carried away with decorating that he spends his entire savings on items such as
new carpet and cornices. Sasha doesn’t really notice the improvements because she is entirely
focused on her work, even on weekends. However if Bruno points out to her the things he has
done, she does sometimes say absent-mindedly (and out of a feeling of guilt) “imagine what this
place will look like in five years time if you continue all this work! You will have earned a share
in the title!”
5. Bruno isn’t fussed about spending his money on such things because he believes that his
relationship with Sasha is rock-solid and that she wouldn’t treat him badly even if she started a
relationship with someone else. He remembers in the back of his mind something he learnt in
first year at law school about agreements in relation to apartments needing to be typewritten but
he can’t be bothered following this up because it brings back the trauma of his elimination from
The Voice. He can’t help thinking about the day when Sasha will transfer an interest in the
apartment to him in recognition of his hard work and effort. At one point Bruno investigates
investing in an outer-suburb apartment but decides not to do so due to his expectation of sharing
an interest in Sasha’s apartment. Sasha is aware that Bruno turns down this investment but is
unaware that Bruno is envisaging that she will transfer part of the apartment to him.
6. After two years, Sasha reveals to Bruno that her late nights out weren’t all at work and that she
has in fact met ‘Mr Right’. She shows Bruno a massive diamond ring on her finger and tells him
that she is selling the apartment, which has doubled in value, partly due to the property boom
but partly also due to Bruno’s decorating flair. Bruno has been so caught up in his dream of
settling down with Sasha, that he hasn’t been keeping account of his money and has regularly
spent it on groceries for both of them, as well as on decorating the apartment. Sometimes he
even opens Sasha’s mail and pays electricity bills and council rates. Once he paid some bank
fees associated with the mortgage.
7. Bruno’s sadness quickly turns to anger and he seeks legal advice as to what rights, if any, he
may have to the proceeds of the sale of the apartment (after FierceBank is repaid). Sasha denies
liability and Bruno therefore sues.
8. At first instance in the Supreme Court of Victoria Bruno is awarded a half share in the apartment
on the basis of equitable estoppel and part performance. Bruno concedes that there is no
enforceable contract due to requirements of the Instruments Act 1958 (Vic).
9. Sasha appeals to the Court of Appeal on the following grounds:
i. That it is not unconscionable for her to deny Bruno an interest in the apartment.
ii. That the strict test for part performance has not been satisfied.
10. Bruno’s counsel rules out arguing a common intention constructive trust based on Oglivie v
Ryan.
Relevant Cases (non-exhaustive):
•
Commonwealth v Verwayen (1990) 170 CLR 394.
•
Giumelli v Giumelli (1999) 196 CLR 101.
•
Je Maintiendrai Pty Ltd v Quaglia (1980) 26 SASR 101.
•
Khoury v Khouri (2006) 66 NSWLR 241.
•
Maddison v Alderson (1883) 8 App Cas 467.
•
McBride v Sandland (1918) 25 CLR 69.
•
Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475.
•
Sidhu v Van Dyke [2014] HCA 19.
•
Steadman v Steadman [1976] AC 536.
•
W v G (1996) 20 Fam LR 49.
•
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.