Alexei Poezd v Evgueni Poezd - [2005] NSWSC 899

CITATION:
Alexei Poezd & Ors v Evgueni Poezd [2005] NSWSC 899

HEARING DATE(S): 22.03.04; 23.03.04; 24.03.04; 25.03.04; 26.03.04; 27.09.04; 28.09.04; 29.09.04; 30.09.04; 01.10.04; 07.03.05; 08.03.05; 09.03.05; 10.03.05

JUDGMENT DATE :

9 September 2005

JUDGMENT OF:
Nicholas J

DECISION:
para 118

CATCHWORDS:
TRUSTS - constructive trusts – parents and brother overseas sent money to defendant in Australia to buy family home - property purchased and registered in name of defendant only – parents and brother emigrated to Australia and resided together with defendant in the home - subsequent breakdown in family relations - whether property held on trust by defendant for the parties as tenants in common - whether common intention to give money to defendant for purpose of purchasing property for the family, or as unconditional payment for services rendered by him to family company - property held on constructive trust by defendant for the parties as tenants in common in equal shares - no question of principle - turns on own facts

CASES CITED:
Baumgartner v Baumgartner (1987) 164 CLR 137
Bhana v Bhana [2002] NSWSC 117
Green v Green (1989) 17 NSWLR 343
Watson v Foxman (1995) 49 NSWLR 315

PARTIES:
Alexei Poezd - first plaintiff
Dmitri Poezd - second plaintiff
Nina Poezd - third plaintiff
Evgueni Poezd - defendant

FILE NUMBER(S):
SC 2424/02

COUNSEL:
D E Baran - plaintiffs
P Menadue - defendant

SOLICITORS:
Zelden Solicitors - plaintiffs
Shields Lawyers - defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas J

9 September 2005

2424/02 Alexei Poezd & Ors v Evgueni Poezd

JUDGMENT

1 His Honour: In these proceedings the plaintiffs claim to be beneficially entitled to the property at No. 29 Eurimbla Avenue, Randwick (the property) as tenants in common in equal shares with the defendant. The defendant is the registered proprietor of the property. They also claim an interest of 75% of the proceeds of sale of the unit No. 29/37 Dangar Place, Chippendale (Chippendale unit) of which the defendant was the registered proprietor, such proceeds being presently held in trust to abide the outcome of these proceedings.

2 The plaintiffs seek a declaration that the property is held on a constructive trust for the plaintiffs and defendant as tenants in common in equal shares, an order that trustees for sale of the property be appointed, and an order that 75% of the proceeds of sale be divided equally between the plaintiffs. Similar relief is sought in respect of the proceeds of sale of the Chippendale unit.

3 Alternatively, the plaintiffs seek restitution for unjust enrichment, or such other equitable relief as the court considers appropriate in the circumstances.

4 The defendant denies the claims and says that the property and the Chippendale unit were bought by him with his own money.

5 The first plaintiff (Alexei) and the defendant are the sons of the second plaintiff (Dmitri) and the third plaintiff (Nina). All were born and lived in Russia for a long time. From 1969 they lived together…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 899
Decision Date: 9 September 2005

CaseChat Overview and Summary

The case of Alexei Poezd v Evgueni Poezd was heard in the Federal Circuit Court of Australia. The dispute between the parties involved the ownership of a family home purchased in Australia by Evgueni, who was residing there at the time. Alexei, along with his parents, had sent money to Evgueni with the expectation that it would be used to buy a family home. The property was registered solely in Evgueni's name, and the family members later emigrated to Australia to reside together. However, the relationship between the family members deteriorated, leading to the current legal action. The central issue before the court was whether Evgueni held the property on trust for the family members as tenants in common, and if there was a common intention for the money sent to be used for purchasing the property, or if it was intended as an unconditional payment for services rendered by Evgueni to a family company.

The court considered whether there was a common intention for the property to be held jointly, which would give rise to a constructive trust in favour of the parties as tenants in common. The court found that there was indeed a common intention for the property to be held for the benefit of all family members. Evgueni had received money from his parents and brother with the clear understanding that it would be used to purchase a home for the family. The court rejected the argument that the money was an unconditional payment for services rendered, as there was no evidence to support this contention. The court held that the property was held on a constructive trust for the parties as tenants in common in equal shares. The case turned on its own facts and circumstances, with no overriding question of principle involved.

The final orders of the court were that the property was to be held on trust for Alexei, his parents, and Evgueni as tenants in common in equal shares. This outcome recognised the common intention of the parties and the reliance placed on Evgueni to use the money for the family's benefit. The court's decision provided a just and equitable resolution to the dispute, reflecting the family's original intentions and ensuring that all parties received a fair share of the property.

Orders