Anthony Magafas & Anor v Peter Carantinos & Ors

[2007] NSWSC 965

CITATION:	Anthony Magafas & Anor v Peter Carantinos & Ors [2007] NSWSC 965
HEARING DATE(S):	24/8/07
JUDGMENT DATE :	30 August 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Einstein J
DECISION:	Orders and Declarations to be made.
CATCHWORDS:	Supplementary reasons for orders
LEGISLATION CITED:	Uniform Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
PARTIES:	Anthony Magafas (First Plaintiff) Pac-Com Pty Limited (Second Plaintiff) Peter Carantinos (First Defendant) Fotini Carantinos (Second Defendant) Artesian Pty Limited (Third Defendant)
FILE NUMBER(S):	SC 2670/06
COUNSEL:	Mr T Alexis SC, Mr S Golledge (Plaintiffs) Mr J Kelly SC, Mr A Bowen (Defendants)
SOLICITORS:	Rockliffs (Plaintiffs) Munro Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

30 August 2007

2670/06 Anthony Magafas & Anor v Peter Carantinos & Others

JUDGMENT

Decision in relation to orders to be made following the judgment delivered on 21 August 2007

1 Close submissions have been addressed to the Court by the parties in relation to the appropriate form of the declarations and orders to be made.

2 The orders to be made are set out below. The reasons for rejecting the first and second defendants’ submissions as to the appropriate form of orders to be made are now given.

Declaration 4

3 I reject the proposition that came forward from the first and second defendants submitting that declaration 4 in the general formal orders proposed in the judgement be varied and for consequential changes to declarations 5, 6 and 7 to be made.

4 Declaration 4 accurately reflects the findings of the Court in the principle judgment at [80] and [90] – that 43 Riverside Crescent “was purchased on trust for the partnership or joint venture between Mr Magafas and Mr Carantinos.” This finding has nothing to do with Mrs Carantinos and the account that the first plaintiff unsuccessfully sought against her.

5 The result of the further judgment of the Court delivered on 21 August, 2007 is that Mrs Carantinos had no notice of the existence of the trust when she obtained her legal interest in the property and thus, has no liability to account for the proceeds of sale and the profits arising from the sale that she may have received. It does not follow that the first defendant’s liability to account to the first plaintiff in relation to 43 Riverside Crescent is to be limited to the proceeds/profits that may be said to be only attributable to his legal interest to one half of the property as a tenant in common. Such a result would mean that only one half of the property was held in trust for the partnership or joint venture and this was not the finding of the Court.

6 The Court rejected the first plaintiff’s application for the first defendant to pay equitable compensation with respect to Mrs Carantinos’ legal interest in the property, in the further judgment at [23]. The reasoning at [22] is that any monies that Mrs Carantinos received from the sale of 43 Riverside Crescent are to be brought to account by the first Defendant and he is properly accountable to the first plaintiff for them.

7 Further, the finding of the Court in the principal judgment at [82] is to be noted; Mr Carantinos represented to Mr Magafas that notwithstanding legal title to 43 Riverside Crescent being taken in Mrs Carantinos’ name (itself a misrepresentation) this did not reflect any beneficial ownership of that property by her. Again, the effect of the further judgment is that her legal title, as a tenant in common, cannot be impugned, but there is no finding that she held any beneficial interest in the property to the exclusion of the partnership or joint venture.

Declaration 5

8 The Court also found in the principal judgment at [111] that “the two shares acquired by Mr Carantinos in Artesian were acquired on trust for Pac-Com.” Mrs Carantinos has never advanced a claim to the effect that her husband held those shares or some proportion of them in trust for her. Indeed, such a claim would have been totally inconsistent with the first defendant’s position at the trial, which was that he beneficially owned all of those shares in Artesian at all times. The amendment proposed by Mrs Carantinos does not reflect the finding of the Court and is rejected, particularly as no such claim has been made or litigated in the proceedings.

9 Similarly, there was no claim by Mrs Carantinos that a portion of the sale proceeds of 43 Riverside Crescent be traced into a claim against the shares subsequently acquired by the first defendant in Artesian. The principal judgment at [94] - [96], [107] and [108] contains the relevant findings. Contrary to Mrs Carantinos' submissions, those findings do not support a declaration that the use by the first defendant of funds from the joint account inevitably establishes a proprietary claim with respect to the shares: it may well be the case that that any real complaint that she may have about this is against Mr Carantinos.

10 For those reasons the principal complaint by the first and second defendants concerning the form of the declarations is rejected.