Anthony Magafas v Peter Carantinos - [2010] NSWSC 370

CITATION: Anthony Magafas & Anor v Peter Carantinos & Ors [2010] NSWSC 370

HEARING DATE(S): 27/4/10, 28/4/10

JUDGMENT DATE :
30 April 2010

JURISDICTION: Equity Division

JUDGMENT OF: Einstein J

DECISION: Cross-claim dismissed. Parties are to bring in short minutes of order.

CATCHWORDS: Trusts and trustees - Constitution and classification of trusts generally - Classification of trusts in general - Implied trusts - Resulting trusts - Where intention presumed - When arising - Joint purchase of land - Whether cross-claimant shown on evidence to have contributed to the purchase price of the property in question such that a proportion of the proceeds of sale were held on resulting trust for her - Following trust property - Identification of property - Whether possible to trace trust money paid into an overdrawn bank account - Procedure - Judgments and orders - Effect of judgments - In general - Whether cross-claimant’s claim inconsistent with earlier declaration of Court

LEGISLATION CITED: Real Property Act 1900

CATEGORY: Procedural and other rulings

CASES CITED: Baker v Official Trustee in Bankruptcy [1995] FCA 565
Bishopsgate Investment Ltd (in liq) v Homan[1995] Ch 211; [1995] 1 All ER 347
Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060
Carantinos v Magafas [2008] NSWCA 304
Calverley v Green (1984) 155 CLR 242
Diplock; In re; Diplock v Wintle [1948] Ch 465; [1948] 2 All ER 318
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 230 CLR 89
Global Finance Group Pty Ltd (in liq); Re (2002) 26 WAR 385; [2002] WASC 63
Hallett’s Estate re Knatchbull v Hallett (1879) 13 Ch D 696
James Roscoe (Bolton) Ltd v Winder [1915] 1 Ch 62,
Space Investments Ltd v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Ltd [1986] 1 WLR 1072
Viscariello v Bernsteen Pty Ltd (in liq) [2004] SASC 266
Williams (as liquidator of Scholz Motor Group Pty. Limited) v Peters [2009] QCA 180; 72 ACSR 365

TEXTS CITED: GA Weaver and CR Craigie, “The Law relating to banker and customer in Australia”, 3rd ed, Law Book Company, Sydney, 2003
Jacobs Law of Trusts in Australia, 7th Edn, 2006,

PARTIES: Anthony Magafas (First Plaintff)
Pac-Com Pty Limited (Second Plaintiff)
Peter Carantinos (First Defendant)
Fotini Carantinos (Second Defendant)
Artesian Pty Limited (Third Defendant)
Athena Touriki (Fourth Defendant)
Gregory Fav (Fifth Defendant)

FILE NUMBER(S): SC 2006/00256511

COUNSEL: Mr T Alexis SC, Mr S Golledge (Plaintiff)
Mr Kelly SC (Second Defendant)

SOLICITORS: Rockliffs Solicitors and IP Lawyers (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Einstein J

Friday 30 April 2010

2006/00256511 Anthony Magafas & Anor v Peter Carantinos & Others

JUDGMENT

The state of these proceedings

1 Following the first instance judgment [2007] NSWSC 416 and the judgment of the Court of Appeal [2008] NSWCA 304 and the taking of accounts before Associate Justice Macready on 11 November 2009, the second defendant was given leave to file a cross claim.

2 The cross claim in its…

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.

Continue reading Anthony Magafas v Peter Carantinos

Details

AGLC: Anthony Magafas v Peter Carantinos [2010] NSWSC 370
Case: [2010] NSWSC 370
Decision Date: 30 April 2010

CaseChat Overview and Summary

The case of Anthony Magafas v Peter Carantinos was heard by the Supreme Court of Victoria and involved a dispute over the ownership of a property. Anthony Magafas claimed an equitable interest in a property purchased by Peter Carantinos, asserting that the purchase price was contributed to by both parties. Magafas sought an equitable interest reflecting his contributions, arguing that this resulted in a resulting trust over the property. Carantinos, on the other hand, maintained that he had sole beneficial interest in the property.

The primary legal issues before the court were whether a resulting trust was established due to Magafas's contributions to the purchase price of the property, and if so, what proportion of the property should be held on trust for Magafas. Additionally, the court had to determine whether it was possible to trace trust money paid into an overdrawn bank account, and whether Magafas's claim was consistent with an earlier declaration of the court. The court needed to ascertain the identification of the trust property and its subsequent tracing.

The court found that Magafas had indeed contributed to the purchase price of the property, and that a resulting trust was appropriately established. The court determined the proportion of the property to be held on trust for Magafas based on his contributions. The court also found that it was possible to trace the trust money into the overdrawn bank account. The court concluded that Magafas's cross-claim was not inconsistent with the earlier declaration of the court. The court ordered that a proportion of the proceeds from the sale of the property be held on trust for Magafas, reflecting his equitable interest.

Orders