Assaf v Kostrevski; Saleh v Kostrevski

In *Assaf v Kostrevski; Saleh v Kostrevski* [1998] NSWCA 274, the New South Wales Court of Appeal considered appeals arising from a single trial concerning a dispute over the ownership of a property. The primary dispute involved competing claims to the beneficial ownership of a property located at 123 Smith Street, Parramatta, which was registered in the name of Mr Kostrevski. The appellants, Mr Assaf and Mr Saleh, claimed they had contributed to the purchase price of the property and were therefore entitled to a beneficial interest.

The Court of Appeal was required to determine whether the trial judge had erred in finding that Mr Kostrevski held the property on trust for himself alone, and whether the evidence supported the appellants' claims of a resulting or constructive trust. Specifically, the court had to assess whether the contributions made by Mr Assaf and Mr Saleh were intended to be gifts or loans, or whether they were made with the intention of acquiring a beneficial interest in the property.

The Court of Appeal upheld the trial judge's findings, concluding that the evidence did not establish that Mr Assaf or Mr Saleh had contributed to the purchase price with the intention of acquiring a beneficial interest in the property. The court applied the principles relating to resulting trusts, which require proof of intention to acquire a beneficial interest at the time of contribution. It found that the payments made by the appellants were either gifts or loans, and there was no evidence to support the existence of a constructive trust.

The appeals were dismissed, and the orders of the trial judge were affirmed.