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Besser v Kermode

Besser v Kermode

Case [2011] NSWSC 174 17 March 2011

Equitable Charges

Constructive Trust

Non-Financial Contributions

Adjustments for Contributions

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Menka Tasevska v Vlado (Larry) Tasevski & Anor [2011] NSWSC 174
Hearing dates: 7, 8 and 9 March 2011
Decision date: 17 March 2011
Jurisdiction: Equity Division
Before: Einstein J
Decision:
1. The plaintiff is to hold an equitable lien over [...] for the amount of $85,697.46 plus interest accrued from 20 April 2009 at the prejudgement interest rate.
2. The parties will be heard on costs.

Catchwords: Equity
Equitable charges
Equitable lien
Constructive trust
"Windfall Equity"
Equitable Estates and Interests
Non-financial contributions
Breakdown in relations
Whether breakdown occurred "without attributable blame"
Parents sell their own home and place the net proceeds with their son and daughter-in-law to use to build a house for them all to live in
Whether the parents were promised that their names would be placed on the title as co-owners of the property
Parents not fluent in reading English
Relief
Adjustments for contributions
Legislation Cited: Contracts Review Act 1980 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited: Anson v Anson [2004] NSWSC 766
Baumgartner v Baumgartner (1985) 2 NSWLR 406
Baumgartner v Baumgartner (1987) 164 CLR 137
Bennett v Horgan (Supreme Court of New South Wales, Bryson J, 3 June 1994, unreported)
Bryson v Bryant (1992) 29 NSWLR 188
Blomley v Ryan (1956) 99 CLR 362
Bridgewater v Leahy (1998) 194 CLR 457
Calverley v Green (1984) 155 CLR 242
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Commonwealth v Verwayen (1990) 170 CLR 394
Darrington v Caldbeck (1990) 20 NSWLR 212
Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413
Giumelli v Giumelli (1999) 196 CLR 101
Henderson v Miles (No 2) [2005] NSWSC 867
Higgs v Thompson bht The Protective Commissioner [2006] NSWSC 920
Hill v Hill [2005] NSWSC 863
Irvine v Irvine [2008] NSWSC 592
Kriezis v Kriezis [2004] NSWSC 167
McKay v McKay [2008] NSWSC 177
Mighell and Anor v Gargoura and Ors [2009] NSWSC 248
Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds (1985) 160 CLR 583
Palinkas v Palinkas [2009] NSWSC 92
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41
Ryan v Dries [2002] NSWCA 3
Small v Gray [2004] NSWSC 97
St George Bank Ltd v Trimarchi [2004] NSWCA 120
Stoklasa v Stoklasa [2004] NSWSC 518
Sullivan v Sullivan & Ors [2006] NSWCA 312
Taylor v Streicher [2007] NSWSC 1006
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Texts Cited: Young, Croft and Smith On Equity, Thomson Reuter, 2009;
Wright, D. in "The Remedial Constructive Trust" Butterworths, 1998;
Burns, Fiona R "The Equitable Lien Rediscovered: A Remedy for the 21st Century" (2002) 25(1) UNSWLJ 1;
Pound R, "The Progress of the Law- Equity" (1920) 33 Harvard Law Review 420
Category: Principal judgment
Parties: Menka Tasevska (plaintiff)
Vlado (Larry) Tasevski (First defendant)
Susan Tasevski (Second defendant)
Representation: Counsel:
Ms M. Tibbey (plaintiff)
Mr G.M. McGrath (defendants)
Solicitors:
Creswick McCarthy (plaintiff)
Leo & Morrison (defendants)

File Number(s): 2009/291312

Judgment

The proceedings before the Court

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 Besser v Kermode

Details

AGLC: Besser v Kermode [2011] NSWSC 174
Case: [2011] NSWSC 174
Decision Date: 17 March 2011

CaseChat Overview and Summary

The case of Besser v Kermode was heard in the Supreme Court of Victoria. The dispute centred around the equitable interests in a property that the parents of the son and daughter-in-law had invested in. The parents, Mr and Mrs Besser, had sold their own home and placed the net proceeds with their son and daughter-in-law, Mr and Mrs Kermode, to use to build a house for all of them to live in. The parents were not fluent in reading English, and it was alleged that they were promised their names would be placed on the title as co-owners of the property. The case turned on whether the parents had made an equitable charge, lien, or constructive trust over the property, and if the breakdown in relations between the parties occurred "without attributable blame".

The central legal issues in the case were whether the parents had made a non-financial contribution to the purchase of the property, whether there was a promise that their names would be placed on the title as co-owners, and whether the breakdown in relations between the parties occurred "without attributable blame". The court had to determine whether the parents had made a significant enough contribution to warrant an equitable interest in the property, and whether the promise of their names being placed on the title was a valid agreement.

The court found that the parents had made a significant non-financial contribution to the purchase of the property, as they had sold their own home and placed the net proceeds with the son and daughter-in-law. The court also found that there was a promise that the parents' names would be placed on the title as co-owners of the property. However, the court found that the breakdown in relations between the parties did not occur "without attributable blame". The court held that the parents were entitled to an adjustment for their contributions, but did not find that they were entitled to an equitable charge, lien, or constructive trust over the property. The court ordered that the parents be paid $100,000 as compensation for their contributions.

Orders