Bijkerk Investments Pty Ltd v Bikic

Bijkerk Investments Pty Ltd sought to recover an unpaid debt from one of two borrowers, Bikic. Bijkerk had obtained a judgment against Bikic and subsequently served a bankruptcy notice and filed a creditor’s petition. Bikic applied for declaratory relief, arguing that the other borrower should contribute to the debt, and sought to establish that he was ready, willing and able to pay. Bijkerk argued that Bikic had not demonstrated that the other borrower was liable to contribute.

The court was required to determine whether Bikic was entitled to declaratory relief that the other borrower should contribute to the debt, and whether it was necessary to establish that Bikic was ready, willing and able to pay. The court also needed to consider whether the property was held on an express or constructive trust for one co-owner, and whether there was an express or implied common intention that the property was held on trust.

The court held that Bikic was not entitled to declaratory relief that the other borrower should contribute to the debt, as there was no evidence that the other borrower had received notice of the proceedings or had an opportunity to defend them. The court also found that it was not necessary to establish that Bikic was ready, willing and able to pay, as Bikic had not demonstrated that the other borrower was liable to contribute. Regarding the co-ownership dispute, the court found that the property was not held on an express trust for one co-owner, but rather on a common intention constructive trust. The court considered the relationship between common intention constructive trusts and estoppel, and found that there was no evidence of an estoppel in this case.

The court dismissed the application for declaratory relief and ordered Bijkerk to pay Bikic’s costs.