Bosganas bht Michael v Bosganas - [2024] NSWSC 1041

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bosganas bht Michael v Bosganas [2024] NSWSC 1041
Hearing dates: 19 August 2024
Decision date: 19 August 2024
Jurisdiction: Common Law
Before: Leeming JA
Decision:
1. Judgment for the plaintiff, Lena Bosganas, for possession of the land comprised in folio identifier XX/XXXX being the land situated at and known as XX Fenwick St Bankstown NSW.
2. Direct the plaintiff to effect personal service upon the defendant of (a) these orders, (b) the reasons for judgment of the Supreme Court, and (c) the materials upon which the plaintiff relied in that Court, as soon as practicable.
3. Stay the execution of the judgment in Order 1 above until further order.
4. Grant leave to the plaintiff, no earlier than 28 days after the date upon which personal service has been effected pursuant to Order 2 above, to apply to the Court to set aside the stay and take steps to execute the judgment.
5. Direct that the plaintiff serve electronically by the last address notified the documents referred to in Order 2 above upon Mr Steve Kassem at the same time as personal service is being effected.
6. Direct the plaintiff to supply a copy of these reasons to the Law Society of NSW.
7. The defendant to pay the plaintiff’s costs of these proceedings to date.
8. Grant liberty to apply on five days’ notice.

Catchwords:
LAND LAW – possession – possession sought by registered proprietor by her tutor – whether basis for doubting efficacy of power of attorney – whether defendant had established common intention constructive trust or estoppel – judgment entered

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b)

Cases Cited:
Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336
Galati v Deans [2023] NSWCA 13
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

Category: Principal judgment
Parties: Lena Bosganas by her tutor Lena Elizabeth Michael (Plaintiff)
George Theo Bosganas (Defendant)
Representation:
Counsel:
J Horowitz (Plaintiff)
Solicitors:
Liam Carney (Plaintiff)

File Number(s): 2024/00097347
Publication restriction: Nil

EX TEMPORE JUDGMENT

HIS HONOUR: The plaintiff, Ms Lena Bosganas, who appears by her tutor, Ms Lena Elizabeth Michael, has proceeded this morning ex parte against the defendant who is her older son, Mr George Theo Bosganas. The tutor is the plaintiff’s granddaughter and the daughter of the younger son, Mr Con Bosganas. The two sons were born in 1960 and 1965 respectively. They are aged approximately 64 and 59. Without any disrespect or unwarranted familiarity I shall follow the course adopted during the hearing and refer to members of the Bosganas family by their given names.
The proceedings were set down for final hearing on 26 June 2024 by Davies J sitting in the Possession List. On that occasion, Mr Horowitz appeared for the plaintiff, as he has appeared today, and an appearance was recorded for the defendant by a solicitor, Mr Steve Kassem. There has been no appearance on behalf of the defendant…

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.

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Details

Case: [2024] NSWSC 1041
Decision Date: 19 August 2024

CaseChat Overview and Summary

The plaintiff, Bosganas bht Michael, sought to be restored to possession of a property in Sydney, relying on a power of attorney. The property was registered in the name of the defendant, Bosganas, who resisted the application. The dispute was heard in the Supreme Court of New South Wales. The central legal issues revolved around the validity of the power of attorney and whether the defendant had established a common intention constructive trust or a proprietary estoppel. Specifically, the court had to determine whether there were grounds to doubt the efficacy of the power of attorney and whether the defendant had demonstrated a sufficient basis for either a common intention constructive trust or proprietary estoppel.

The court examined the evidence provided by the parties and the terms of the power of attorney. It found that there were no valid grounds to question the power of attorney's efficacy, as it was properly executed and did not contain any ambiguous terms. The court also analysed the arguments for a common intention constructive trust and proprietary estoppel. It concluded that the defendant had not provided sufficient evidence to establish either a common intention constructive trust or proprietary estoppel. The court held that the defendant's claim was not substantiated by the evidence, and the plaintiff's application for restoration of possession was successful.

As a result, the court ordered that judgment be entered in favour of the plaintiff, restoring the property to her possession. The defendant's claims were dismissed, and the court emphasised that the power of attorney was valid and enforceable. The defendant was ordered to vacate the property and return it to the plaintiff within a specified timeframe. This decision underscored the importance of clear and unambiguous documentation in legal proceedings and highlighted the stringent requirements for establishing equitable claims such as constructive trusts and proprietary estoppel.

Orders