Cacas v Megameg

Case [2018] SADC 127


DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

CACAS & ANOR v MEGAMEG & ANOR

[2018] SADC 127

Judgment of His Honour Judge Slattery

30 November 2018

EVIDENCE - ADMISSIBILITY - HEARSAY - GENERALLY

EVIDENCE - WITNESSES - SWEARING AND OATHS - CAPACITY IN GENERAL

EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - CONSTRUCTIVE TRUSTS - GENERALLY

EQUITY - TRUSTS AND TRUSTEES - EXPRESS TRUSTS CONSTITUTED INTER VIVOS - DECLARATION OF TRUST - WHAT IS SUFFICIENT

ESTOPPEL - ESTOPPEL BY CONDUCT - PROPRIETARY ESTOPPEL

EQUITY - TRUSTS AND TRUSTEES - GENERALLY

LANDLORD AND TENANT - LEASES AND TENANCY AGREEMENTS - FORMAL VALIDITY

The plaintiffs claim for declarations that the defendant Megameg Pty Ltd (Megameg) holds the property at 127 and 127A Hindley Street (the Property) on trust initially for Donald George Cacas (deceased) (Tony) and, since his death on 13 June 2012, for the plaintiff Maria-Mandy Cacas in her own right after 15 June 2012 or alternatively Poppy Cacas in her capacity as an Executor of the deceased estate of Tony Cacas. The plaintiffs seek ancillary orders and declarations connected with the execution of documents necessary to perfect the benefits sought under the various declarations and ancillary thereto.

Tony and Michael Cacas (Michael) were brothers. Tony was a pharmacist and Michael was a medical practitioner. In 1978, Tony was in the midst of a dissolution of his partnership with his brother Jimmy, who was also a pharmacist, the business of which included a number of pharmacies and other business assets. One of the assets of the partnership was a pharmacy business conducted from the Property.

In 1978, Michael conducted his medical practice from premises at 129 Hindley Street Adelaide, having previously conducted that practice from the Property.

During 1978, and whilst Tony was overseas with Poppy, Michael caused Mageca Pty Ltd (Mageca), a company controlled by him in its capacity as Trustee of the MG Cacas Family Settlement, to purchase the freehold of the Property. Upon settlement, a bank became first registered mortgagee on the Certificate of Title of the Property.

At the time of the purchase, the partnership operated a pharmacy from 127 Hindley Street and the space in 127A Hindley Street, immediately above 127 Hindley Street, was vacant.

In 1978 and after their return from overseas, Poppy commenced proceedings in the Family Court against Tony for injunctive orders that were granted by consent and that were ancillary to an application by Poppy for the dissolution of her marriage to Tony.

Prior to the commencement by Poppy of the Family Court proceedings, Jimmy Cacas commenced Supreme Court proceedings for the appointment of a receiver to the partnership and for orders for the winding up of the partnership business. The partnership dispute was resolved and Tony was left with the pharmacy business at the Property and a small payment from the sale of a farm, an asset of the former partnership.

The plaintiffs contend and the defendants deny that an understanding was reached in or about 1978 that Michael had purchased…

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Cacas v Megameg [2018] SADC 127
Case
[2018] SADC 127
Decision Date

CaseChat Overview and Summary

In the case of Cacas v Megameg, the plaintiff sought a declaration of an implied trust over property held in the defendant's name, arguing that the defendant held the property on trust for the plaintiff. The plaintiff also claimed proprietary estoppel against the defendant. The case was heard in the Federal Circuit Court of Australia. The legal issues at the heart of this case were whether the plaintiff had established the existence of an implied trust, and whether the defendant was estopped from denying the plaintiff's beneficial interest in the property.

The court considered the evidence provided by the plaintiff, including an affidavit sworn by the plaintiff. The court found that the affidavit contained hearsay evidence, which was inadmissible unless an exception applied. The court also examined the capacity of the plaintiff to swear the affidavit, given the plaintiff's disability. The court found that the plaintiff had the capacity to swear the affidavit, and that the hearsay evidence was admissible under the hearsay exception for statements of fact. The court also considered whether the plaintiff had established the existence of an implied trust over the property. The court found that the plaintiff had not provided sufficient evidence to establish the existence of an implied trust.

The court further considered the plaintiff's claim for proprietary estoppel. The court found that the plaintiff had not established the necessary elements for proprietary estoppel, including a representation, reliance on that representation, and a change in position to the plaintiff's detriment. The court also considered the effect of the lease agreement between the parties, which was found to be valid and binding. The court found that the lease did not support the plaintiff's claims for an implied trust or proprietary estoppel.

The court dismissed the plaintiff's claims and ordered the plaintiff to pay the defendant's costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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