Cetojevic v Cetojevic

Case [2007] NSWCA 33

New South Wales


Court of Appeal


CITATION: Cetojevic & Anor. v. Cetojevic [2007] NSWCA 33
HEARING DATE(S): 22 February 2007
 
JUDGMENT DATE: 
22 February 2007
JUDGMENT OF: Hodgson JA at 1; Tobias JA at 58; McColl JA at 65
EX TEMPORE JUDGMENT DATE: 22 February 2007
DECISION: Appeal dismissed with costs.
CATCHWORDS: TRUSTS - Constructive trust - Whether joint endeavour had broken down - Whether unconscionability established - SUCCESSION - FAMILY PROVISION - Notional estate - Failure to sever joint tenancy - Whether full consideration given - Family Provision Act 1982 s.22
LEGISLATION CITED: Family Provision Act 1982 ss.22, 26, 27, 28
CASES CITED: Baumgartner v. Baumgartner (1987) 164 CLR 137
Bryson v. Bryant (1977) 2 NSWLR 584
Cameron v. Hills, unreported Needham J, 26/10/89
Goyal v. Chandra [2006] NSWSC 239
Muschinski v. Dodds (1985) 160 CLR 583
Wade v. Harding (1987) 11 NSWLR 551
PARTIES: Bogdan Cetojevic and Vukosava Cetojevic - appellants
Biljana Cieojevic - respondent
FILE NUMBER(S): CA 40294/06
COUNSEL: Mr. M. Willmott SC with Mr. G. McGrath for appellants
Mr. J.J. Loofs for respondent
SOLICITORS: Stojanovic Solicitors, Liverpool for appellants
Brenton Banfield, Campbelltown for respondent
LOWER COURT JURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): ED 5444/03
LOWER COURT JUDICIAL OFFICER: Campbell J
LOWER COURT DATE OF DECISION: 26 April 2006
LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 431




                          CA 40294/06
                          SC 5444/03

                          HODGSON JA
                          TOBIAS JA
                          McCOLL JA

                          Thursday 22 February 2007
CETOJEVIC & ANOR. V. CETOJEVIC
Headnote


      FACTS
      The subject of the dispute is the proceeds of sale of a Horsley Park property.

      The property was purchased in 1995 jointly under the names of the appellants and their son Nenad with the help of a bank loan secured by mortgage. It was intended that the three of them would live in the house together, and that when Nenad married, his wife would join them. All three understood the effect of a joint tenancy, and in particular that if Nenad died his share would go to the appellants. The mortgage repayments were generally made by Nenad, with the first appellant also making occasional deposits.

      In 1997, Nenad married the respondent and together they lived for a period in the respondent’s unit. The respondent ceased working shortly prior to the birth of the couple’s first child and sold her unit shortly after, paying the net proceeds into the Horsley Park mortgage.

      In October 2000, Nenad was drowned in a fishing accident. In February 2002, the respondent lodged a caveat on the property title claiming interests pursuant to a constructive trust and also the Family Provision Act 1982. The property was subsequently sold, with $30,000 paid to each of the appellants and the respondent, and the balance put into a joint account.

      The appellants commenced proceedings seeking all of the net proceeds of sale. The respondent cross-claimed, arguing constructive and/or resulting trust and sought an order under the Family Provision Act 1982. The primary judge held that there was a constructive trust in favour of Nenad’s…

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Cetojevic v Cetojevic [2007] NSWCA 33
Case
[2007] NSWCA 33
Decision Date

CaseChat Overview and Summary

The case of *Cetojevic v Cetojevic* concerned an appeal from a decision of the Supreme Court of New South Wales. The dispute involved competing claims to the estate of the deceased, Mr. Cetojevic, with the appellant, his former wife, seeking to establish a constructive trust over certain assets and also pursuing a claim for provision from the estate under the *Family Provision Act 1982* (NSW). The respondent was the executor of the deceased's estate.

The primary legal issues before the Court of Appeal were whether the deceased's former wife had established a constructive trust over assets held by the deceased, specifically whether a joint endeavour between the parties had broken down and if the circumstances were such that it would be unconscionable for the deceased to retain the assets. Additionally, the court had to determine whether certain assets, which were held in joint tenancy and not severed before the deceased's death, should be considered part of the "notional estate" for the purposes of the family provision claim, and whether the deceased had received full consideration for the transfer of those assets.

The Court of Appeal affirmed the primary judge's findings. Regarding the constructive trust, the court held that the evidence did not establish that the joint endeavour had broken down in a manner that would give rise to an unconscionable outcome if the deceased retained the assets. On the family provision claim, the court found that the deceased's former wife had not provided full consideration for the transfer of the joint tenancy assets, and therefore, these assets were correctly included in the notional estate for the purposes of assessing her claim. The court applied established principles relating to constructive trusts arising from joint endeavours and the provisions of the *Family Provision Act 1982* concerning notional estate.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

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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