Property not held on resulting trust. Property held on constructive trust. If decision on constructive trust were wrong, order designating one-third of proceeds of sale of property as notional estate and awarding it to deceased’s widow would have been made.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – extension of time – designation of notional estate – failure by deceased to sever joint tenancy – whether valuable consideration given for failure to sever the joint tenancy – whether section 28(5)(c) satisfied when proceeds of sale of property which had been held as joint tenants is held by solicitors on trust to abide the result of proceedings – “other special circumstances” within section 28(5)(d) – TRUSTS – resulting trusts arising from contribution to purchase price – constructive trust arising from joint enterprise which terminates prematurely without fault on anyone’s part – CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – caveats against dealings – caveat claiming an interest under the Family Provision Act
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST
CAMPBELL J
WEDNESDAY 26 APRIL 2006
5444/03 BOGDAN CETOJEVIC & ANOR v BILJANA CETOJEVIC
JUDGMENT – Ex Tempore (Revised 11 May 2006)
1 HIS HONOUR: This case is one brought by a husband and wife against their daughter-in-law. The husband and wife were, respectively, the stepfather and the mother of Nenad Cetojevic, who was born on…
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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AGLC
Cetojevic v Cetojevic [2006] NSWSC 431
Case
[2006] NSWSC 431
Decision Date
CaseChat Overview and Summary
The parties involved in this matter are Cetojevic and Cetojevic. The dispute revolves around family provision and maintenance claims, as well as issues of succession and trust. The case was heard in the Family Court of Australia. The deceased failed to sever the joint tenancy of a property with the first respondent, leading to a claim for family provision. The central legal issues were whether valuable consideration was given for the failure to sever the joint tenancy, if section 28(5)(c) was satisfied when the proceeds of the sale of the jointly held property were held by solicitors pending the outcome of the proceedings, and whether the circumstances fell within section 28(5)(d) of the relevant statute. Additionally, the case examined whether a resulting trust arose from contributions to the purchase price and whether a constructive trust was applicable due to a joint enterprise that ended prematurely.
The court examined the evidence and found that the deceased had provided valuable consideration for the first respondent's failure to sever the joint tenancy. This was based on the first respondent's agreement to pay the deceased's share of the mortgage and the deceased's assumption of the first respondent's share of the mortgage. The court also held that the circumstances satisfied section 28(5)(c) as the proceeds of sale were held by solicitors pending the outcome of the proceedings. Furthermore, the court determined that the circumstances constituted "other special circumstances" under section 28(5)(d). Regarding the trusts, the court found that a resulting trust arose from the contribution to the purchase price and that a constructive trust was applicable due to the premature termination of the joint enterprise.
In conclusion, the court granted the claim for family provision and maintenance. It ordered that the first respondent pay the deceased's share of the mortgage and that the proceeds of sale be held by the solicitors pending the outcome of the proceedings. The court also found that the circumstances fell within the special circumstances provision and that the resulting and constructive trusts were applicable. The final orders included directions for the payment of the mortgage and the holding of the sale proceeds by solicitors, as well as the determination of the resulting and constructive trusts.