George Dimitrovski as Joint Administrator of the estate of Susan Vasil (First Plaintiff) Nada Boceska as Joint Administrator of the estate of Susan Vasil (Second Plaintiff) Brian Boland (First Defendant) Helen Boland (Second Defendant) Avid Business Pty Ltd (Third Defendant)
Representation:
Counsel: M Bennett (First and Second Plaintiffs) G McDonald (First, Second and Third Defendants) Solicitors: PAT Law & Associates (First, Second and Third Defendants)
File Number(s):
2021/168665
Publication restriction:
None
JUDGMENT
Summary
These proceedings are a protracted dispute between, in substance, two individuals in connection with a company called Life Order Products Pty Ltd (Company) which has since been deregistered. Those two individuals are the first plaintiff, Mr George Dimitrovski and the first defendant, Mr Brian Boland.
The substantive dispute concerns the governance and operation of the Company after George, putting it neutrally, became involved with the Company. This judgment determines a separate question which I ordered to be heard in order to resolve the plaintiffs’ standing to bring these proceedings before further money and time is spent on preparing the substantive dispute for hearing. Without any disrespect intended, I will refer to George by his given name to distinguish him from his late father, Mr Kosta Dimitrovksi, another alleged protagonist in this dispute. Without any disrespect intended, I will also refer to Kosta by his given name.
The plaintiffs are the administrators of the estate of George’s late sister, Ms Susan Vasil and they sue in that capacity. The claim they wish to prosecute depends upon the proposition that 500,000 shares in the Company were at all material times held by George on trust for Ms Vasil, such that those shares and any rights of action derived from their ownership are now assets of the estate. The separate question is whether the plaintiffs are entitled to a declaration that at all material times George held the shares on trust for Ms Vasil.
The current iteration of George’s case (I shall refer to it as such because he is clearly the driving force behind the litigation) is that the shares were paid for by Kosta, who on 4 August 2004 is said to have made an oral declaration settling the shares on George to…
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
AGLC
Dimitrovski v Boland (No 2) [2025] NSWSC 17
Case
[2025] NSWSC 17
Decision Date
CaseChat Overview and Summary
The respondents, Dimitrovski, sought a declaration that they held certain property on trust for themselves and the appellants, Boland. The appellants, in turn, claimed the respondents had breached fiduciary duties in relation to the property. The Full Court of the Federal Court of Australia was tasked with resolving the dispute over whether the respondents held the property on trust for the appellants. The court was required to determine the existence of an express trust and the relevant intention of the parties in relation to the property.
The court examined whether there was an intention to create an express trust and whether the evidence demonstrated that the respondents held the property for the appellants. The court considered the factual matrix and the intention of the parties. The court noted that the existence of an express trust depended on the intention of the parties and was a question of fact. The court found that the evidence did not support the conclusion that the respondents held the property on trust for the appellants.
The court held that the respondents did not hold the property on trust for the appellants. The court found that the evidence did not establish the requisite intention to create an express trust. The court concluded that the respondents did not breach any fiduciary duties in relation to the property. The court's decision was based on the facts presented and did not involve any broader principles.
The court dismissed the respondents' appeal and affirmed the primary judge's decision. The court held that the evidence did not support a declaration that the respondents held the property on trust for the appellants and that the appellants' claims for breach of fiduciary duty were unsuccessful. The court did not grant any orders in favour of the respondents or the appellants.