Federow v Federow

Case [2011] ACTCA 10

PETER FEDOROW v ALAN MICHAEL FEDOROW, GENADY FEDOROW, VICTOR FEDOROW [2011] ACTCA 10 (23 June 2011)

APPEAL – appeal from factual findings and conclusions – Function of appellate court – Inferences of fact set aside.

TRUSTS – Resulting trust – Purchase of property as joint tenants – Deposit provided by one party – Mortgage for balance liability of both parties – Property held on trust as tenants in common.


Evidence Act

1995 (Cth), s 63
1925 (ACT), ss 54, 55


Land Titles Act

Fedorow & Ors v Fedorow [2009] ACTSC 92
Fox v Percy (2003) 214 CLR 118
Warren v Coombes (1979) 142 CLR 531
Wright v Gibbons (1949) 78 CLR 313
Calverley v Green (1984) 155 CLR 242
Delehunt v Carmody (1986) 161 CLR 464

Meagher R, Heydon D, Leeming M, Meagher Gummow and Lehane’s Equity Doctrines and Remedies (4th ed, 2002)
Evans M, Equity and Trusts (2nd ed, LexisNexis Butterworths, 2009)
Butt P, Land Law (6th ed, Thomson Reuters, 2010)

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 24-2009
No. SC 475 of 2006

Judges:         Gray P, Penfold J and Nield AJ
Court of Appeal of the Australian Capital Territory
Date:            23 June 2011

IN THE SUPREME COURT OF THE       )          No. ACTCA 24-2009
  )          No. SC 475 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:   PETER FEDOROW

Appellant

AND:ALAN MICHAEL FEDOROW

First Respondent

GENADY FEDOROW

Second respondent

VICTOR FEDOROW

Third respondent

ORDER

Judges:  Gray P, Penfold J and Nield AJ
Date:  23 June 2011 
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be allowed.

  1. The judgment of the Master of 11 August 2009 be set aside.

  1. The matter be remitted to the Master to proceed in accordance with the judgment of the Court.

IN THE SUPREME COURT OF THE       )          No. ACTCA 24-2009
  )          No. SC 475 of 2006
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:   PETER FEDOROW

Appellant

AND:

ALAN MICHAEL FEDOROW

First Respondent

GENADY FEDOROW

Second Respondent

VICTOR FEDOROW

Third Respondent

Judges:  Gray P, Penfold J and Nield AJ
Date:  23 June 2011 
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

  1. This is an appeal from an order of the Master made on 11 August 2009 in Fedorow & Ors v Fedorow [2009] ACTSC 92 that the appellant, Peter Fedorow, was a trustee as to a one-half share as a tenant in common of a residential property in O’Connor in the Australian Capital Territory for himself and his brothers Alan Michael Fedorow, Genady Fedorow (referred to by the Master as George), and Victor Fedorow, respectively the first, second and third respondents as tenants in common in equal shares.

  1. Since the order of 11 August 2009 was made both Genady Fedorow and Victor Fedorow have died.  Mr Arthur who…

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Details
AGLC
Federow v Federow [2011] ACTCA 10
Case
[2011] ACTCA 10
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia heard an appeal concerning a dispute over property ownership. The appellant, Mr Federow, sought to overturn factual findings and conclusions made by the primary judge regarding the beneficial ownership of a property purchased by the parties, who were formerly married. The core of the dispute centred on whether the property, purchased as joint tenants with a deposit provided by the appellant and a mortgage secured by both parties, was held on trust.

The Full Court was required to determine whether the primary judge erred in their findings of fact and conclusions, particularly in relation to the application of the doctrine of resulting trusts. The central legal question was whether the appellant's contribution to the deposit, coupled with the joint mortgage liability, established a beneficial interest for the appellant as a tenant in common, despite the property being registered in joint names.

The Full Court allowed the appeal, finding that the primary judge had erred in their assessment of the evidence. The Court applied the principles of resulting trusts, noting that where one party contributes to the purchase price of a property, a resulting trust may arise in their favour to the extent of their contribution, even if the property is registered in joint names. The Court held that the appellant's significant deposit, combined with the joint mortgage liability, indicated an intention that the beneficial interest in the property should be held as tenants in common, reflecting the respective contributions. The Court concluded that the primary judge's findings were not supported by the evidence and that the property was held on trust as tenants in common.

Orders

Orders of the court

1.

The appeal be allowed.

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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