Fedorow and Ors v Fedorow - [2009] ACTSC 92

FEDOROW & ORS v FEDOROW
[2009] ACTSC 92 (11 AUGUST 2009)

EQUITY – trusts – son purchasing government house as joint tenant with father – father previously sole tenant under tenancy agreement – father unaware of effect of joint tenancy – no intention that property pass to son on death by survivorship – declaration that son holds deceased father’s half-interest on trust for beneficiaries of father’s estate

Calverley v Green (1984) 155 CLR 242

No. SC 475 of 2006

Judge: Master Harper
Supreme Court of the ACT

Date: 11 August 2009

IN THE SUPREME COURT OF THE       )
  )          No. SC 475 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:ALAN MICHAEL FEDOROW
First Plaintiff

GENADY FEDOROW
Second Plaintiff

VICTOR FEDOROW Third Plaintiff

AND:
PETER FEDOROW
Defendant

ORDER

Judge:  Master Harper
Date:  11 August 2009
Place:  Canberra

THE COURT DECLARES THAT:

From 8 July 1995 the defendant was a trustee as to a one-half share as a tenant in common of block 12 section 25 O’Connor being the land comprised in volume 538 folio 16 for himself and the three plaintiffs as tenants in common in equal shares.

This is a dispute between four brothers. Their parents, now deceased, migrated to Australia from Russia more than half a century ago, and settled in Canberra.

There are four brothers in the Fedorow family: Alan (originally Anatoly), George (originally Genady), Victor and Peter (originally Piotr). They are the sons of the late Michael and Anna Fedorow. They are now in their sixties and seventies.

The proceedings

Proceedings were instituted by Alan, George and Victor against Peter. Subsequently Peter commenced proceedings against his brothers seeking declaratory relief and the removal of caveats.

Alan, George and Victor seek declaratory relief against Peter, with consequential orders. Alan and George Fedorow started the proceedings through solicitors. Victor Fedorow started his own action, unrepresented. The actions have since been consolidated.

As the action proceeded towards trial, the first and third plaintiffs, Alan and Victor, were represented by a firm of solicitors, whilst the second plaintiff George was represented by the Legal Aid Office (ACT). The action went to trial with the same counsel representing the three plaintiffs, against the fourth brother Peter Fedorow as defendant.

The facts

The determination of this action requires findings of fact about events which occurred many years ago. There is some assistance from contemporaneous documents. Each of the four brothers has given evidence of their recollections. I have been able to observe the demeanour of each of the brothers in the witness box, and I can say at the outset that I formed the impression that each of them was doing his best to recall the events. While recognising that each of them has something to gain or lose depending on the outcome of the proceedings, I found all of them to be honest and genuine. Where there remain conflicts of evidence, I am inclined to attribute these to the perspective from which different people will perceive and recall the same event, and…

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.

Keep reading for free

Create a free CaseChat account to read Fedorow and Ors v Fedorow and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] ACTSC 92
Decision Date: 11 August 2009

CaseChat Overview and Summary

In the case of Fedorow and Others versus Fedorow, the High Court of Australia considered a dispute concerning the ownership of a property purchased by a son as a joint tenant with his father. The father was previously the sole tenant of the property under a tenancy agreement. The father was unaware of the implications of joint tenancy, and there was no intention that the property would pass to the son on the father's death by survivorship. The plaintiffs, who were the father's children other than the son, sought a declaration that the son held the deceased father's half-interest on trust for the beneficiaries of the father's estate.

The legal issues before the court involved the nature of the joint tenancy and whether the son held the deceased father's half-interest on trust for the beneficiaries of the father's estate. The court was required to determine whether the son held the deceased father's half-interest as a trustee for the beneficiaries of the father's estate, given that the father had no intention for the property to pass to the son by survivorship. The court also needed to decide on the appropriate declaration and orders to be made concerning the ownership of the property.

The court found that the son held the deceased father's half-interest on trust for the beneficiaries of the father's estate. The court held that the son held the property as a trustee for the beneficiaries of the father's estate, given that the father had no intention for the property to pass to the son by survivorship. The court declared that the son held the property as to half for himself, and as to the other half, as trustee for the persons entitled to his late father's estate on intestacy, that is the three plaintiffs and the defendant in equal shares, with the two half-interests in the property being held as a tenancy in common in equal shares. The court reserved the matter for further orders and costs.

Orders

Orders of the court

At this point I shall simply declare that on and from the date of his father's death, Peter held the O'Connor property, as to half, for himself, and as to the other half, as trustee for the persons entitled to his late father's estate on intestacy, that is the three plaintiffs and the defendant in equal shares, with the two half-interests in the property being held as a tenancy in common in equal shares.

59. I shall hear counsel for the parties as to other orders and as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.