Flourentzou v Spink

[2019] NSWCA 315

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Flourentzou v Spink [2019] NSWCA 315
Decision date:	19 December 2019
Before:	Bathurst CJ at [1]; Gleeson JA at [2]; Barrett AJA at [3]
Decision:	(1) Appeal dismissed.  (2) That the appellants pay the respondent’s costs.
Catchwords:	PERSONAL PROPERTY – gifts – conditional gifts – payments by mother to her daughter and son-in-law towards purchase of house by them to be occupied also by her – intention of mother – whether absolute and unqualified gift – whether gift conditional on her having right of occupation amounting to interest in the property
Legislation Cited:	N/A
Cases Cited:	Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Bogdanovic v Koteff (1988) 12 NSWLR 472 Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Cohen v Sellar [1926] 1 KB 536 Commissioner of Taxation v McPhail (1968) 117 CLR 111; [1968] HCA 13 Ian Hung Wai v Cheung Sau Kuen [2011] 3 HKLRD 458; [2011] HKCA 94 Jacobs v Davis [1917] 2 KB 532 Lawrence v Branch [2002] WASCA 292 Luke v Waite (1905) 2 CLR 252; [1905] HCA 5 McDonnell v Loosemore [2007] EWCA Civ 1531 Milling v Hardie [2014] NSWCA 163 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Pecore v Pecore [2007] 1 SCR 795, 2007 SCC 17 Richards v Delbridge (1874) 18 LR Eq 11 Spink v Flourentzou [2019] NSWSC 256 Watson v Foxman (1995) 49 NSWLR 315 West v Mead (2003) 13 BPR 24,431; [2003] NSWSC 161
Texts Cited:	J C Campbell QC, “The consequences of rebutting a presumption of advancement” (2018) 46 Australian Bar Review 229
Category:	Principal judgment
Parties:	Dianne Flourentzou (First Appellant) Mario Flourentzou (Second Appellant) Rickie Spink (Respondent)
Representation:	Counsel: R Glasson with O Berkmann (Appellants) B Zipser (Respondent)   Solicitors: Carroll O’Dea Lawyer (Appellants) Legal Aid NSW (Respondent)
File Number(s):	2019/110486
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2019] NSWSC 256 Date of Decision: 14 March 2019 Before: Robb J File Number(s): 2017/196183

Headnote

[This headnote is not to be read as part of the decision]

A mother (the respondent) made payments to her daughter and son-in-law (the appellants) towards the purchase and renovation of a property, under an arrangement that the respondent would live in the house with the appellants and their children. There was a dispute as to the precise terms of this arrangement.

Following a breakdown of the relationship, the respondent was evicted. In proceedings brought by her, the primary judge found that, by reason of the payments made by the respondent to the appellants, the respondent had a right to an equitable charge over the property.

The issues on appeal were: in relation to the $147,000 contribution towards the purchase of the property, the nature of the payment between parties, and whether it constituted an…