George Stefanovski v Draga Stefanovski - [2009] NSWSC 1404

CITATION: George Stefanovski & Anor v Draga Stefanovski [2009] NSWSC 1404

HEARING DATE(S): 07/12/09, 08/12/09, 09/12/09, 10/12/09, 11/12/09

JUDGMENT DATE :
18 December 2009

JURISDICTION: Equity

JUDGMENT OF: Forster J at 1

DECISION: See paragraphs 138 to 141 of judgment.

CATCHWORDS: Agreement between family members - consisted only of agreement to swap properties - did not also include other terms relating to leaving the parents' assets to son by will - agreement given effect to. - Allegation that parents contributed towards purchase price of property purchased by son and daughter-in-law - allegation is not made out - even if allegation had been made out, presumption of advancement not rebutted.

LEGISLATION CITED: Conveyancing Act 1919

CATEGORY: Principal judgment

CASES CITED: Brown v Brown (1993) 31 NSWLR 582
Jones v Dunkel (1959) 101 CLR 298

PARTIES: Plaintiffs: George Stefanovski and Sonia Stefanovski
Defendant: Draga Stefanovski

FILE NUMBER(S): SC 4098/2007

COUNSEL: Plaintiffs: M.B. Evans
Defendant: A.S. McGrath, G. Ng

SOLICITORS: Plaintiffs/Cross-Defendants: John Michael Whitfield, Whitfields
Defendant/Cross-Claimant: Haley Cathryn McEwen, Henry Davis York Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

FRIDAY, 18 DECEMBER 2009

4098/07 GEORGE STEFANOVSKI & ANOR v DRAGA STEFANOVSKI

JUDGMENT

1 HIS HONOUR: These proceedings arise out of a most unfortunate set of disputes between, on the one hand, George Stefanovski and his wife Sonia, who are the plaintiffs and Mr Stefanovski’s mother, Draga Stefanovski, who is the defendant. As the parties and a number of the other persons involved in the disputes are members of the same family, I propose, without meaning any disrespect, to refer to each of them by their first names.

2 The disputes are now restricted to two properties, namely:

(a) the property situated at 86 Sylvan Ridge Road, Illawong (“the Illawong Property”) which is registered in the names of George and Sonia as joint tenants as to 52/100 ^th share as tenants in common with Draga, who is registered as owning 48/100 ^th share. Draga seeks a declaration that she is the legal and beneficial holder of a 48 per cent interest in that property and an order for the appointment of trustees for sale pursuant to section 66G of the Conveyancing Act 1919. By contrast, George and Sonia seek a declaration that the interest of Draga in the Illawong Property is limited to an equitable license entitling her to reside in the property for life or until such time as she may elect to live elsewhere, whereupon the whole of the equitable interest in the property vests in George and Sonia. They also seek consequential orders for the transfer to them by Draga of the legal title to the 48/100 ^th share of the Illawong Property;

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 George Stefanovski v Draga Stefanovski 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] NSWSC 1404
Decision Date: 18 December 2009

CaseChat Overview and Summary

In the Family Court of Australia, the matter of George Stefanovski v Draga Stefanovski was heard. The primary dispute was centred around the terms of an agreement between family members regarding the swapping of properties and the disposition of the parents' assets. Specifically, the son alleged that his parents had contributed towards the purchase price of a property he and his wife had bought, and that this contribution should be taken into account when considering the division of assets. Additionally, it was argued that the parents had agreed to leave their assets to the son through their wills.

The court was tasked with determining the scope of the agreement between the parties and whether it included terms regarding the disposition of the parents' assets by will. Furthermore, the court needed to decide whether the parents had indeed contributed to the purchase price of the property in question and, if so, whether this contribution had been sufficiently rebutted by the presumption of advancement.

In its reasoning, the court found that the agreement between the family members was limited to the swapping of properties and did not encompass any terms regarding the parents' wills. The court noted that even if the allegation of a financial contribution towards the property purchase had been substantiated, the presumption of advancement would still apply, which would mean that the contribution could not be considered in the division of assets. Therefore, the court did not find in favour of the son's claims on either point. The court gave effect to the agreement as it was, which was solely about the exchange of properties.

As a result of the court's decision, the son's claims regarding the contribution towards the property purchase and the terms of the parents' wills were dismissed. The court's final orders reflected its determination that the agreement was limited to the swapping of properties and did not include terms about the parents' assets being left to the son by will. Additionally, the court found that the presumption of advancement could not be rebutted in relation to any alleged contribution towards the purchase of the property.

Orders