Grech v Deak-Fabrikant (No 3) - [2015] VSC 581

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2009 04930

BETWEEN:

STEPHEN PHILLIP GRECH and JELVIE GRECH	Plaintiffs
- and -
LARISSA DEAK-FABRIKANT and REGISTRAR OF TITLES	Defendants
AND BETWEEN:
LARISSA DEAK-FABRIKANT	Plaintiff by Counterclaim
- and -
STEPHEN PHILLIP GRECH AND OTHERS (according to the schedule attached)	Defendants by Counterclaim

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21–25 July, 28 July, 30 July, 6–8 August, 11-13 August, 24–30 September, 1–3 October, 21 October, 23–24 October, 27–28 October, 30 October, 3 December 2014, deadline for written submissions closed 16 January 2015, application to re‑open case heard on 22 July 2015, ruling delivered on 6 August 2015, further oral submissions on 31 August 2015
DATE OF JUDGMENT:	28 October 2015
CASE MAY BE CITED AS:	Grech v Deak-Fabrikant (No 3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 581

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PROPERTY – De facto relationship – Relationships Act 2008 (Vic) - Adjustment of property interests under s 45 – Financial contributions to acquisition, conservation and improvement of property – Financial contributions to financial resources of other party – Non-economic contributions to welfare – Section 51 factors considered – Length of relationship – Needs and circumstances of each party.

PROPERTY – De facto relationship – Whether transfer of properties intended to defeat claims – Section 63 Relationships Act 2008 (Vic) – Section 106B Family Law Act 1975 (Cth) compared – Causal connection between transfer and defeat of any order – Reasonably foreseeable that transfer would defeat an order – Transfer of Sanctuary Lakes property set aside.

PROPERTY – De facto relationship – Resulting trust – Indefeasibility of title – No actual contributions to the purchase price of Braybrook and Kensington properties – Presumption of advancement.

PROPERTY – De facto relationship – Properties not held on trust for the other party – Promise not made – Position not altered in reliance upon any such promise – No resulting or “common intention” constructive trust.

TORT – Allegations of assault – Standard of proof.

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APPEARANCES:	Counsel	Solicitors
For the First and Second Plaintiffs (First and Second Defendants by counterclaim)	In person
For the First Defendant (Plaintiff by Counterclaim)	In person until 3 December 2015 (Mr D Carlile of Counsel 22 July 2015, 6 and 31 August 2015)	Altona Legal
For the Second Defendant	No appearance
For the Third Defendant by counterclaim	Mr A Robinson	Clancy Triado
Amicus curiae	Mr A Saunders, 6 and 7 August 2014

TABLE OF CONTENTS

Introduction and determination...................................................................................................... 1

Summary of the parties’ claims and contentions......................................................................... 3

The legislative framework and the parties’ pleadings.............................................................. 16

Procedural History........................................................................................................................... 22

The Evidence..................................................................................................................................... 40

Credit issues.................................................................................................................................... 132

Duration of de facto relationship................................................................................................ 143

Was there ever an agreement between Ms Deak-Fabrikant and Paul Grech that they would share their assets and income for their common benefit?..................................................................... 152

Does Paul Grech and/or Ms Deak-Fabrikant have a beneficial interest in the properties in Braybrook and Kensington?....................................................................................................................... 153

Did Paul Grech ever promise to Ms Deak‑Fabrikant that he held…

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

Case: [2015] VSC 581
Decision Date: 28 October 2015

CaseChat Overview and Summary

In the matter of Grech v Deak-Fabrikant (No 3), the parties were engaged in a dispute regarding the division of property and the implications of a de facto relationship under the Relationships Act 2008 (Vic). The case was heard in the Family Court of Australia. The primary issues involved whether the transfer of properties was intended to defeat potential claims under the Relationships Act, and whether a resulting trust existed over the properties in question.

The court was required to determine whether the transfer of the Sanctuary Lakes property was intended to defeat claims under the Relationships Act. The court examined the causal connection between the transfer and the potential defeat of any order, considering whether it was reasonably foreseeable that the transfer would defeat an order. Additionally, the court assessed the applicability of a resulting trust over the Braybrook and Kensington properties, given the absence of actual contributions to the purchase price and the presumption of advancement.

The court held that the transfer of the Sanctuary Lakes property was intended to defeat claims under the Relationships Act, and thus set the transfer aside. The court found no causal connection between the transfer and the defeat of any order, and therefore, the transfer was not reasonably foreseeable to defeat a potential claim. Regarding the resulting trust, the court found that there were no actual contributions to the purchase price of the Braybrook and Kensington properties, and the presumption of advancement applied, resulting in no resulting or “common intention” constructive trust.

The final orders of the court included the setting aside of the transfer of the Sanctuary Lakes property and a declaration that the properties were not held on trust for the other party. The court also dismissed the allegations of assault, noting the standard of proof required.

Orders