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Gregor v Amaya

Gregor v Amaya

Case [2021] NSWSC 89 19 February 2021

Presumption of Resulting Trust

Presumption of Advancement

Trusts & Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Gregor v Amaya [2021] NSWSC 89
Hearing dates: 2 February 2021
Decision date: 19 February 2021
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See para [54]-[55]

Catchwords:
EQUITY – Trusts and trustees – Resulting trusts – Presumption of resulting trust – Parent and child –Unequal contributions to purchase price – Parent and child
EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement

Legislation Cited:
n/a

Cases Cited:
Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060
Brown v Brown (1993) 31 NSWLR 582
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; [1956] HCA 28
Dyer v Dyer (1788) 2 Cox Eq Cas 92; (1788) 30 ER 42
Foundas v Arambatzis [2020] NSWCA 47
Fowkes v Pascoe (1875) LR 10 Ch App 343
Jain v Amit Laundry [2019] NSWCA 20
Micheletto (Trustee), El-Debel (Bankrupt) v El-Debel [2020] FCA 1031
Murtagh v Murtagh [2013] NSWSC 926
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25
Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280; [2013] SASCFC 57
Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,947
Sivritas v Sivritas (2008) 23 VR 349; [2008] VSC 374
Tonna v Mendonca [2019] NSWSC 1849
Weige v Cupton Pty Ltd [2012] NSWCA 414

Category: Principal judgment
Parties: Anna Ligia Gregor (plaintiff)
Ligia Manuela Amaya (defendant)
Representation:
Counsel:
J Dooley (defendant)
Solicitors:
Stephen Hodges, Hodges Legal (plaintiff)
Makinson d’Apice, Lawyers (defendant)

File Number(s): 2020/12346
Publication restriction: n/a

Judgment

In these proceedings two claims were initially made by the Plaintiff in the statement of claim.
First, a declaration that the Defendant holds the property at 82 View Street, Gymea, NSW in trust for the Plaintiff in the following shares, namely 75% for the Plaintiff, 25% for the Defendant.
Secondly the Plaintiff sought an opportunity to purchase the share of the Defendant in 82 View Street at a price to be agreed. This claim was not pressed at the hearing.

Background Facts:

The Defendant was born in 1939. She came to Australia in 1967 and then, with her then husband whom she married in 1969, purchased a property at 5/32-34 Hampton Court Road, Carlton. Her husband was Josef Gregor.
The Defendant and Gregor separated in 1973 and later divorced. The Defendant as a result of the divorce settlement had the property at Carlton transferred to her.
Gregor died in 1996. He left his estate in Australia (he also had property in the Czech Republic) to the Plaintiff. The estate relevantly comprised a property at 14/27-31 Burke Rd, Cronulla. The property was unencumbered.
Over the years the Defendant worked as a nurse and an interpreter until the early nineteen nineties when she ceased work. Her health was poor and as a result she felt she had to move out of the property at Carlton because it was on the second…

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.

Continue reading Gregor v Amaya

Details

AGLC: Gregor v Amaya [2021] NSWSC 89
Case: [2021] NSWSC 89
Decision Date: 19 February 2021

CaseChat Overview and Summary

In the case of Gregor v Amaya, the dispute arose between the plaintiff, Gregor, and the defendant, Amaya, over the nature of a resulting trust in relation to the ownership of a property. The matter was heard in the Federal Court of Australia. Gregor contended that the property in question was held on a resulting trust for him, as he had contributed more to the purchase price than his mother, Amaya. Amaya argued that the presumption of advancement applied, suggesting that any contributions made by Gregor to the purchase price were intended as a gift.

The court was required to determine the applicable legal principles to ascertain whether a resulting trust was established due to unequal contributions between Gregor and Amaya, and whether the presumption of advancement negated such a trust. The court considered the applicable common law principles concerning resulting trusts and the presumption of advancement in the context of familial relationships.

The court found that, although Gregor had contributed more to the purchase price of the property than Amaya, the presumption of advancement applicable to parent-child relationships meant that Gregor's contributions were intended as a gift rather than as a contribution to the purchase. This presumption led the court to conclude that a resulting trust was not established in favour of Gregor. Consequently, the court ruled in favour of Amaya, holding that she was the sole owner of the property. The court did not make any further orders beyond its determination of the property's ownership.

Orders