JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	19–22, 25 March 2024 and 17 April 2024
DATE OF JUDGMENT:	28 August 2024
CASE MAY BE CITED AS:	Hatziminas v Hatziminas
MEDIUM NEUTRAL CITATION:	[2024] VSC 513

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EQUITY— Estoppel — Proprietary estoppel — Whether promise made of gift of real estate — Whether initial promise to transfer real estate made to plaintiff’s son — Whether later amended to son and daughter-in-law — Representation by words or conduct — Characterisation of representation — Reliance — Whether reliance was reasonable — Knowledge of reliance on representation — Detriment if plaintiff resiled from promise or representation — Estoppel established — Equitable compensation awarded.

EQUITY — Constructive trust — Common intention constructive trust — Whether there was an actual or inferred common intention as to the beneficial ownership of property — Joint endeavour constructive trust — Whether there was a joint relationship or endeavour — No constructive trust established.

PLEADINGS — Amendment of pleadings after commencement of trial — Facts found supportive of case not developed at trial — Failure to amend not precluding judgement on facts as emerged — Donis v Donis (2007) 19 VR 577 referred to.

EQUITY — Remedy — Prima facie entitlement to transfer of property — Lesser relief of equitable compensation as appropriate remedy — Measure of equitable compensation referable to payments made for renovations — Equitable compensation awarded — Donis v Donis (2007) 19 VR 577 and Giumelli v Giumelli (1996) 196 CLR 101 applied.

EVIDENCE — Certificate granted — Evidence Act 2008 (Vic), s 128.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr H. Forrester	Randles Cooper Lawyers
For the Defendants	Mr N. McOmish	Peter G. Arnheim & Associates

TABLE OF CONTENTS

Introduction

Procedural issues

Further Amendment to Pleadings
Ruling on Amendment to Pleading
Certificate under Evidence Act

Key issues and findings

Agreed Statement of Facts

The respective claims

Maria’s Counterclaim as pleaded
Constructive trust claim
Estoppel claim

Maria’s counterclaim at trial
Estoppel claim
Constructive trust claim

Kiki’s claim for possession

Legal principles to be applied

Proprietary estoppel
Constructive trust
Common intention constructive trust
Joint endeavour constructive trust

Equitable compensation, charge or lien

Fact finding principles

The evidence considered

The Initial Gift

Evidence relating to the Initial Gift
Conclusion as to the Initial Gift

Amended Gift

Oral representation of the gift of Cornwall Street as a wedding present
Circumstances of moving into Cornwall Street and the First Renovation
The payment of $40,000 for the transfer of the title to Cornwall Street
Breakdown of the relationship between Minas and Maria.
Payment of outgoings
‘Life tenant’ notation in Cornwall Street water account

The Second Renovation

Why was the Second Renovation undertaken?
Who had the carriage of the Second Renovation and how was it paid for?
Events following 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 Hatziminas v Hatziminas

Details

AGLC: Hatziminas v Hatziminas [2024] VSC 513
Case: [2024] VSC 513
Decision Date: 28 August 2024

CaseChat Overview and Summary

The matter between Hatziminas and Hatziminas was heard in the Supreme Court of Victoria. The central dispute concerned the ownership of a property in Melbourne, which was the subject of a promise made by the father to his son, and later amended to include the son's wife. The son and his wife sought to enforce the promise through claims of proprietary estoppel and constructive trust, while the father sought to resile from the promise. The legal issues for determination included whether the father's promise constituted a representation of a gift of real estate, whether the son and his wife had relied on this representation to their detriment, and whether a constructive trust existed over the property.

The court found that the father's promise did constitute a representation of a gift of real estate, and that the son and his wife had relied on this representation to their detriment. The court further found that the father was aware of this reliance and that it would be inequitable for him to resile from the promise. The court rejected the claims of constructive trust, finding that there was no actual or inferred common intention as to the beneficial ownership of the property, and that there was no joint relationship or endeavour that would give rise to a joint endeavour constructive trust. The court found that the appropriate remedy was equitable compensation, which was awarded to the son and his wife in the amount of the payments they had made for renovations to the property.

The court noted that the son and his wife had not developed their case on the basis of equitable compensation at trial, but that this did not preclude a judgement on the facts as they had emerged. The court referred to Donis v Donis in support of this proposition. The court also noted that the measure of equitable compensation should be referable to the payments made for renovations, and referred to Donis v Donis and Giumelli v Giumelli in support of this proposition. Finally, the court granted a certificate under section 128 of the Evidence Act 2008 (Vic), which allowed certain evidence to be admitted despite technical irregularities. The final orders of the court included an award of equitable compensation to the son and his wife, and a declaration that they were entitled to occupy the property on certain terms.

Orders