| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2023 01556
| Kiki Hatziminas (according to the attached schedule) | Plaintiff |
| v | |
| Maria Hatziminas & Anor (according to the attached schedule) | Defendants |
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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…
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- AGLC
- Hatziminas v Hatziminas [2024] VSC 513
- Case
- [2024] VSC 513
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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