Jandric v Jandric

Case [1999] WASC 22


JANDRIC -v- JANDRIC & ANOR [1999] WASC 22



SUPREME COURT OF WESTERN AUSTRALIACitation No:[1999] WASC 22
Case No:CIV:1797/199819 MARCH 1999
Coram:COMMISSIONER BUSS QC18/05/99
24Judgment Part:1 of 1
Result: Injunction granted and ancillary orders made
PDF Version
Parties:GOJKO JANDRIC
ELENA JANDRIC
REGISTRAR OF TITLES

Catchwords:

Caveat
Application under Transfer of Land Act 1893, s138C
Caveatable interest
Serious question to be tried
Constructive Trust
Financial and labour contributions in the course of a de facto relationship
Balance of convenience
Form of caveat defective
Injunction granted and ancillary orders made under Transfer of Land Act 1893, s138C(2)(a)(iii) and s138C(2)(c)

Legislation:

Transfer of Land Act 1893, s137, s138, s138A-138D, s139(1)
Family Law Act 1975 (Cth), s44(3)

Case References:

Baumgartner v Baumgartner (1987) 164 CLR 137
Booth v Beresford (1993) 17 Fam LR 147
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42
Cwalinski v Cwalinski [1958] Tas SR 56
Deputy Commissioner of Taxation v Corwest Management Pty Ltd [1978] WAR 129
Easton v Ardizzone [1978] 2 NSWLR 233
Eng Mee Yong v Letchumanan [1980] AC 331
Giacci Bros Pty Ltd v Tyrrell, unreported; SCt of WA; Library No 980106; 18 February 1998
Gillies v Keogh [1989] 2 NZLR 327
Halse v Embling, unreported; FCt SCt of WA; Library No 970734; 22 December 1997
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
Kais v Turvey (1994) 11 WAR 357
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222
Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419
McMahon v McMahon [1979] VR 239
Miller v Sutherland (1990) 14 Fam LR 416
Muschinski v Dodds (1986) 160 CLR 583
Nemeth v Nemeth (1977) 17 ALR 500
Paru v Parij (1998) 72 SASR 153
Porter v McDonald [1984] WAR 271
Taddco v Catalano (1975) 11 SASR 492
Taddco v Taddco and Catalano (1978) 19 SASR 347
Troncone v Aliperti (1994) 6 BPR 13,291

Berdal v Burns [1990] WAR 140
Kralfly Pty Ltd v McVeigh, unreported; Fed C of A; 8 September 1995
KT & T Development v Tay (1995) 13 WAR 363

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : JANDRIC -v- JANDRIC & ANOR [1999] WASC 22 CORAM : COMMISSIONER BUSS QC HEARD : 19 MARCH 1999 DELIVERED : 18 MAY 1999 FILE NO/S : CIV 1797 of 1998 BETWEEN : GOJKO JANDRIC
    Plaintiff

    AND

    ELENA JANDRIC
    First Defendant

    REGISTRAR OF TITLES
    Second Defendant

Catchwords:

Caveat - Application under Transfer of Land Act 1893, s 138C - Caveatable interest - Serious question to be tried - Constructive Trust - Financial and labour contributions in the course of a de facto relationship - Balance of convenience - Form of caveat defective - Injunction granted and ancillary orders made under Transfer of Land Act 1893, s 138C(2)(a)(iii) and s 138C(2)(c)

Legislation:

Transfer of…

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AGLC
Jandric v Jandric [1999] WASC 22
Case
[1999] WASC 22
Decision Date

CaseChat Overview and Summary

In Jandric v Jandric, the Supreme Court of Western Australia considered whether the plaintiff, Gojko Jandric, could lodge a valid caveat against the defendant, Elena Jandric, to protect his alleged equitable interest in a property. The court found that the plaintiff's claim to an equitable interest in the property raised a serious question to be tried and that the balance of convenience favoured the plaintiff. However, the form of the plaintiff's caveat was defective as it did not specify the nature or extent of the interest claimed. The court granted an injunction restraining the defendant from dealing with the property unless the plaintiff's potential equitable interest was expressly taken into account. The court also ordered that the plaintiff promptly commence proceedings in the Supreme Court to determine the serious question to be tried.

The court held that the plaintiff's claim to an equitable interest in the property raised a serious question to be tried, as there was a substantial dispute between the parties in relation to the material facts. While the first defendant was able to produce numerous contemporaneous documents which suggested that her version of events may be more reliable, the court was not in a position, on the hearing of this originating summons, to make findings of fact. The court found that if the plaintiff's evidence was accepted at a trial, it would be unconscionable for the first defendant to deny that the plaintiff had acquired an equitable interest in her fee simple estate in the property.

The court also found that the balance of convenience favoured the plaintiff, as the evidence did not disclose that the first defendant would be prejudiced in any material respect by the maintenance of the existing caveat, the lodgment of a new caveat in substitution for the existing caveat, or the granting of an injunction to preserve the status quo until the serious question had been tried.

However, the court held that the plaintiff's caveat was defective in form, as it did not specify the nature or extent of the interest claimed. The court found that the appropriate orders were to grant an injunction until further order restraining the defendant from creating, disposing of, or dealing with any estate or interest in the property, unless the creation, disposition, or dealing was expressly subject to any proprietary estate or interest which the plaintiff may have in the property. The court also ordered that the plaintiff promptly commence proceedings in the Supreme Court by writ of summons for the purpose of determining the serious question to be tried.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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