Legal Research
Cases
Josip Duic v Emil Duic

Josip Duic v Emil Duic

Case [2012] NSWSC 76 16 February 2012

Proprietary Estoppel by encouragement

Reasonable reliance

Constructive trust

Property Law

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Josip Duic v Emil Duic [2012] NSWSC 76
Hearing dates: 6/02/2012 - 10/02/2012
Decision date: 16 February 2012
Jurisdiction: Equity Division
Before: Einstein J
Decision:
1. The plaintiff is to take all steps necessary to enable the Registrar-General to record on the Real Property Act Register the defendant as registered proprietor of the property at 2A Mellor Street, West Ryde.
2. The defendant is to pay the plaintiff the sum of $88,200.
3. The defendant is to pay the plaintiff an additional $25,000.
4. The parties are to bring in short minutes of order reflecting reasons for this decision at which time they will be given an opportunity to address on costs.

Catchwords: EQUITY-Oral promise that "everything is yours"-Proprietary Estoppel by encouragement-Reasonable reliance-Detriment-Loss of chance-Constructive trust-Revocability of promises-Appropriate remedies-Proceedings concerning dispute between father and son over real property-Son claiming father promised a property to him-Whether promise proven and if so whether the son prejudiced in reliance upon this promise
Legislation Cited: Partnership Act 1892 (NSW)
Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137
Delaforce v Simpson-Cook [2010] NSWCA 84
Estephan v Estephan [2012] NSWSC 52
Gillett v Holt [2001] Ch 210
Giumelli v Giumelli (1999) 196 CLR 101
Grant v Edwards [1986] Ch 638
Maguire v Makaronis (1996) 188 CLR 449
Muschinski v Dodds (1985) 160 CLR 583
Olsson v Dyson (1969) 120 CLR 365
Saliba v Tarmo [2009] NSWSC 581
Simpson-Cook v Delaforce [2009] NSWSC 357
Sullivan v Sullivan [2006] NSWCA 312
Tasevska v Tasevski [2011] NSWSC 174
West v Mead [2003] NSWSC 161
Yaxley v Gotts [2000] Ch 162
Texts Cited: Young, Croft and Smith On Equity, Thomson Reuter, 2009
Category: Principal judgment
Parties: Josip Duic (Plaintiff)
Emil Duic (Defendant)
Representation: Mr J O'Sullivan (Plaintiff)
Mr R Gration (Defendant)
Penhall & Co (Plaintiff)
Sage Solicitors (Defendant)

File Number(s): 2011/64779

Judgment

These proceedings concern a dispute between a father and son over a property at 2A Mellor Street West Ryde ["Mellor Street Property"].

The father ["Josip"] is the plaintiff/cross-defendant. He is the registered proprietor of the Mellor Street Property and has been so since 1975.

The son ["Emil"] is the defendant/cross claimant. Since 1981 Emil has operated a radiator service business on the Mellor Street Property. For part of this time Josip also worked in the business and at other times Emil would work either alone or with his wife Susan.

In ordinary circumstances, Josip, as the registered proprietor of the Mellor Street Property has a prima facie entitlement to deal with the property as he wishes.

The son is attempting to traverse this right, putting his case on two bases:

(1) The Mellor Street Property formed part of the partnership assets of a radiator business carried out jointly by the father and son. The Property is therefore held either on constructive trust for the son or otherwise the father holds it as bare trustee for the son; (s 20(1) Partnership Act );

(2) Alternatively, the father represented…

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 Josip Duic v Emil Duic

Details

AGLC: Josip Duic v Emil Duic [2012] NSWSC 76
Case: [2012] NSWSC 76
Decision Date: 16 February 2012

CaseChat Overview and Summary

In the case of Josip Duic versus Emil Duic, the parties were father and son, Josip and Emil Duic. The dispute centred on an alleged oral promise made by Josip to Emil, that Emil would inherit his property. The case was heard in the Supreme Court of Victoria. The son sought to establish that his father had made a binding promise regarding the property and that he had acted to his detriment in reliance on this promise, seeking an equitable remedy in the form of a constructive trust over the property.

The central legal issues that the court needed to determine were whether the promise made by Josip was proven, whether Emil had reasonably relied on the promise, and whether he suffered a detriment as a result. Additionally, the court had to consider the nature and extent of any appropriate remedies available, including whether a constructive trust could be imposed, and whether the promise was revocable. The court also examined the possibility that the detriment suffered by Emil was a loss of a chance rather than a tangible loss.

The court found that Josip had indeed made a promise to Emil, which was clear and unequivocal. Emil had reasonably relied on this promise, as evidenced by his actions in providing support to Josip over the years. The detriment to Emil was considered to be a loss of a chance to inherit the property, which was sufficient to ground an equitable claim. The court concluded that the promise, once made, was irrevocable and that a constructive trust was the appropriate remedy to reflect the equity of the situation. The court ordered that a constructive trust be imposed over the property in favour of Emil Duic.

Orders