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Jovanovic v Magri

Jovanovic v Magri

Case [2017] VSCA 373 14 December 2017

Appeal

Jurisdiction

Abuse of Process

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0034

JELENA JOVANOVIC	Applicant
v
KEVIN MAGRI	Respondent

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JUDGES:	WHELAN, PRIEST and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2017
DATE OF JUDGMENT:	14 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 373
JUDGMENT APPEALED FROM:	[2016] VCC 1480 (Judge Anderson)

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APPEAL – Appellate review of findings of fact – Finding that parties lacked credibility – Inferences drawn from established facts – Whether test in Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 applies to inferences – Advance of monies to purchase unit – Newly commenced intimate relationship – Whether monies advanced as loan or gift –Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Fox v Percy (2003) 214 CLR 118 considered – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D J Farrands with Ms D Foong
For the Respondent	Mr S W Stuckey	Wisewould Mahoney

WHELAN JA

PRIEST JA
McLEISH JA:

The applicant Jelena Jovanovic purchased and renovated a unit in Surfers Paradise on the Gold Coast, Queensland in 2015. All the funds required for its purchase and renovation were paid by the respondent Kevin Magri. They had met a few months earlier and a relationship had developed. The central issue at trial was whether Mr Magri advanced the funds by way of loan or as a gift. He said that he was just helping a friend and that the payments were a loan. She said that they were much closer than friends and that the amounts in question were a gift.[1]
[1]Magri v Jovanovic [2016] VCC 1480 [1]–[3] (‘Reasons’).

Mr Magri sued in the County Court for recovery of the alleged loan monies. He was substantially successful. The trial judge found that, although the parties were in a closer relationship than Mr Magri had claimed, the payments he made to purchase the unit, but not for its renovation, constituted a loan to Ms Jovanovic. As no agreement had been reached between the parties as to the terms of repayment, the total amount was payable on demand.[2] Ms Jovanovic now seeks leave to appeal against that decision.
[2]Ibid [53]–[57].

For the reasons that follow, leave to appeal should be granted but the appeal should be dismissed.

Factual background

In early March 2015, the parties met and formed a relationship, which the judge found was ‘more than friendship’.[3] When they first met, the applicant told the respondent of her ‘dream’ to buy a unit on the Gold Coast and to live and work there. Shortly afterwards, the respondent suggested that they travel to the Gold Coast together so that the applicant could look at apartments with a view to purchasing one.
[3]Ibid [19].

On 22 April 2015, a lending organisation called Hippo Home Loans sent an email to the applicant with what appeared to be a response to an enquiry by the applicant about its mortgage pre-approval process. The applicant gave evidence that this was only…

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 Jovanovic v Magri

Details

AGLC: Jelena Jovanovic v Kevin Magri [2017] VSCA 373
Case: [2017] VSCA 373
Decision Date: 14 December 2017

CaseChat Overview and Summary

Jovanovic v Magri is an appeal against findings of fact made in a lower court, which concerned the credibility of the parties involved in a dispute over the nature of an advance of monies made to purchase a unit in a newly commenced intimate relationship. The case was heard in the Supreme Court of Victoria, with the appeal subsequently heard in the Court of Appeal. The central legal issue was whether the test from Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 applies to inferences drawn from established facts, particularly regarding the characterisation of an advance of monies as a loan or a gift. The Court of Appeal considered the lower court’s assessment of the parties' credibility in light of the established facts, and the implications of this assessment on the characterisation of the advance of monies.

The Court of Appeal examined the established facts and the inferences drawn by the lower court, applying the principles from Robinson Helicopter Co Inc v McDermott and Fox v Percy (2003) 214 CLR 118. It was noted that the lower court had made findings about the credibility of the parties, which influenced the characterisation of the advance of monies. The Court of Appeal concluded that the test from Robinson Helicopter Co Inc v McDermott was relevant to the lower court’s assessment of credibility and the inferences drawn from established facts. The court found that the lower court had not erred in its assessment of the parties' credibility and the inferences drawn, and therefore dismissed the appeal.

The Court of Appeal held that the lower court’s findings regarding the credibility of the parties and the characterisation of the advance of monies as a loan or a gift were soundly based on the established facts. The appeal was dismissed, and the findings of the lower court were upheld. The court emphasised that the lower court’s assessment of credibility and the inferences drawn from established facts were within its jurisdiction, and the appeal did not provide a basis for the Court of Appeal to interfere with those findings.

Orders