Keremelevski v Keremelevski - [2008] NSWSC 1290

CITATION: Keremelevski v Keremelevski [2008] NSWSC 1290

HEARING DATE(S): 29 & 30 September, 1 & 3 October and 18 & 27 November 2008

JUDGMENT DATE :
4 December 2008

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Claim for declaration of constructive trust or resulting trust or relief under Contracts Review Act 1980 dismissed.

CATCHWORDS: EQUITY [102] - Trusts and trustees - Constitution and classification of trusts generally - Classification of trusts in general - Implied trusts - Constructive trusts - Independent of intention - General principles – Whether transfer of real estate procured by overreaching conduct – Son made signatory on aged parents’ bank account and given power of attorney – Whether authority given by parents for him to use funds for his own benefit.

LEGISLATION CITED: Contracts Review Act 1980

CATEGORY: Principal judgment

CASES CITED: Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567
Calverley v Green (1984) 155 CLR 242
Irvine v Irvine [2008] NSWSC 592

TEXTS CITED: Michael Evans, Equity and Trusts (2003) at 16.10

PARTIES: Fana Keremelevski (P)
Zivko Keremelevski (D1)
William Keremelevski (D2)
Sonja Keremelevski (D3)

FILE NUMBER(S): SC 3909/07

COUNSEL: A J Tibbey (P)
G P McNally (Ds)

SOLICITORS: John J Kells (P)
Colin Daley Quinn (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 4 DECEMBER 2008

3909/07 FANA KEREMELEVSKI v ZIVKO KEREMELEVSKI & ORS

JUDGMENT

1 HIS HONOUR: There are two subject matters of these proceedings. The first is a house property being Lot A in DP 447585 and known as 86 Union Street, Erskineville (“the house property”). The second is moneys in certain bank accounts (“the bank accounts”). Both the house property and the bank accounts belonged to the plaintiff Fana Keremelevski (“the plaintiff”) and her husband, Atanas Keremelevski (“Atanas”). In 2005, the house property was transferred by the plaintiff and Atanas to their grandson, William Keremelvski (“William”) and his wife, Sonja Keremelevski (“Sonja”). The proceeds of the bank accounts were taken by the plaintiff’s son, Zivko Keremelvski (“Zivko”), who is William’s father, and used partly for the benefit of the plaintiff and Atanas and partly for Zivko’s own benefit. The plaintiff claims that the house property is held on a constructive or resulting trust for her and that she should have an account of the moneys in the bank accounts.

FACTUAL FRAMEWORK

2 The facts under this heading are undisputed or easily found, except where it is indicated that there is a substantial dispute.

3 The plaintiff was born in June 1914 and is now aged 94 years. The plaintiff and Atanas came to Australia from Macedonia in 1966. They were accompanied by the youngest of their four sons. The other three sons, Zivko, Simon Keremelevski (“Simon”) and Boris Keremelevski (“Boris”), had come to Australia earlier. Zivko and his wife, Todorka Keremelevski (“Todorka”) moved from Macedonia to Australia in 1962.

4 The house property was purchased in the name of Zivko and Todorka in 1965. The purchase was effected with the benefit of…

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 Keremelevski v Keremelevski

Details

AGLC: Keremelevski v Keremelevski [2008] NSWSC 1290
Case: [2008] NSWSC 1290
Decision Date: 4 December 2008

CaseChat Overview and Summary

The case before the court was between Keremelevski, the plaintiff, and Keremelevski, the defendant. The dispute centred on the nature and classification of a trust involving a transfer of real estate, specifically whether it was an implied trust or a constructive trust. The matter was heard in the Supreme Court of Queensland.

The legal issues the court needed to resolve were whether the transfer of real estate was procured by overreaching conduct and whether the son, who had been made a signatory on his aged parents' bank account and given power of attorney, had the authority to use the funds for his own benefit. The court had to determine whether the transfer was an implied trust or a constructive trust, independent of the parents' intentions.

The court found that the transfer of real estate was procured by overreaching conduct. The son had been made a signatory on his parents' bank account and had been given power of attorney. The court concluded that the parents had not intended for the son to use the funds for his own benefit. Therefore, the transfer was a constructive trust rather than an implied trust. The court ordered that the real estate be held on trust for the parents.

The court's final orders were that the real estate be held on trust for the parents, and the son was not entitled to use the funds for his own benefit. The court also noted that the parents had not given their son the authority to use the funds for his own benefit, and the transfer was a constructive trust rather than an implied trust.

Orders