Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Koprivnjak v Koprivnjak [2023] NSWCA 2 Hearing dates: 6 December 2022 Date of orders: 02 February 2023 Decision date: 02 February 2023 Before: Leeming JA at [1]
Mitchelmore JA at [5]
Griffiths AJA at [6]Decision: (1) The appeal is dismissed, with costs.
(2) Any party seeking a variation to the costs order in order (1) above may file and serve a brief outline of written submissions not exceeding two (2) pages in length within 28 days of the date of this judgment. Within a further 14 days thereof, the other party should file and serve a brief outline of written submissions in reply not exceeding two (2) pages in length.
Catchwords: EQUITY – Trusts and trustees – Resulting trusts – Purchase money trusts – Presumption of advancement
EQUITY – Trusts and trustees – Constructive trusts – Common intention
Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Bassett v Bassett [2021] NSWCA 320
Bassett v Cameron [2021] NSWSC 207
Bijkerk Investments Pty Ltd Bikic [2020] NSWSC 133
Bosanac v Commissioner of Taxation [2022] HCA 34
Commissioner of Taxation v Bosanac (No 7) [2021] FCAFC 158
Green v Green (1989) 17 NSWLR 343
Jain v Amit Laundry Pty Ltd [2019] NSWCA 20
Koprivnjak v Koprivnjak [2022] NSWSC 586
Koprivnjak v Koprivnjak (No 2) [2022] NSWSC 756
Massoud v Nationwide News Pty Ltd; Massoud v Fox
Sports Australia Pty Ltd [2022] NSWCA 150
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25
Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6
Category: Principal judgment Parties: John Koprivnjak (Appellant)
Natalie Koprivnjak (Respondent)Representation: Counsel:
Solicitors:
F Corsaro SC (Appellant)
C Bolger (Respondent)
Avondale Lawyers (Appellant)
Chatswood Law (Respondent)
File Number(s): 2022/00171716 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Equity
- Citation:
- Date of Decision:
- 16 May 2022
- Before:
- Peden J
- File Number(s):
- 2020/00339514
HEADNOTE
[This headnote is not to be read as part of the judgment]
In November or December 2011, the respondent, Ms Natalie Koprivnjak, acquired in her name alone a property in Shoal Bay NSW for a purchase price of $300,000. The appellant, Mr John Koprivnjak, who is the respondent’s father, assisted her financially with the purchase by providing the $15,000 deposit and transferring a further $60,000 into her bank account to apply towards the purchase price. Those sums derived from the bank account of the appellant’s company, Titles Strata Management Pty Ltd (TSM). On 18 November 2011, the parties executed a mortgage referencing an advance of $75,000 to the respondent. The balance of the purchase price was paid by a loan taken out by the respondent which was secured by a mortgage in favour of the National Australia Bank (NAB).
In the years following the purchase, the appellant paid towards renovations and property maintenance and caused TSM…
Keep reading for free
Create a free CaseChat account to read Koprivnjak v Koprivnjak and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] NSWCA 2
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the appellant had not established a resulting trust or a constructive trust over the property. Specifically, the court had to determine whether the presumption of advancement applied, or if there was evidence of a common intention constructive trust, such that the property was held by the mother solely for the benefit of the son.
The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court reasoned that the presumption of advancement, which presumes a gift from a parent to a child, was not displaced by the evidence. Furthermore, the appellant failed to establish the necessary elements for a common intention constructive trust, which would require proof of a common intention that the property be held beneficially for the appellant, reliance on that intention by the appellant, and detriment suffered by the appellant as a result of that reliance. The court found no error in the primary judge's assessment of the evidence and the application of these equitable principles.
The appeal was dismissed, with costs awarded to the respondent. The judgment also provided a mechanism for any party seeking a variation to the costs order to file written submissions within a specified timeframe.
Orders
Orders of the court
(1) The appeal is dismissed, with costs.
(2) Any party seeking a variation to the costs order in order (1) above may file and serve a brief outline of written submissions not exceeding two (2) pages in length within 28 days of the date of this judgment. Within a further 14 days thereof, the other party should file and serve a brief outline of written submissions in reply not exceeding two (2) pages in length.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.