Koprivnjak v Koprivnjak - [2023] NSWCA 2

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:
F Corsaro SC (Appellant)
C Bolger (Respondent)
Solicitors:
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:

[2022] NSWSC 586
[2022] NSWSC 756

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…

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.

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Details

Case: [2023] NSWCA 2
Decision Date: 02 February 2023

CaseChat Overview and Summary

The appeal concerned a dispute between a mother, Ms. Koprivnjak (the respondent), and her son, Mr. Koprivnjak (the appellant), regarding the beneficial ownership of a property. The appellant sought to establish that he was the sole beneficial owner of the property, which had been purchased in the mother's name. The primary dispute revolved around whether the property was held by the mother on trust for the son, or whether she held a beneficial interest in it. The matter was heard in the Court of Appeal of New South Wales.

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.

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: F Corsaro SC (Appellant) C Bolger (Respondent) Solicitors: 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: [2022] NSWSC 586 [2022] NSWSC 756 Date of Decision: 16 May 2022 Before: Peden J File Number(s): 2020/00339514