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Krasnoff v Krasnoff

Krasnoff v Krasnoff

Case [2017] QDC 100 28 April 2017

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DISTRICT COURT OF QUEENSLAND

CITATION:

Krasnoff v Krasnoff [2017] QDC 100

PARTIES:

GEORGE KRASNOFF
(applicant)

v

MARIA KRASNOFF
(respondent)

FILE NO/S:

BD 2623/2015

DIVISION:

PROCEEDING:

Applications

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

28 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2017

JUDGE:

McGill SC DCJ

ORDER:

Matter to be relisted for further consideration.

CATCHWORDS:

JUDGMENTS AND ORDERS – Consent orders – interpretation – reference to adjustments for rent and outgoings – scope of “outgoings”.

EQUITY – Equitable remedies – account – no reference in order for account to time period – whether operation of limitation period to be implied.

TORRENS SYSTEM – Joint tenancy – sale and division of proceeds – adjustments for rent and outgoings – whether includes capital expenditure.

WORDS AND PHRASES – “outgoings”.

Property Law Act 1974 ss 37A, 38, 42, 43.

Re Bennett [1896] 1 Ch 778 – followed.
Brasington v Overton Investments Pty Ltd [2003] FCA 1523 – cited.
Re Cleveland [1894] 1 Ch 164 – followed.
Country Estates Co Ltd v Graves [1895] AC 113 – considered.
Crosse v Raw (1874) LR 9 Ex 209 – considered.
FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 – considered.
Fisher v Oborn [1968] 3 NSWR 447 – considered.
Foregard v Shanahan (1994) 35 NSWLR 206 – cited.
Fried v National Australia Bank Ltd (2001) 111 FCR 322 – cited.
General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6 – cited.
Re Highett & Bird's Contract [1903] 1 Ch 287 – considered.
Horne v Coetmore [1975] VR 75 – cited.
Jacobs v Seward (1872) LR 5 HL 464 – cited.
Re Jacobs’ & Stedman’s Contract [1942] Ch 400 – followed.
Re Jose [1941] SASR 26 – considered.
Leconfield Estate Co v Inland Revenue Commissioners [1970] 1 WLR 1133 – considered.
Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 236 – cited.
Lowther v Clifford [1927] 1 KB 130 – cited.
Midgley v Coppock (1979) 4 Ex D 309 – cited.
Muschinski v Dodds (1985) 160 CLR 583 – applied.
Nessdale Pty Ltd v Woodwark Bay Development Corporation Ltd [1991] QSC 161 – followed.
Newman v McNicol (1938) 38 SR (NSW) 609 – considered.
Patronis v Oinoi & Kampi Pty Ltd (Supreme Court NSW Eq Div, W4631/93, Young J, 23.2.94, unreported; BC 9402297) – considered.
Patterson v Farrell (1912) 14 CLR 348 – cited.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – cited.
R v Shaw (1848) 12 QB 427 – cited.
R & J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd (2008) 13 BPR 25,161 – cited.
Ranger v Ranger [2009] QCA 226 – cited.
Re Read & Park’s Contract [1956] VLR 745 – considered.
Smith v Smith [1939] 4 All ER 312 – cited.
Southcap Pty Ltd v Lend Lease Financial Planning Ltd (1997) Q Conv R 54-494 – considered.
Southcap Pty Ltd v Lend Lease Financial…

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 Krasnoff v Krasnoff

Details

AGLC: Krasnoff v Krasnoff [2017] QDC 100
Case: [2017] QDC 100
Decision Date: 28 April 2017

CaseChat Overview and Summary

Krasnoff v Krasnoff involved a dispute between the parties over the interpretation of consent orders that mandated an account of the proceeds from the sale of a jointly owned property. The court was tasked with determining whether the term "outgoings" in the orders included capital expenditure, and whether the limitation period applied to the account of those proceeds. The case was heard in the Family Court of Australia.

The primary legal issues before the court were the interpretation of the term "outgoings" within the context of the consent orders and the implications of the limitation period on the account of the proceeds from the sale. The court needed to decide if the outgoings referred to in the orders encompassed capital expenditure and whether the lack of a specific time period in the order for account meant that the limitation period should apply.

The court concluded that the term "outgoings" in the consent orders did not necessarily include capital expenditure, and that the lack of a specified time period in the order for account did not automatically imply the operation of the limitation period. The court found that the term "outgoings" typically refers to running costs and not to capital expenditure, and that the limitation period could be relevant, but only if the court specifically intended it to apply. Given these findings, the court determined that the matter needed to be relisted for further consideration to clarify these points.

The court ordered that the matter be relisted for further consideration to address the interpretation of "outgoings" and the applicability of the limitation period.

Orders

Orders of the court

Matter to be relisted for further consideration.

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.

Citations

AGLC Citation

Krasnoff v Krasnoff [2017] QDC 100

Most Recent Citation

Evans v Hollenberg [2024] QDC 56

Cases citing this decision · 1 of 1 shown

Evans v Hollenberg
[2024] QDC 56 Para 9

…ropriate distribution of the proceeds of sale of a co-owned property based on the parties’ beneficial interests. See also Krasnoff v Krasnoff [2017] QDC 100 at [50], [52]-[53].…

View all 1 citing cases →

Cases cited in this decision · 22 of 22 shown

Watson v Scott
[2015] QCA 267 Para 1

…e the terms of the draft order were the subject of negotiation between solicitors acting for each party. [11]Conveniently expounded in Watson v Scott [2015] QCA 267 at [30].…
Lee v Australia and New Zealand Banking Group Ltd
[2013] QCA 236 Para 1

…Anshun Pty Ltd (1981) 147 CLR 589, a proposition which can be difficult to establish.[37] [37]See Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 236 at [78].…
Ranger v Ranger
[2009] QCA 226 Para 1

…carried on in other proceedings, particularly if commenced before the originating application for an order under s 38 was filed. [38] Ranger v Ranger [2009] QCA 226; Re Wlodarczyk [2000] 2 Qd R 216.…
Vella v Permanent Mortgages Pty Ltd
[2008] NSWSC 505 Para 1

…ture which may be required to be made by a lessor.[21] The example given was R & J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd (2008) 13 BPR 25,161, where the owner of a strata title property had to pay a substantial sum to the Owners Corporation to obtain an easement which would benefit the less…
Brasington v Overton Investments Pty Ltd
[2003] FCA 1523

…Law Act 1974 ss 37A, 38, 42, 43. Re Bennett [1896] 1 Ch 778 – followed. Brasington v Overton Investments Pty Ltd [2003] FCA 1523 – cited. Re Cleveland [1894] 1 Ch 164 – followed. Country Estates Co Ltd v Graves [1895] AC 113 – considered. Crosse v Raw (1874) LR 9 Ex 209 – considered. FAI Traders Insurance Co Ltd…
Fried v National Australia Bank
[2001] FCA 1280 Para 1

…85] 2 Qd R 6 at 9. I would be prepared to join the trustees as respondents if they or the respondent sought the protection this would give: Fried v National Australia Bank Ltd (2001) 111 FCR 322 at 373, 376.…
Fried v National Australia Bank Ltd
[2001] FCA 907 Para 1

…ed to join the trustees as respondents if they or the respondent sought the protection this would give: Fried v National Australia Bank Ltd (2001) 111 FCR 322 at 373, 376.…
Lend Lease Financial Planning Limited v Southcap Pty Ltd
[1998] QCA 117 Para 1

…In Southcap Pty Ltd v Lend Lease Financial Planning Ltd (1997) Q Conv R 54-494 Thomas J dealt with and rejected an argument that an agreement for lease made just by an exchange of letters, without the full terms of the lease being agreed, was void for uncertainty. One of the matters relied on was that the letters referred to the tenant’s obligation to pay “…
Muschinski v Dodds
[1985] HCA 78 Para 1

…e other, on ordinary restitutionary principles.[33] [33]Goff and Jones “The Law of Unjust Enrichment” (8 th Ed 2011) p 519-21; Muschinski v Dodds (1985) 160 CLR 583 at 596-7.…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 1

…, subject I suppose to an argument that such a claim would now be barred by an estoppel of the kind in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, a proposition which can be difficult to establish.[37] [37]See Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 236 at [78].…
Squire v Rogers
[1979] FCA 85 Para 1

…and caravan sites, when the property was finally sold under a provision similar to s 38, was considered by the Full Federal Court in Squire v Rogers (1979) 39 FLR 106. In that case at trial an order for an account had been made, but the order did not deal with the various matters of detail which ought to have been…
Tooth & Co Ltd v Newcastle Developments Ltd
[1966] HCA 57

…h & Co Ltd v Newcastle Developments Ltd (1966) 116 CLR 167 – cited. Warner Brothers First International Pictures Pty Ltd v Sydney County Council (1958) 58 SR (NSW) 270 – cited. Washband v Buck [1997] QSC 117 – cited. Watson v Scott [2015] QCA 267 – applied. Re Wlodarczyk [2000] 2 Qd R 216 – cited. COUNSEL: D J Anania…
Patterson v Farrell
[1912] HCA 43 Para 1

…re. [25]The position is different if both parties are liable to the same Land Tax in respect of the property: Patterson v Farrell (1912) 14 CLR 348 at 352; Warner Brothers First International Pictures Pty Ltd v Sydney County Council (1958) 58 SR (NSW) 270.…
Nessdale Pty Ltd v Woodwark Bay Development Corporation Ltd
[1991] QSC 161 Para 1

…but ultimately the meaning has to be ascertained from the context in which it appears. In Nessdale Pty Ltd v Woodwark Bay Development Corporation Ltd [1991] QSC 161 de Jersey J as he then was had to resolve various disputes about the interpretation and operation of a joint venture agreement, including one as to w…
Washband v Buck
[1997] QSC 117 Para 1

…at 222, but simply as an example of an application of the statutory entitlement to account. The decision was also cited by Muir J in Washband v Buck [1997] QSC 117 in support of the proposition that where receipt of a benefit by a co-owner would be otherwise unfair, a co-owner effecting the improvements is entit…
[1904] 1 KB 447
[1904] 1 KB 447 Para 1

…for outgoings of a capital nature under an outgoings clause in a lease is shown, perhaps most graphically, by the decision in Stockdale v Ascherberg [1904] 1 KB 447, where a lease of a house for three years with a covenant to pay “all outgoings in respect of the premises” was held to cover the cost of work the la…
Sharpe v San Paulo Railway Co
(1873) 8 Ch App 597 Para 1

…of the Civil Proceedings Act 2011 s 7(1).[46] [45]Jacobs’ Law of Trusts in Australia (5 th Ed 1986) p 640, citing Sharpe v San Paulo Railway Co (1873) 8 Ch App 597. There is some authority that, in special or exceptional circumstances, the beneficiaries may sue in their own name, even to enforce a claim at law: Dal Po…
[1927] 1 KB 130
[1927] 1 KB 130 Para 1

…That decision was followed by the Court of Appeal in Lowther v Clifford [1927] 1 KB 130 at 136, where the point was made that a covenant to pay outgoings can be worded so widely as to catch obligations which are unknown and uncertain as well as obligations experience has led the tenant to expect. It was also follo…
[1895] AC 113
[1895] AC 113 Para 1

…ngs are to be apportioned between vendor and purchaser by reference to the period of the time covered by them.[24] In Country Estates Co Ltd v Graves [1895] AC 113, the contract contained a provision that “all rates and other outgoings” should “be adjusted as usual.” The contract was for the sale of a parcel of…
[1970] 1 WLR 1133
[1970] 1 WLR 1133 Para 1

…In Leconfield Estate Co v Inland Revenue Commissioners [1970] 1 WLR 1133 at 1143, Megarry J said that the term “outgoings” is “one of great amplitude of meaning…the largest word which can be used”.[31] On the other hand, when dealing with the correct interpretation of a particular revenue statute then in issue he sa…
(1848) 12 QB 427
(1848) 12 QB 427

…thority v Anshun Pty Ltd (1981) 147 CLR 589 – cited. R v Shaw (1848) 12 QB 427 – cited. R & J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd (2008) 13 BPR 25,161 – cited. Ranger v Ranger [2009] QCA 226 – cited. Re Read & Park’s Contract [1956] VLR 745 – considered. Smith v Smith [1939] 4 All ER 312…
[1897] 1 QB 74
[1897] 1 QB 74

…[31]Citing Tubbs v Wynne [1897] 1 QB 74 at 78, a decision on its use in a covenant in a contract for the sale of land.…

Legislation cited in this decision · 4

Property Law Act 1974 (Qld)
37A, 38, 42, 43 4 mentions (from Para 1)
Limitation of Actions Act 1974 (Qld)
10(2) 2 mentions (from Para 1)
Civil Proceedings Act 2011 (Qld)
7(1) 1 mention (from Para 1)
Queensland Building and Construction Commission Act 1991 (Qld)
42 1 mention (from Para 1)

CITATION:	Krasnoff v Krasnoff [2017] QDC 100
PARTIES:	GEORGE KRASNOFF (applicant) v MARIA KRASNOFF (respondent)
FILE NO/S:	BD 2623/2015
DIVISION:
PROCEEDING:	Applications
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	28 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2017
JUDGE:	McGill SC DCJ
ORDER:	Matter to be relisted for further consideration.
CATCHWORDS:	JUDGMENTS AND ORDERS – Consent orders – interpretation – reference to adjustments for rent and outgoings – scope of “outgoings”. EQUITY – Equitable remedies – account – no reference in order for account to time period – whether operation of limitation period to be implied. TORRENS SYSTEM – Joint tenancy – sale and division of proceeds – adjustments for rent and outgoings – whether includes capital expenditure. WORDS AND PHRASES – “outgoings”. Property Law Act 1974 ss 37A, 38, 42, 43. Re Bennett [1896] 1 Ch 778 – followed. Brasington v Overton Investments Pty Ltd [2003] FCA 1523 – cited. Re Cleveland [1894] 1 Ch 164 – followed. Country Estates Co Ltd v Graves [1895] AC 113 – considered. Crosse v Raw (1874) LR 9 Ex 209 – considered. FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 – considered. Fisher v Oborn [1968] 3 NSWR 447 – considered. Foregard v Shanahan (1994) 35 NSWLR 206 – cited. Fried v National Australia Bank Ltd (2001) 111 FCR 322 – cited. General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 Qd R 6 – cited. Re Highett & Bird's Contract [1903] 1 Ch 287 – considered. Horne v Coetmore [1975] VR 75 – cited. Jacobs v Seward (1872) LR 5 HL 464 – cited. Re Jacobs’ & Stedman’s Contract [1942] Ch 400 – followed. Re Jose [1941] SASR 26 – considered. Leconfield Estate Co v Inland Revenue Commissioners [1970] 1 WLR 1133 – considered. Lee v Australia and New Zealand Banking Group Ltd [2013] QCA 236 – cited. Lowther v Clifford [1927] 1 KB 130 – cited. Midgley v Coppock (1979) 4 Ex D 309 – cited. Muschinski v Dodds (1985) 160 CLR 583 – applied. Nessdale Pty Ltd v Woodwark Bay Development Corporation Ltd [1991] QSC 161 – followed. Newman v McNicol (1938) 38 SR (NSW) 609 – considered. Patronis v Oinoi & Kampi Pty Ltd (Supreme Court NSW Eq Div, W4631/93, Young J, 23.2.94, unreported; BC 9402297) – considered. Patterson v Farrell (1912) 14 CLR 348 – cited. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – cited. R v Shaw (1848) 12 QB 427 – cited. R & J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd (2008) 13 BPR 25,161 – cited. Ranger v Ranger [2009] QCA 226 – cited. Re Read & Park’s Contract [1956] VLR 745 – considered. Smith v Smith [1939] 4 All ER 312 – cited. Southcap Pty Ltd v Lend Lease Financial Planning Ltd (1997) Q Conv R 54-494 – considered. Southcap Pty Ltd v Lend Lease Financial…