JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7 October 2010
DATE OF JUDGMENT:	29 April 2011
CASE MAY BE CITED AS:	Krsteski & Anor v Jovanoski
MEDIUM NEUTRAL CITATION:	[2011] VSC 166

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APPEAL – Appeal from a decision of the Victorian Civil and Administrative Tribunal - Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98, 117 and 148 - Property Law Act1958 (Vic) Part IV, ss 225 and 228 - Claim by co-owner for order for sale of land and division of proceeds – Cross-claim by other co-owners for order for transfer of whole of land to them - Claim against deceased’s estate - Tribunal unable to make findings on balance of probabilities – Cross-claim determined by onus of proof - Whether tribunal’s conclusion open on the evidence – Whether actual or constructive failure to exercise jurisdiction – Whether failure to give adequate reasons for decision – Appeal on cross-claim dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr G Uren QC with Mr M. McKenzie	Jim McCarthy Lawyers
For the Respondent	Mr J. Evans	Pryles & Co

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 2

What did the tribunal have to decide?........................................................................................... 6

What did the tribunal decide?......................................................................................................... 8

How did the Deputy President arrive at the result?.................................................................. 11

Onus of proof.................................................................................................................................... 13

Findings not open on the evidence.............................................................................................. 14

The test where findings are not made...................................................................................... 14
Analysis........................................................................................................................................ 18
Krsteskis arguments on the evidence...................................................................................... 20
Possession of the land and custody of the title...................................................................... 21
Krsteskis’ arguments fell short................................................................................................. 23
Whether the tribunal disbelieved the Kresteskis................................................................... 25
Conclusion on ‘not open’ ground............................................................................................. 26

Constructive failure to exercise the jurisdiction......................................................................... 26

Failure to deal with the whole of the evidence?.................................................................... 27

Failure to give adequate reasons................................................................................................... 29

Conclusion......................................................................................................................................... 31

HIS HONOUR:

Introduction

On 16 November 2009 the Victorian Civil and Administrative Tribunal (VCAT), constituted by Deputy President MacNamara, ordered[1] that a rural property at Bannockburn, Victoria, be sold and the proceeds be divided. The proceeds were to be applied (after commission and selling costs) as to one half to Atanas (“Arthur”) and Polixent (“Pauline”) Krsteski (the appellants in this proceeding) and, as to the other half, to Sussan Spasia Jovanoski (the respondent in this proceeding), as administratrix of the will and estate of her late father, Trajce (“Terry”) Jovanoski.
[1]Nowhere in the materials before me were the tribunal’s orders actually exhibited. I have assumed that the draft notice of appeal correctly sets out the orders as made.

The order was made pursuant to s 225 of the Property Law Act1958 (Vic) on a claim brought by Sussan Jovanoski (whom I will simply refer to as “Sussan”, to distinguish her from her parents) on the footing that she (as…

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 Krsteski v Jovanoski

Details

AGLC: Krsteski v Jovanoski [2011] VSC 166
Case: [2011] VSC 166
Decision Date: 29 April 2011

CaseChat Overview and Summary

In the case of Krsteski v Jovanoski, the appellant sought an order for the sale of land and division of the proceeds from the sale, while the respondents, who were also co-owners of the property, made a cross-claim for an order transferring the entire land to them. The dispute was heard and determined by the Victorian Civil and Administrative Tribunal (VCAT) and the matter was appealed to the Supreme Court of Victoria. The appeal was centred around the tribunal's decision-making process and the adequacy of the reasons provided for its determination of the cross-claim.

The legal issues before the court were whether the tribunal's conclusion was open on the evidence presented, whether there was an actual or constructive failure to exercise jurisdiction, and whether the tribunal failed to give adequate reasons for its decision. The appellant argued that the tribunal was unable to make findings on the balance of probabilities, and the onus of proof should have been placed on the respondents for their cross-claim. The respondents contended that the tribunal's decision was correct and adequately supported by the evidence.

The court found that the tribunal's conclusion on the cross-claim was open on the evidence, and there was no actual or constructive failure to exercise jurisdiction. The court held that the tribunal had considered the evidence and applied the correct legal principles in reaching its decision. Furthermore, the court found that the tribunal had provided adequate reasons for its decision, which were sufficiently detailed and based on the evidence presented. Consequently, the appeal was dismissed, and the tribunal's decision on the cross-claim was upheld.

As a result of the court's decision, the cross-claim made by the respondents for an order transferring the entire land to them was dismissed, and the appellant's appeal was also dismissed. The tribunal's decision on the cross-claim was affirmed, and no further orders were made in relation to the appeal.

Orders