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Makaritis v Makaritis (No 2)

Makaritis v Makaritis (No 2)

Case [2022] NSWSC 1690 9 December 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Makaritis v Makaritis (No 2) [2022] NSWSC 1690
Hearing dates: 17, 18, 19, 20, 26 October 2022
Date of orders: 9 December 2022
Decision date: 09 December 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [190]-[193]

Catchwords:
EQUITY – plaintiff transfers house to company controlled by first defendant for refinancing – property to be rented out to service mortgage – granny flat to be built on the property for the plaintiff to live in rent-free – plaintiff contributes money toward the property – plaintiff makes proprietary claim over the property – property subject to a joint endeavour constructive trust – claims for proprietary estoppel and unconscionable conduct not established

Legislation Cited:
Australian Consumer Law
Residential Tenancies Act 2010, s 85

Cases Cited:
Alati v Kruger (1955) 94 CLR 216
Austin v Hornby [2011] NSWSC 1059
Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460
Baumgartner v Baumgartner (1987) 164 CLR 137
Henderson v Miles (No 2) [2005] NSWSC 867
Knox v Knox (Supreme Court of New South Wales, Young J, 16 December 1994)
Makaritis v Makaritis [2022] NSWSC 468
Muschinski v Dodds (1985) 160 CLR 583
Saitannis v Katsolos [2022] NSWSC 1468
Woods v McKinlay (No 2) [2021] NSWSC 1510

Category: Principal judgment
Parties: Bill Makaritis (Plaintiff)
Luke William Makaritis (First Defendant)
Hellenic Property Holdings Pty Limited (Second Defendant)
Representation:
Counsel:
B Zipser (Plaintiff)
M Condon SC (Defendants)
Solicitors:
Cogent Lawyers (Plaintiff)

File Number(s): 2020/221695
Publication restriction: Nil

Judgment

These proceedings concern a family dispute over a property situated in Maryland which is a north-western suburb of Newcastle. For convenience, and without intending disrespect, I will refer to the parties and the other members of their family who feature in this judgment by their given names.
The Maryland property was formerly registered in the name of, and occupied by, the plaintiff, Bill Makaritis (“Bill”). Bill is a retired businessman who is on a disability support pension. He was born in August 1961.
In 1982, Bill married Sally Canarios (“Sally”). They had two sons; his eldest son, Luke William Makaritis (“Luke”), who was born in September 1982 and is the first defendant, and Adam Makaritis (“Adam”), who was born in October 1985. The marriage broke up in about 1998. Between 1999 and 2016, Bill was in a de facto relationship with Candice Maree Amos (“Candice”). They have a daughter, Sienna Areti Makaritis, who was born in November 2002.
In 2019, following family law proceedings between Bill and Candice, Bill transferred the Maryland property to the second defendant, Hellenic Property Holdings Pty Limited (“HPH”). HPH holds the property as trustee of a discretionary trust called the Makaritis Family Trust (“the Trust”).
HPH is owned and controlled by Luke, who is also the appointor of the Trust. Both Bill and Luke and their heirs “ex sanguinis” [sic] are named as “Primary Beneficiaries” to whom assets and income may be distributed at the Trustee’s discretion. Luke is a solicitor and…

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 Makaritis v Makaritis (No 2)

Details

AGLC: Makaritis v Makaritis (No 2) [2022] NSWSC 1690
Case: [2022] NSWSC 1690
Decision Date: 09 December 2022

CaseChat Overview and Summary

The case of Makaritis v Makaritis (No 2) was heard in the Supreme Court of Victoria. The plaintiff sought to establish a proprietary interest over a house, which was transferred by her to a company controlled by the first defendant. The property in question was to be rented out to service the mortgage taken out by the company, with the plaintiff intending to occupy a granny flat to be constructed on the property rent-free. The plaintiff contributed money towards the purchase and construction of the property, leading her to claim a proprietary interest over it. The court was required to determine whether a joint endeavour constructive trust existed, as well as whether the claims for proprietary estoppel and unconscionable conduct were established.

The court examined the nature of the contributions made by the plaintiff and whether they were intended to result in a proprietary interest in the property. It was noted that the plaintiff's contributions were made with the understanding that they would result in her occupying the granny flat rent-free, but not necessarily in her acquiring a proprietary interest over the property. The court found that a joint endeavour constructive trust did exist, as the contributions made by the plaintiff were intended to result in a benefit to her, namely the right to occupy the granny flat rent-free. However, the court held that the claims for proprietary estoppel and unconscionable conduct were not established, as there was no clear and unequivocal promise made by the first defendant that the plaintiff would acquire a proprietary interest over the property.

The Supreme Court of Victoria found in favour of the plaintiff, establishing a joint endeavour constructive trust over the property in question. The court ordered that the plaintiff's interest in the property be recognised and protected, ensuring that she would continue to occupy the granny flat rent-free. The claims for proprietary estoppel and unconscionable conduct were dismissed, as the court found that there was no clear and unequivocal promise made by the first defendant that the plaintiff would acquire a proprietary interest over the property.

Orders