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
Category: Principal judgment Parties: Bill Makaritis (Plaintiff)
Luke William Makaritis (First Defendant)
Hellenic Property Holdings Pty Limited (Second Defendant)Representation: Counsel:
Solicitors:
B Zipser (Plaintiff)
M Condon SC (Defendants)
Cogent Lawyers (Plaintiff)
File Number(s): 2020/221695 Publication restriction: Nil
Judgment
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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.
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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.
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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.
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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”).
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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…
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- AGLC
- Makaritis v Makaritis (No 2) [2022] NSWSC 1690
- Case
- [2022] NSWSC 1690
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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