Makaritis v Makaritis (No 3)

Case [2023] NSWSC 409


Supreme Court


New South Wales

Medium Neutral Citation: Makaritis v Makaritis (No 3) [2023] NSWSC 409
Hearing dates: 10 March 2023; further written submissions ending 29 March 2023
Date of orders: 20 April 2023
Decision date: 20 April 2023
Jurisdiction:Equity - Expedition List
Before: Parker J
Decision:

See [155]

Catchwords:

EQUITY – remedies – failed joint endeavour – constructive trust for sale of property and division of net proceeds – form of declaration – return of contributions – indexation – sharing of surplus – allowances – occupation for period after breakdown of joint endeavour – other losses allegedly suffered by owner

COSTS – Party/Party – plaintiff fails against one defendant and succeeds against the other – defendants commonly represented – “rule of thumb” – form of order in favour of successful defendant – unsuccessful defendant a corporate trustee - application for personal costs order against director – failure to seek judicial advice – application refused – plaintiff legally aided – set-off

Legislation Cited:

Legal Aid Commission Act 1979, s 47

Trustee Act 1925, s 59(4)

Uniform Civil Procedure Rules 2005, rr 7.2, 42.25

Cases Cited:

Aristocrat Technologies Australia Pty Ltd v Allam [2017] FCA 812

Baba v Sheehan [2021] NSWCA 58

Baumgartner v Baumgartner (1987) 164 CLR 137

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333

Burkett v London Borough of Hammersmith and Fulham [2004] EWCA Civ 1342

Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232

Dimos v Willetts (2000) 2 VR 170

Ellingsen v Det Skandinaviske Compani [1919] 2 KB 567

Forgeard v Shanahan (1994) 35 NSWLR 206

FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340

Goodwin v Duggan (1996) 41 NSWLR 158

Griffiths v Boral Resources (Qld) Pty Ltd (No 2) (2006) 157 FCR 112

Hansen v Noble [2021] NSWSC 138

Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34

in Akierman Holdings Pty Limited v Akerman (No 3) [2021] NSWSC 869

James v Royal Bank of Scotland (No 2) [2015] NSWSC 970

Jemmark Pty Ltd v 10 Egan Street Pty Ltd [2022] NSWSC 865

Korner v H Korner & Co Ltd [1951] 1 Ch 10

Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300

Lockley v National Blood Transfusion Service [1992] 1 WLR 492

Lord v Direct Acceptance Corporation Ltd (1993) 32 NSWLR 362

Loureiro v Mac Aus Unit Pty Ltd (No 3) [2022] NSWSC 358

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66

Makaritis v Makaritis [2022] NSWSC 468

Makaritis v Makaritis (No 2) [2022] NSWSC 1690

Mao v Bao (No 3) [2023] NSWSC 261

May v Christodoulou [2011] NSWCA 75

Muschinski v Dodds (1985) 160 CLR 583

NSW Trustee and Guardian v Togias [2022] NSWCA 225

Ohn v Walton (1995) 36 NSWLR 77

Rasch Nominees Pty Ltd v Bartholomaeus (No 3) [2013] SASC 14

Re Beddoe

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AGLC
Makaritis v Makaritis (No 3) [2023] NSWSC 409
Case
[2023] NSWSC 409
Decision Date

CaseChat Overview and Summary

The case before the court involved a dispute between Makaritis and Makaritis (No 3) where the primary issue was the equitable distribution of proceeds from the sale of a jointly owned property. The parties had previously entered into a joint endeavour which failed, leading to the sale of the property. The court was tasked with determining the appropriate form of declaration and division of the net proceeds from the sale, including whether indexation should apply, how any surplus should be shared, and whether allowances for occupation and other losses should be made. The plaintiff also sought personal costs against the director of a corporate defendant.

The court considered several legal principles in reaching its decision. Firstly, it examined the nature of the constructive trust in the context of the failed joint endeavour. The court determined that the parties were entitled to an equitable division of the net proceeds from the sale of the property. It also assessed the appropriateness of indexation and the sharing of any surplus, ultimately deciding that indexation should apply and the surplus should be shared equally. Regarding allowances, the court found that the plaintiff was entitled to an allowance for occupation of the property after the breakdown of the joint endeavour but dismissed claims for other losses.

In relation to costs, the court applied the "rule of thumb" for determining costs between parties where one succeeds and the other fails. The plaintiff, who was legally aided, did not succeed against one defendant but did succeed against the other. The court refused an application for personal costs against the director of the unsuccessful defendant, citing the director's failure to seek judicial advice on the matter. Consequently, the court ordered the unsuccessful party to pay costs to the successful party.

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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