Makaritis v Makaritis (No 3)

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.