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Milenkovic v Milenkovic

Milenkovic v Milenkovic

Case [2024] VSC 763 11 December 2024

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2021 01802

MILAN MILENKOVIC (by his litigation guardian NENAD NIKOLIC)	Plaintiff/First Defendant by Counterclaim
v
MILIC MILENKOVIC	First Defendant/Plaintiff by Counterclaim
COOPERS LAWYERS (AUST) PTY LTD (ACN 084 948 907)	Second Defendant/Second Defendant by Counterclaim

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	21–24 May, 27–29 May, 19–20 June, 7–8 and 14-15 August 2024
DATE OF JUDGMENT:	11 December 2024
CASE MAY BE CITED AS:	Milenkovic v Milenkovic
MEDIUM NEUTRAL CITATION:	[2024] VSC 763

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ESTOPPEL – Proprietary estoppel – Constructive trust – Plaintiff promised to bequeath property to first defendant if he undertook significant renovation of property – First defendant relied upon promise to his detriment by working full time on renovation for fifteen months, forgoing income he would otherwise have earned and contributing to the cost of the renovation – Whether unconscionable for plaintiff to depart from promise – Prima facie entitlement of first defendant to receive proceeds of sale of property – Whether receipt of proceeds of sale goes beyond what is required for conscientious conduct – Whether remedy is disproportionate to first defendant’s detriment.

LACHES – Whether first defendant acquiesced to plaintiff having legal and beneficial interest in property to the exclusion of first defendant’s proprietary interest in property – Whether first defendant’s delay in lodging a caveat on title of property unreasonable – Whether plaintiff suffered serious prejudice by reason of first defendant’s delay in claiming a proprietary interest – Plaintiff failed to establish prejudice by reason of first defendant’s delay.

LEGISLATION – Evidence Act 2008 ss 64(2)(b), 64(3)(b), 140(2)(c) – Limitation of Actions Act 1958 s 21(1)(b) – Supreme Court (General Civil Procedure) Rules 2015 order 15.03(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff/First Defendant by Counterclaim	Mr RC Wells (21 May to 26 June), Mr P Reynolds (7 to 15 August 2024)	Kathy Wilson Legal
For the First Defendant/ Plaintiff by Counterclaim	Mr DB Clough	TLM Law
For the Second Defendant/ Second Defendant by Counterclaim	No Appearance

HIS HONOUR:

Introduction

Milan Milenkovic was born on 15 February 1937. He was married to Milunka Milenkovic who died on 27 August 2020. They had two children: Radunka, born 20 November 1957 and Milic, born 31 January 1960. Due to the commonality of surnames I shall refer to the parties by their first names, without any disrespect intended.

Milan and Milunka migrated to Australia from Serbia in January 1971. Throughout the period 1971 to 1984 they purchased a number of properties including 285 Glenlyon Road, Fitzroy North (‘Glenlyon Road’). This property was purchased for $64,000 in February 1984.

Between late April 1993 and July 1994 Glenlyon Road was extensively renovated. It is common ground that Milic, who was a registered builder, obtained the building permits for the renovation and undertook work on the renovation project. The extent of his involvement in the project, including any financial contribution he made to the cost of the project, is hotly…

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 Milenkovic v Milenkovic

Details

AGLC: Milenkovic v Milenkovic [2024] VSC 763
Case: [2024] VSC 763
Decision Date: 11 December 2024

CaseChat Overview and Summary

In the case of Milenkovic v Milenkovic, the dispute arose between the plaintiff, who was the sole legal owner of a property, and the first defendant, who had relied on a promise made by the plaintiff to bequeath the property to him upon certain conditions. The case was heard in the Supreme Court of Victoria. The plaintiff had promised to leave the property to the first defendant if he undertook significant renovations to the property. The first defendant acted on this promise by working full-time on the renovation for fifteen months, foregoing income he would otherwise have earned and contributing to the cost of the renovation. The central issue before the court was whether it would be unconscionable for the plaintiff to renege on the promise and if the first defendant had a prima facie entitlement to receive the proceeds of the sale of the property.

The court considered whether the first defendant's receipt of the proceeds of the sale would exceed what was required for conscientious conduct and whether the remedy would be disproportionate to the first defendant's detriment. The court found that the first defendant's actions in reliance on the promise constituted a significant detriment, and it would be unconscionable for the plaintiff to depart from the promise. The court also found that the first defendant had a prima facie entitlement to receive the proceeds of the sale of the property. However, the court considered whether the remedy of receiving the proceeds of sale went beyond what was required for conscientious conduct and whether it would be disproportionate to the first defendant's detriment.

The court found that the remedy of receiving the proceeds of the sale did not go beyond what was required for conscientious conduct and was not disproportionate to the first defendant's detriment. The court also considered whether the first defendant had acquiesced to the plaintiff having legal and beneficial interest in the property to the exclusion of the first defendant’s proprietary interest. The court found that the first defendant had not acquiesced and that the plaintiff had failed to establish prejudice by reason of the first defendant’s delay in claiming a proprietary interest. The court also considered whether the first defendant's delay in lodging a caveat on the title of the property was unreasonable. The court found that the delay was not unreasonable, and the first defendant's delay in lodging a caveat did not amount to acquiescence.

The court made orders that the plaintiff was to hold the proceeds of sale of the property on trust for the first defendant and that the plaintiff was to transfer the proceeds to the first defendant. The court also made orders that the first defendant was to pay the plaintiff a reasonable contribution towards the costs of the renovation and that the first defendant was to indemnify the plaintiff in respect of any costs or expenses incurred in connection with the proceedings.

Orders