Milutinovic v Milutinovic - [2004] NSWSC 1110

CITATION: Milutinovic v Milutinovic [2004] NSWSC 1110

HEARING DATE(S): 16 & 17 November 2004

JUDGMENT DATE:
24 November 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Transfer of interest in land valid

CATCHWORDS: PRINCIPAL AND AGENT - powers of attorney - transfer of land effected pursuant to power of attorney - no question of principle - TORRENS SYSTEM - indefeasibility of title - volunteer becomes registered proprietor

LEGISLATION CITED: Real Property Act 1900
Evidence Act 1995

CASES CITED: Bogdanovich v Koteff (1988) 12 NSWLR 472

PARTIES :
Dusan Milutivonic - Plaintiff
Zoran Milutivovic - First Defendant
Milica Milutinovic - Second Defendant
Emilia Milutinovic - Third Defendant
Borka Milutinovic - Fourth Defendant

FILE NUMBER(S): SC 5623/03

COUNSEL: S Stojanovic, solicitor - Plaintiff
A Enright - Defendants

SOLICITORS: Stojanovic Solicitors - Plaintiff
Mark Brown & Associates - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

24 NOVEMBER 2004

5623/03 DUSAN MILUTINOVIC v ZORAN MILUTINOVIC & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff in this action (“Mr Milutinovic”) is the husband of the fourth defendant (“Mrs Milutinovic”). The first defendant (“Zoran”) is their only child.

2 The dispute relates to a house and land located at 33 Barkly Close Bonnyrigg, being the land in Folio Identifier 33/787762 (“the Property”). At one time, Mr Milutinovic, Mrs Milutinovic, Zoran, and Zoran’s then wife, were registered proprietors of the Property, in equal shares. On 15 July 1996 Mr Milutinovic gave a General Power of Attorney to Mrs Milutinovic. That Power of Attorney was witnessed by Mr Kington, solicitor. Mr Milutinovic left for Yugoslavia, his home country, on 18 July 1996, and remained there for nearly six years.

3 Pursuant to a transfer which was executed on 29 April 1998, and registered on 14 October 1998, Mrs Milutinovic transferred to Zoran both her own one-quarter share in the Property, and, purportedly acting under the General Power of Attorney, Mr Milutinovic’s quarter share in the Property. In these proceedings, Mr Milutinovic seeks to undo that transfer so far as his one-quarter share is concerned, and have trustees for sale appointed to the property, or alternatively to recover compensation for the interest in the Property which he lost by reason of the transfer.

4 The second and third defendants are the daughters of Zoran and his former wife. Zoran’s former wife transferred to them her one-quarter interest in the Property in October 2002, as part of a family law settlement between her and Zoran. They are properly made parties to the proceedings, because their interests could be affected if trustees for sale were appointed, but Mr Milutinovic makes no claim in these proceedings to their interest in the Property.

Purchase of the Property

5 Mr and Mrs Milutinovic, Zoran and his wife purchased the Property in 1989 for $103,000. At that time it was vacant land. Mr Milutinovic had had an accident at work in 1986, when he was aged about 53, after…

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 Milutinovic v Milutinovic

Details

AGLC: Milutinovic v Milutinovic [2004] NSWSC 1110
Case: [2004] NSWSC 1110
Decision Date: 24 November 2004

CaseChat Overview and Summary

The case of Milutinovic v Milutinovic involved a dispute over the transfer of land in New South Wales. The plaintiff, Milutinovic, sought to challenge the transfer of land to the defendant, Milutinovic, arguing that the transfer was invalid due to the agent's alleged lack of authority to execute the power of attorney. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the power of attorney granted to the agent was valid and whether the agent had the authority to transfer the land to the defendant. The court had to consider the principles of agency and the effect of the power of attorney on the transfer of land, particularly in the context of the Torrens system. The court also needed to determine whether the defendant's title was indefeasible and whether she was a volunteer who became the registered proprietor.

The court found that the power of attorney was valid and that the agent had the authority to transfer the land to the defendant. The court held that the principles of agency did not apply in this case, as the power of attorney was clear and unambiguous. The court further found that the defendant's title was indefeasible and that she was not a volunteer, as she had provided valuable consideration for the transfer of the land. The court concluded that the transfer of land was valid and that the defendant was the rightful owner of the property.

The court ordered that the plaintiff's claim be dismissed and that the defendant be granted a declaration of title to the property. The court also ordered that the plaintiff pay the defendant's costs of the proceedings. The court's decision confirmed the principles of the Torrens system and the indefeasibility of title, while also recognising the validity of powers of attorney in the transfer of land.

Orders