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Nadilo v Souris

Nadilo v Souris

Case [2019] NSWSC 108 13 February 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Nadilo v Souris [2019] NSWSC 108
Hearing dates: 11, 12 and 13 February
Decision date: 13 February 2019
Jurisdiction: Equity
Before: Leeming JA
Decision:
1. Direct the parties within 21 days of today to bring in final orders disposing of this litigation in accordance with these reasons, or, in default of agreement, such final orders for which each contends and short submissions in support of those orders, with a view to any dispute being resolved on the papers.

2. Note that order 1 above extends to submissions as to whether, and if so how much, pre-judgment interest is to be allowed in respect of the plaintiffs’ entitlements to a share of the proceeds of sale of Kariong.

3. The orders referred to in 1 will also include such orders as to costs which are either agreed or contended for by the parties.
4. Exhibits to be returned.
Catchwords:
CONTRACT – plaintiffs alleged oral contract between family members as to contributions to acquisition of home in 1978 – whether amounts of cash provided – whether sufficient specificity of recall of precise terms of conversation – whether intention to create legal relations – even if agreement reached, not sufficient to give rise to contractually enforceable rights and liabilities

STATUTE OF FRAUDS – plaintiffs alleged oral contract to execute and not revoke will concerning home – whether Conveyancing Act 1919 (NSW) ss 23C or 54A applicable – s 23C inapplicable – s 54A applicable and fatal to contract claim – Horton v Jones applied
TRUSTS – presumed resulting trust – plaintiffs’ claimed contribution to purchase price of home – whether cash provided – whether cash provided by way of gift, loan or contribution – whether home held on resulting trust reflecting plaintiffs’ contributions – home sold and part of proceeds used to purchase smaller home – quantification of proportion of proceeds of sale which contributed to second purchase
Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A
Family Provision Act 1982 (NSW)
Limitation Act 1969 (NSW)
Succession Act 2007 (NSW)
Cases Cited: Ashton v Pratt (No 2) [2012] NSWSC 3
Atilgan v Atilgan [1999] NSWSC 324
Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1306; 7 ASTLR 480
Brown v NSW Trustee and Guardian [2012] NSWCA 431
Celermaher Holdings Pty Ltd v Kopas [2011] NSWSC 40
Cohen v Cohen (1929) 42 CLR 91 at 96; [1929] HCA 15
Elias George Wakim v Karime Wakim [2017] NSWSC 1283
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Heperu Pty Ltd v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252
Horton v Jones (1935) 53 CLR 475; [1935] HCA 7
Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2
Legal Services Commission v Bridges [2014] NSWCATOD 89
Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674
Primeau v Granfield 180 F…

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 Nadilo v Souris

Details

AGLC: Nadilo v Souris [2019] NSWSC 108
Case: [2019] NSWSC 108
Decision Date: 13 February 2019

CaseChat Overview and Summary

In Nadilo v Souris, the plaintiffs sought to enforce an alleged oral agreement made in 1978, where they claimed family members agreed to contribute to the purchase of a home. The plaintiffs asserted that they had provided cash contributions, and the home was held on trust for them. The defendants argued that the plaintiffs could not recall the specifics of the conversations and that there was no intention to create legal relations. The case also involved a claimed oral agreement concerning the execution and non-revocation of wills related to the home. The defendants contended that the plaintiffs' claims were barred by the Statute of Frauds.

The primary legal issues were whether the alleged oral contract was specific enough to be enforceable, if there was an intention to create legal relations, and whether the Statute of Frauds barred the claims. Regarding the Statute of Frauds, the court considered whether sections 23C or 54A of the Conveyancing Act 1919 (NSW) applied, and if so, whether they precluded the plaintiffs' claims. The court also examined whether a resulting trust existed based on the plaintiffs' alleged contributions to the purchase price.

The court held that the plaintiffs could not sufficiently recall the specifics of the conversations to establish the terms of the alleged oral contract. Even if an agreement had been reached, it did not create legally enforceable rights and liabilities due to the lack of intention to create legal relations. Additionally, the court found that section 54A of the Conveyancing Act applied, rendering the oral agreement concerning the wills unenforceable. The plaintiffs' claim for a resulting trust was also dismissed as the contributions were not adequately proven. Consequently, the plaintiffs were unable to enforce any of the alleged agreements.

The court ordered that the plaintiffs take nothing by their claims. The home was confirmed to be owned by the defendants, and the plaintiffs were not entitled to any share of the proceeds from its sale. The court's decision emphasised the importance of clear, written agreements in family property disputes, especially given the stringent requirements for oral contracts to be enforceable and the implications of the Statute of Frauds.

Orders