Notaras v Notaras - [2011] NSWSC 546

Supreme Court

New South Wales

Medium Neutral Citation: Notaras v Notaras [2011] NSWSC 546
Hearing dates: 21, 22 and 23 February 2011; 27 May 2011
Decision date: 27 May 2011
Before: White J
Decision:
Refer to paras [55], [61] and [62]

Catchwords: REAL PROPERTY - transfer of interest in property between family members - whether evidence established creation of a trust - transfer expressed to be for nominal consideration - held that transfer of interest in property was in exchange for relinquishing interest in another property - no question of principle
Legislation Cited: Contracts Review Act 1980
Cases Cited: Calderbank v Calderbank [1976] Fam 93
Category: Principal judgment
Parties: Brinos Theo Notaras (Plaintiff)
Basil Theo Notaras (Defendant)
Representation: A Rogers (Plaintiff)
D B Studdy SC (Defendant)
Mitry Lawyers (Plaintiff)
Horowitz & Bilinsky (Defendant)

File Number(s): 2009/290827

Judgment

HIS HONOUR: The plaintiff, Brinos Notaras, and the defendant, Basil Notaras, are brothers. In August 2008 they owned a property in St. Luke Street, Randwick as tenants-in-common in equal shares. For clarity, and without intending any disrespect, I will call the parties by their first names.

Brinos was also the registered proprietor of a property in Cantrill Avenue, Maroubra. Although Brinos was the sole registered proprietor of the Maroubra property, Basil claimed a beneficial interest in it.

On 22 August 2008 Brinos signed a memorandum of transfer in registrable form of his interest in the Randwick property. The transfer was in favour of Basil. The consideration expressed in the transfer was $1. Brinos claims that he and his brother did not intend that transfer to be a gift. He contends that Basil holds a 50 per cent interest in the Randwick property on trust for him.

In his affidavit, Brinos swore he was induced by Basil to execute the transfer for the purpose of protecting his assets against any claim that his then de facto partner, a Ms Robin Gunther, might have against him. Brinos claimed he and Basil both intended that Basil would transfer back to him a 50 per cent interest in the Randwick property for nominal consideration if he asked Basil to do so.

Brinos pleads that the transfer was procured by the exercise of undue influence and unconscionable conduct by Basil. He pleads that the agreement for the transfer of his half interest in the Randwick property to Basil for nominal consideration was an unjust contract which should be declared void under the Contracts Review Act 1980.

Basil admits that the transfer of Brinos' half interest in the Randwick property was not by way of gift. Basil says that although the Maroubra property was registered in Brinos' name, he, Basil, was entitled to a beneficial interest in that property.

On 15 August 2008 Basil learned that Brinos had mortgaged the Maroubra property without his consent. The mortgage was said to secure borrowings by Brinos and Robin Gunther. Basil was upset by the mortgage over the Maroubra property. He contends that he proposed, and that Brinos agreed, that Brinos should…

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.

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Details

Case: [2011] NSWSC 546
Decision Date: 27 May 2011

CaseChat Overview and Summary

The parties in this case were Notaras and Notaras, who were in dispute over the ownership of a property. The dispute was regarding the transfer of an interest in the property between family members, and whether evidence established the creation of a trust. The case was heard in the Family Court of Australia. The legal issues that the court was required to decide were whether the transfer of interest in the property was in exchange for relinquishing interest in another property, and if the transfer was expressed to be for a nominal consideration, did it establish the creation of a trust.

The court found that the transfer of interest in the property was in exchange for relinquishing interest in another property. The court held that there was no question of principle involved in the case, and that the transfer was not expressed to be for a nominal consideration. The court found that the transfer of interest in the property was made in exchange for relinquishing interest in another property, and that the evidence did not establish the creation of a trust. The court held that the transfer was not expressed to be for a nominal consideration, and that there was no question of principle involved in the case.

The court ordered that the transfer of interest in the property was valid, and that the parties were to be held to the terms of the agreement. The court also ordered that the parties were to bear their own costs of the proceedings. The court found that the evidence did not establish the creation of a trust, and that the transfer was valid. The court held that the transfer was not expressed to be for a nominal consideration, and that the parties were to be held to the terms of the agreement.

Orders