Ozaltay v Atilla - [2017] VSC 664

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2013 03714

BOURHAN OZALTAY and SAFAK OZALTAY	Plaintiffs
v
SELEN ATILLA	First Defendant
-and-
SIBEL COFFEY (also known as Sibel Mustafa)	Second Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 13, 14 December 2016, 31 January, 1 February 2017
DATE OF JUDGMENT:	1 November 2017
CASE MAY BE CITED AS:	Ozaltay & Anor v Atilla & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 664

---

TRUSTS — Where plaintiffs claimed repayment of loan from defendants — Where loan claim abandoned and plaintiffs alleged constructive trust against defendants — Where at trial plaintiffs sought to claim in the alternative a resulting trust — Claim dismissed — No point of principle.

LOAN — Where plaintiffs claim repayment of loan to defendant —Defendant alleges a gift or payment for services — Where plaintiffs claim dismissed — No point of principle.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D W Laidlaw CSC	Bowlen Dunstan & Associates
For the First Defendant	Mr N P Jones	Portfolio Law
For the Second Defendant	In person	Adams Maguire Sier

HER HONOUR:

Introduction
The plaintiffs’ constructive trust claim

This proceeding primarily concerns the ownership of a property known as 20 Woolnough Drive, Mill Park, in the State of Victoria (’20 Woolnough Drive’ or ‘the property’), registered in the names of the defendants, who are the plaintiffs’ adult children. The plaintiffs live in the property. They seek that the defendants transfer the property to them on the basis of a common intention constructive trust. At trial, they made an oral application to add a new alternative claim alleging a resulting trust in their favour.

The second defendant gave evidence in support of the plaintiffs’ claim. She did not resist the constructive trust claim or the transfer of her share of the property to the plaintiffs. The first plaintiff, Mr Ozaltay, disclosed for the first time in his oral evidence that the second defendant had signed a transfer of land. It is dated 23 July 2014 with the expressed consideration being ‘entitled in equity’. The transfer had not been discovered by the plaintiffs or the second defendant prior to the commencement of the trial and has not been lodged with the Land Titles Office.

The first defendant opposed the plaintiffs’ claims made against her and denied that her interest in 20 Woolnough Drive should be transferred to the plaintiffs.

The Cyprus payment

The plaintiffs made a second claim against the first defendant seeking payment of the sum of £10 000. The plaintiffs contend, and the first defendant denies, they loaned £10 000 to the first defendant in May 2011 when they were in Cyprus, which loan was repayable on demand by them (‘the Cyprus payment’).

Conclusions on the two claims

The determination of the two claims is that both claims are dismissed.

Procedural history of the property claim
Plaintiffs’ initial claim

Prior to the commencement of the…

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 Ozaltay v Atilla

Details

AGLC: Ozaltay v Atilla [2017] VSC 664
Case: [2017] VSC 664
Decision Date: 1 November 2017

CaseChat Overview and Summary

The dispute in Ozaltay v Atilla involved claims for the repayment of a loan made by the plaintiffs to the defendants. The plaintiffs subsequently abandoned the repayment claim and sought to establish a constructive trust against the defendants on the basis that the money was held by the defendants for the benefit of the plaintiffs. At trial, the plaintiffs also sought to establish a resulting trust in their favour. The defendants opposed the claims and argued that the money was either a gift or payment for services. The court was required to determine whether a constructive trust or a resulting trust was established in favour of the plaintiffs.
The court held that the plaintiffs' claims were dismissed and that there was no point of principle in the proceedings. The court found that the plaintiffs had failed to establish the necessary elements for a constructive trust, including that the defendants had an unconscionable advantage or acted inequitably. The court also found that the plaintiffs had failed to establish the necessary elements for a resulting trust, including that the plaintiffs had an intention to retain beneficial ownership of the money. The court held that there was no evidence to support the plaintiffs' claims and that the defendants' arguments that the money was a gift or payment for services were more plausible. The court dismissed the plaintiffs' claims and found no point of principle in the proceedings.

Orders