| 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…
Continue reading Ozaltay v Atilla
Sign in free to access the full text
- AGLC
- Ozaltay v Atilla [2017] VSC 664
- Case
- [2017] VSC 664
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.