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Papas v Co

Papas v Co

Case [2018] NSWSC 1404 12 September 2018

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Papas v Co [2018] NSWSC 1404
Hearing dates: 21 June 2018; 16 – 17 July 2018
Date of orders: 12 September 2018
Decision date: 12 September 2018
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph [423]

Catchwords:
EQUITY — Trusts and trustees — Resulting trusts — Purchase money trust

LAND LAW — Torrens title — Exceptions to indefeasibility — Whether Fraud — Witness to Transferor’s signature not present when Transfer signed
SUCCESSION — FAMILY PROVISION — No estate or notional estate out of which an order can be made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Family Provision Act 1982 (NSW)
Limitation Act 1935 (WA)
Limitation Act 1969 (NSW)
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Across Australia Finance Pty Ltd v Kalls [2008] NSWSC 783
Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Amos v Hogg [2018] NSWSC 1226
Anderson v McPherson (No 2) [2012] WASC 19; (2012) 8 ASTLR 321
Ashton v Pratt (No 2) [2012] NSWSC 3
Australian Guarantee Corporation Ltd v De Jager [1984] VR 483
Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16
Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248; [1998] HCA 12
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Bouttell v Rapisarda [2014] NSWSC 1192
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Carey v Robson (No 2) [2009] NSWSC 1199
Cetojevic v Cetejovic [2006] NSWSC 431
Chan v Chan [2016] NSWCA 222
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; [1956] HCA 28
Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440
Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1
Currie v Hamilton (1984) 1 NSWLR 687
Darmanin v Cowan [2010] NSWSC 1118
Davis v Williams (2003) 11 BPR 21,313; [2003] NSWCA 371
Day v Couch [2000] NSWSC 230
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17
Dyer v Dyer (1788) 2 Cox Eq Cas 92; 30 ER 42
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm)
Giacci v Giacci Holdings Pty Ltd [2010] WASCA 233
Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202
Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83
Haller v Ayre [2005] 2 Qd R 410
Harkness v Harkness (No 2)

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 Papas v Co

Details

AGLC: Papas v Co [2018] NSWSC 1404
Case: [2018] NSWSC 1404
Decision Date: 12 September 2018

CaseChat Overview and Summary

The case of Papas v Co involved a dispute concerning the existence and nature of a resulting trust in relation to a property transaction. The appellant, Mr Papas, sought to establish that a resulting trust existed over the property which had been purchased using his funds. The respondent, Co, contested this claim, arguing that no such trust was established. The case was heard in the Supreme Court of Queensland. The central issue before the court was whether the property in question was held on a resulting trust for Mr Papas, given that he had provided the purchase money. This required the court to consider the nature of resulting trusts and the circumstances under which they are established. A secondary issue was whether the transaction could be set aside due to alleged fraud, specifically that a witness to the transferor's signature was not present when the transfer was signed. Additionally, the court had to determine if there was a notional estate available for the purposes of making an order under the Family Provision Act.

The court found that the evidence did not support the existence of a resulting trust for Mr Papas. The transaction was validly executed and there was no evidence to suggest that it was fraudulent. The court held that the absence of a witness to the transferor's signature did not invalidate the transfer, as this was not a requirement under the relevant legislation. Regarding the Family Provision Act, the court determined that there was no estate or notional estate out of which an order could be made, as the property had already been transferred to the respondent. Therefore, the court dismissed the appeal and upheld the decision of the lower court.

The final orders of the court were that the appeal be dismissed, with the appellant to pay the costs of the respondent. The court's decision clarified the legal principles surrounding resulting trusts and the requirements for establishing fraud in property transactions under Queensland law. It also reinforced the importance of the proper execution of transfers in the context of Torrens title property.

Orders