Pavlis, George v Pavlis, Emanuel

[2022] NSWCA 281

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Pavlis, George v Pavlis, Emanuel [2022] NSWCA 281

Hearing dates:

19 May 2022

Decision date:

21 December 2022

Before:

Macfarlan JA at [1];
White JA at [2];
Basten AJA at [47]

Decision:

(1) Order that the second respondent be appointed as representative of the estate of the first respondent for the purposes of the appeal.

(2) Appeal dismissed with costs.

Catchwords:

EQUITY – Unconscionable conduct – existence of a joint endeavour to pool resources and undertake work for mutual benefit – motivation for contributions – absence of proof that it was not intended for the respondents to hold full beneficial ownership if the relationship failed – no finding that it would be unconscionable to deny the existence of the equitable interest

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 7.10

Cases Cited:

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78

West v Mead [2003] NSWSC 161

Category:

Principal judgment

Parties:

George Pavlis (First Appellant)
Chris Pavlis (Second Appellant)
Emmanuel Pavlis (First Respondent)
Koula Pavlis (Second Respondent)

Representation:

Counsel:
B W Walker SC with N Kirby (Appellants)
G R Waugh SC with K Hooper (Respondents)

Solicitors:
Fortis Law (Appellants)
Russell Kennedy Lawyers (Respondents)

File Number(s):

2021/278620

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2021] NSWSC 1117

Date of Decision:

2 September 2021

Before:

Kunc J

File Number(s):

2018/289479

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondents, Mr Emmanuel Pavlis and Mrs Koula Pavlis (referred to as Mr and Mrs Pavlis), bought a property in late 1986. Two of their sons, Mr George Pavlis and Mr Chris Pavlis (referred to as George and Chris), brought proceedings in the Equity Division against their parents, claiming a beneficial interest in the property. George and Chris claimed they made substantial contributions in time, labour and money to the renovation and restoration of the property.

Mr Pavlis died shortly before the hearing of the appeal. Mr and Mrs Pavlis held their title to the property as joint tenants. Mrs Pavlis and Mr Garry Pavlis (the third son of Mr and Mrs Pavlis) were named as Mr Emmanuel Pavlis’ executors.

The primary judge rejected George and Chris’ claim.

The issues before this court were:

(1) whether the primary judge erred in failing to find that the parties were engaged in a joint endeavour to pool their resources and undertake work on the property for mutual benefit,

(2) whether the primary judge erred in finding that the plaintiffs’ motivation for making contributions was, in large measure, for their own commercial benefit,

(3) whether George and Chris established that it was not intended that their parents should enjoy full beneficial ownership of the property if the relationship failed, and

(4) whether a refusal to recognise the existence of an equitable interest in the property amounts to unconscionable conduct.