Peter Fedorow v Alan Michael Fedorow - [2012] HCASL 13

PETER FEDOROW
v
ALAN MICHAEL FEDOROW & ORS
[2012] HCASL 13
C5/2011

In June 1972, Michael Fedorow applied to buy from the Commonwealth a government house in O'Connor in the Australian Capital Territory in which he and his wife Anna then lived. At some point in the processes that then followed, it was proposed and agreed that the purchasers of the property would be Michael Fedorow and his third son – the present applicant, Peter Fedorow. In July 1974, Michael and Peter Fedorow executed a Crown lease of the property for 99 years and a mortgage securing payment of the balance of the purchase price after payment of a deposit. The lease was granted to them as joint tenants. From 1985 until the mortgage was discharged in October 1987, Peter Fedorow paid some, perhaps all, of the mortgage payments due.
Michael Fedorow died on 8 July 1995. It has been assumed that he died intestate. In November 1996, the fourth son of Michael Fedorow, Victor Fedorow, lodged a caveat on the title of the property. After that caveat was removed, notice of death was given and Peter Fedorow became sole registered proprietor of the property. Two other sons of Michael Fedorow – Alan and Genady Fedorow – later lodged caveats on the title. Peter Fedorow then brought proceedings in the Supreme Court of the Australian Capital Territory alleging that neither Alan nor Genady Fedorow had any interest in the property. Alan and Genady Fedorow and, later, Victor Fedorow each cross‑claimed, alleging by the time the matter went to trial that the applicant held the property as trustee for himself as to part but as to the balance for the estate of Michael Fedorow.
At first instance, Master Harper held that the applicant held the property as trustee for himself as to half but as to the balance for himself and each of his three brothers (as the next of kin of their father) as tenants in common in equal shares.
The applicant appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory. Before the appeal was determined Genady and Victor Fedorow died. The Court of Appeal (Gray P, Penfold J and Nield AJ) found that the property was held by its purchasers (Michael Fedorow and the applicant) in trust for themselves as tenants in common in the proportions in which they contributed to the purchase price and that the applicant had contributed 82/104 of that purchase price and held that share on his own behalf. As to the 22/104 the applicant held that as a trustee for himself and the respondents in equal shares.
The applicant now seeks special leave to appeal to this Court to allege that he is solely entitled to the property by operation of the doctrine of survivorship to which s 55 of the Land Titles Act 1925 (ACT) gives effect and that the Court of Appeal should have considered whether it had been the common intention of the applicant and…

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: [2012] HCASL 13
Decision Date

CaseChat Overview and Summary

In the case of Peter Fedorow v Alan Michael Fedorow and others, the High Court of Australia was called upon to consider an appeal against a decision made by the Court of Appeal of the Supreme Court of the Australian Capital Territory. The dispute originated from a property purchase agreement in 1972 involving Michael Fedorow and his son, Peter Fedorow, who agreed to purchase a government house in O'Connor. The purchase was executed in 1974, with both parties becoming joint tenants of the property. After Michael Fedorow's death in 1995, his sons, including Peter, Alan, and Genady, engaged in a legal battle over the ownership of the property. The central issue was whether Peter Fedorow held the property solely or if it was to be divided among the brothers according to their father's estate.

The legal issues before the Court involved the interpretation of the Land Titles Act 1925 (ACT) and the doctrine of survivorship. Peter Fedorow argued that he was entitled to the entire property by virtue of the statutory principle of survivorship, while the other sons contended that the property should be divided based on the proportion of the purchase price each brother contributed. The Court of Appeal had ruled that Peter Fedorow held his share outright but was trustee for the remaining portion in equal shares with his brothers.

The High Court found that the appeal did not have sufficient prospects of success to warrant a grant of special leave. The Court of Appeal had correctly applied the principles established in Calverley v Green, and Peter Fedorow had not provided a valid reason for departing from those established principles. Additionally, the failure of some respondents to contest the appeal did not entitle Peter Fedorow to a default judgment in his favour. Therefore, the appeal was dismissed, and no order for costs was made.

Orders