Peter Fedorow v Alan Michael Fedorow

[2012] HCASL 13

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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 his father that inequality of contribution to the purchase price should not "lead to a negation of the statutory principle of survivorship". The applicant also seeks to contend that, because the second and third respondents did not appear to contest his appeal, he should have had judgment in the appeal against those respondents by default.

6. The failure of the second and third respondents to contest the appeal to the Court of Appeal did not of itself entitle the applicant to succeed in that appeal[1].

   [1]Court Procedures Rules 2006 (ACT), r 5441(1)(d).

7. The Court of Appeal correctly applied the principles established in Calverley v Green[2].  The points which the applicant would seek to pursue would require departure from those principles and no reason is advanced for taking that step.

   [2](1984) 155 CLR 242; [1984] HCA 81.

8. An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave.

9. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.  No respondent appeared to contest the application.  There should be no order for costs.

K.M. Hayne
9 February 2012 S.M. Crennan