CITATION: Joseph Saliba & Anor v Thomas Tarmo [2009] NSWSC 581 HEARING DATE(S): 06.04.09, 07.04.09
JUDGMENT DATE :
23 June 2009JUDGMENT OF: Nicholas J DECISION: Par 56 CATCHWORDS: EQUITY - constructive trust - services provided on representations of beneficial interest in deceased's estate - whether parties shared necessary common intention - whether plaintiffs changed positions to their detriment - general principles considered - ESTOPPEL - equitable estoppel - whether plaintiffs acted to their detriment on reliance of deceased's representations - whether unconscionable for deceased's executor to deny that assumption CATEGORY: Principal judgment CASES CITED: Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Gillett v Holt [2001] Ch 210
Grant v Edwards [1986] Ch 638
Green v Green (1989) 17 NSWLR 343
Jennings v Rice [2003] 1 P&CR 8
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133
Vukic v Luca Grbin & Ors: Estate of Zvonko Grbin [2006] NSWSC 41PARTIES: Joseph Saliba – first plaintiff
Mona Saliba – second plaintiff
Thomas Tarmo - defendant
FILE NUMBER(S): SC 4351/07 COUNSEL: I M Khan/C Wilson - plaintiffs
D Liebhold - defendantSOLICITORS: Gerard Malouf & Partners - plaintiffs
Thomas Tarmo & Co - defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONNicholas J
23 June 2009
4351/07 Joseph Saliba & Anor v Thomas Tarmo
JUDGMENT
1 His Honour : These proceedings concern the estate of the late Maria Stelmach (the deceased) who died on 3 February 2007, aged 83 years. She left a will dated 20 October 2005 by which she appointed the defendant sole executor. Probate was granted on 5 April 2007.
2 The plaintiffs claim that the defendant holds one half of the deceased’s estate under a constructive trust, alternatively by way of estoppel arising from their detrimental reliance on representations made to them by the deceased to the effect that upon her death they would inherit a one half interest in her estate. For convenience, where appropriate, I shall refer to the plaintiffs by their first names.
4 On 9 November 2001 the deceased made a will in the office of her solicitor. The plaintiffs and their son, Michael, accompanied her on that occasion when, in their presence, the deceased instructed the solicitor on the terms of her will. The will she made that day appointed Michael executor and trustee. She directed her property be converted into money, and left the net proceeds of her estate as follows:3 The deceased’s husband died in about 1989. There were no children.
“(a) As to one-half (1/2) for MARIA MAHAR absolutely but if she should predecease me then for such of her children MELISSA MAHAR , EMILY MAHAR , CHRISTOPHER MAHER and LAUREN MAHAR as survive me and if more than one in equal shares absolutely.
(b) As to one-half (1/2) for such of JOSEPH SALIBA and MONA SALIBA as survive me and if more than one in equal…
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- AGLC
- Saliba v Tarmo [2009] NSWSC 581
- Case
- [2009] NSWSC 581
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the existence of a shared common intention leading to the creation of a constructive trust, as well as the applicability of equitable estoppel. The court examined whether the plaintiffs had provided services in reliance on the deceased's representations of a beneficial interest, and if those representations induced a change in position to their detriment. The court also considered whether the deceased's executor would be estopped from denying the assumed interest due to the plaintiffs' detrimental reliance on the representations.
The court found that the deceased's representations did not create a shared common intention sufficient to establish a constructive trust, as there was no clear and unequivocal agreement regarding the beneficial interest. However, the court did find that the plaintiffs had acted to their detriment based on the deceased's representations, and it would be unconscionable for the deceased's executor to deny the assumed interest. Therefore, the court ordered that a constructive trust be imposed over the properties in question, reflecting the plaintiffs' equitable estoppel claim.
The final orders of the court mandated that a constructive trust be imposed over the properties in question in favour of the plaintiffs, reflecting their equitable estoppel claim. This decision ensured that the plaintiffs were compensated for their detrimental reliance on the deceased's representations.
Orders
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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