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Saliba v Tarmo

Saliba v Tarmo

Case [2009] NSWSC 581 23 June 2009

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CITATION: Joseph Saliba & Anor v Thomas Tarmo [2009] NSWSC 581

HEARING DATE(S): 06.04.09, 07.04.09

JUDGMENT DATE :
23 June 2009

JUDGMENT 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 41

PARTIES: 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 - defendant

SOLICITORS: Gerard Malouf & Partners - plaintiffs
Thomas Tarmo & Co - defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Nicholas 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.

3 The deceased’s husband died in about 1989. There were no children.
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:

“(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…

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 Saliba v Tarmo

Details

AGLC: Saliba v Tarmo [2009] NSWSC 581
Case: [2009] NSWSC 581
Decision Date: 23 June 2009

CaseChat Overview and Summary

In the case of Saliba v Tarmo, the plaintiffs sought to establish a constructive trust over certain properties based on their provision of services to the deceased, who had represented that the plaintiffs would have a beneficial interest in the estate. The High Court of Australia was tasked with determining whether the plaintiffs and the deceased had shared a common intention regarding the beneficial interest in the estate and whether the plaintiffs had altered their positions to their detriment based on those representations. Additionally, the court had to assess whether the plaintiffs were entitled to equitable estoppel, having acted to their detriment in reliance on the deceased's representations, and whether it would be unconscionable for the deceased's executor to deny that assumption.

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