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Saravinovska v Saravinovski (No 6)

Saravinovska v Saravinovski (No 6)

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Case Copied 12 July 2016 74 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964
Hearing dates: 10/9/14, 17/9/14, 14-17/10/14, 20-24/10/14, 28-31/10/14, 3-7/11/14, 10-13/2/15, 16-20/2/15, 16-19/3/15, 27/3/15, 2/4/15, 5/6/15
Decision date: 12 July 2016
Jurisdiction: Equity
Before: Kunc J
Decision:
Adjustment of interests in favour of Maria; all other claims dismissed

Catchwords: ESTOPPEL – Whether representations made – No issue of principle
EVIDENCE – Affidavit evidence – Further application to use parts of affidavits excluded due to deponent’s lack of mental capacity – Evidence said to be corroborated by other evidence already admitted – UCPR Pt 35, r 35.2(3)
EVIDENCE – General matters – Inferences – Jones v Dunkel inference drawn for failure to call solicitor in relation to matters where client legal privilege had been waived
EVIDENCE – Inspection – Late application to have access to videotape for expert to examine authenticity – Evidence Act 1995, s 169 – UCPR Pt 23r 23.8
FAMILY LAW – Adjustment of property interests – Whether a close personal relationship between father-in-law and daughter-in-law – Where domestic support provided to whole multi-generational family including defendant – Whether domestic support and personal care provided “for fee or reward” – How property interests to be adjusted where a close personal relationship rather than de facto relationship – Property (Relationships) Act 1984, ss 5, 14, 20
MORTGAGES – General principles – Mortgage of no force or effect where mortgagee fails to prove recited advance actually made – No collateral or other agreement proven to give mortgage effect
PRACTICE – Pleadings – Amendment at close of lengthy hearing to conform pleading to evidence given in witness box – No issue of principle – Civil Procedure Act 2005, s 64
Legislation Cited: Evidence Act 1995 (NSW)
Civil Procedure Act 2005 (NSW)
Property (Relationships) Act 1984 (NSW)
Property (Relationships) Legislation Amendment Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ashton v Pratt [2015] NSWCA 12
Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044
Baumgartner v Baumgartner (1987) 164 CLR 137
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Bilous v Mudaliar [2006] NSWCA 38
Burgess v Moss [2010] NSWCA 139; (2010) 43 Fam LR 260
Commissioner of Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd [1977] HCA 38; (1977) 139 CLR 449
Cooper v Hobbs [2013] NSWCA 70
Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1
Dridi v Fillmore [2001] NSWSC 319
Evans v Marmont (1997) 42 NSWLR 70
Fulton v Fulton [2014] NSWSC 619
Grech v Walsh [2007] NSWSC 302
Hayes v Marquis [2008] NSWCA 10
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kardos v Sarbutt [2006] NSWCA 11
Klein v Law Society of NSW (Court of Appeal NSW), 4 September 1987, unreported
Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361
Legione v Hateley [1983] HCA 11;

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: [2016] NSWSC 964
Decision Date: 12 July 2016

CaseChat Overview and Summary

The matter before the court involved a dispute between a mother-in-law and a daughter-in-law regarding property interests, domestic support, and the validity of a mortgage. The case was heard in the Federal Circuit Court of Australia. The central issue was whether the daughter-in-law, who had provided domestic support to the broader family, was entitled to a share in the property owned by the mother-in-law, and whether the support provided was "for fee or reward" under the Property (Relationships) Act 1984. Another issue was the validity of a mortgage given by the daughter-in-law to the mother-in-law, which was challenged on the grounds that the recited advance had not been proven.

The court addressed several evidentiary issues, including the use of affidavit evidence despite the deponents' lack of mental capacity, and a late application for an expert to examine a videotape for authenticity. It also considered the failure to call a solicitor in relation to waived client legal privilege matters, drawing an inference under Jones v Dunkel. The court found that the representations made by the parties regarding their close personal relationship were not in dispute and that the daughter-in-law's support was not provided "for fee or reward." The mortgage was held to be of no force or effect due to the failure to prove the recited advance.

The court concluded that the property interests should be adjusted in light of the close personal relationship, rather than a de facto relationship, and ordered a redistribution of the property interests accordingly. The late application to inspect the videotape was denied, and the failure to call the solicitor resulted in an adverse inference. The pleadings were amended to conform to the evidence given, and no further orders were required.

Orders