Saravinovski v Saravinovska

Case [2017] NSWCA 85

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Saravinovski v Saravinovska [2017] NSWCA 85
Hearing dates: 15 February 2017; 16 February 2017
Decision date: 04 May 2017
Before: Beazley ACJ at [1];
Leeming JA at [2];
Emmett AJA at [43]
Decision:

In the Mortgage Appeal: The proceedings be dismissed. The appellant is ordered to pay the respondent’s costs of the appeal.

 In the Property Appeal: The proceedings be dismissed. The appellant is ordered to pay the respondent’s costs of the appeal.
Catchwords:

PROPERTY – mortgages – whether valid and enforceable mortgage – whether loans purported to be secured by the mortgage were in fact made – whether intention to create legal relations – whether appellant discharged evidentiary onus

FAMILY LAW – ss 5(2)(a), 20 of the Property (Relationships) Act 1984 (NSW) – whether parties in a ‘domestic relationship’ – whether parties in a ‘close and personal relationship’ – whether respondent provided domestic services for fee or reward – whether primary judge erred in assessment of parties’ financial and non-financial contributions – whether primary judge erred in exercising discretion under s 20 of the Property (Relationships) Act 1984 (NSW)
Legislation Cited: Family Law Act 1975 (Cth)
Property (Relationships) Act 1984 (NSW), ss 5, 20
Succession Act 2006 (NSW), ss 3(3), s 3(4)
Succession Amendment (Family Provision) Act 2008 (NSW)
Cases Cited: Barns v Barns (2003) 214 CLR 169; [2003] HCA 9
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; (2012) 289 ALR 237
Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113; [1932] HCA 1
House v the King (1936) 55 CLR 499; [1936] HCA 40
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd [1975] AC 154; [1974] UKPC 1
Re Filomena Rodi, decd [2016] NSWSC 1696
Sarkis v Morrison [2013] NSWCA 281
Skarica v Toska [2014] NSWSC 34
South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Ltd (1977) 139 CLR 449; [1977] HCA 38
Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797
White v O’Neill [2010] NSWSC 1193
Ye v Fung [2006] NSWSC 243
Category:Principal judgment
Parties:

Chris (Krste) Saravinovski (by his tutor Louie Saravinovski) (Appellant in 2016/239390)
Maria Saravinovska (As Executrix of the Estate of the Late George Saravinovski) (Respondent in 2016/239390)

  Krste (Chris) Saravinovski (by his tutor Louie Saravinovski) (Appellant in 2016/233724)
Maria (Maria) Saravinovska (Respondent in 2016/233724)
Representation:

Counsel:
D R Pritchard SC with J Rose (Appellant in 2016/233724)
D R Pritchard SC with A J Macauley (Appellant in 2016/239390)
G A Sirtes SC…

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AGLC
Saravinovski v Saravinovska [2017] NSWCA 85
Case
[2017] NSWCA 85
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between a former couple, Mr. Saravinovski (the appellant) and Ms. Saravinovska (the respondent), regarding the enforceability of a mortgage and the division of property. The appellant sought to enforce a mortgage over property owned by the respondent, alleging it secured certain loans. The respondent contested the validity and enforceability of the mortgage, and also challenged the primary judge's assessment of financial and non-financial contributions and the exercise of discretion under the Property (Relationships) Act 1984 (NSW). The matter was heard by Beazley ACJ, Leeming JA, and Emmett AJA.

The legal issues before the court included whether the loans purportedly secured by the mortgage were actually made, whether there was an intention to create legal relations in respect of those loans, and whether the appellant had discharged the evidentiary onus to establish the validity and enforceability of the mortgage. In relation to the family law aspects, the court considered whether the parties were in a "domestic relationship" or a "close and personal relationship" for the purposes of the Property (Relationships) Act 1984 (NSW), whether the respondent provided domestic services for a fee or reward, and whether the primary judge had erred in assessing the parties' financial and non-financial contributions and in exercising discretion under section 20 of that Act.

The court dismissed the appeal in both the Mortgage Appeal and the Property Appeal. The reasoning, though not detailed in the provided text, would have involved a determination on the evidence regarding the existence and nature of the alleged loans and the intention to create legal relations. In the family law appeal, the court would have reviewed the primary judge's findings on the nature of the relationship and the contributions made by each party, and whether the discretion exercised under section 20 of the Property (Relationships) Act 1984 (NSW) was sound.

Consequently, the court ordered that the proceedings in both appeals be dismissed, with the appellant being ordered to pay the respondent’s costs of each appeal.

Orders

Orders of the court

In the Mortgage Appeal: The proceedings be dismissed. The appellant is ordered to pay the respondent’s costs of the appeal.

In the Property Appeal: The proceedings be dismissed. The appellant is ordered to pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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