Siemianowski v Sellers

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Siemianowski v Sellers [2009] NSWCA 245

FILE NUMBER(S):
40276/08 

HEARING DATE(S):
3 August 2009

JUDGMENT DATE:
3 August 2009

EX TEMPORE DATE:
3 August 2009

PARTIES:
Michael SIEMIANOWSKI  (appellant)
Paul Charles SELLERS  (respondent)

JUDGMENT OF:
Hodgson JA Ipp JA Handley AJA   

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC 4477/07

LOWER COURT JUDICIAL OFFICER:
Barrett J

LOWER COURT DATE OF DECISION:
4 June 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Sellers v Siemianowski [2008] NSWSC 538

COUNSEL:
J SLEIGHT  (appellant)
D J RUSSELL, SC/ J V GOOLEY  (respondent)

SOLICITORS:
Clinch Long Letherbarrow Pty Ltd  (appellant)
Thomas and Company  (respondent)

CATCHWORDS:
EQUITY – Resulting trust – Presumption of advancement – Contract for purchase of property in son’s name – Father pays deposit and stamp duty – Agreement that transfer be to father and son as joint tenants – Whether father intended to make gifts – Whether father’s interest held on trust for son. 

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
1. Appeal dismissed with costs.
2. No order made altering the usual basis for assessment of costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40276/08
SC 4477/07

HODGSON JA
IPP JA
HANDLEY AJA

3 AUGUST 2009

Michael SIEMIANOWSKI v Paul Charles SELLERS

Judgment

1. HODGSON JA:  The appellant, who I will call “the father”, is the father of the respondent, who I will call “the son”. 

2. In 2001, they became registered proprietors as joint tenants of the property 3 King Street, Randwick.  The son brought proceedings in the Equity Division seeking a declaration that he was the sole beneficial owner of the property, and an order that the father transfer his interest in the property to him.  The father put on a cross-claim seeking orders for the sale of the property and division of the proceeds. 

3. On 4 June 2008, Barrett J made the orders sought by the son, dismissed the father’s cross-claim, and ordered the father to pay the son’s costs of the proceedings. 

4. The father appeals from those orders.  For reasons I will give, in my opinion this appeal should be dismissed.

5. I will start with an account of facts that are either not in dispute or clearly established. 

6. In early 2001, at a time when the son was living with the father, the son became engaged to Nicole Mackie. 

7. Between about February and April 2001, the son and the father inspected a substantial number of houses in the Eastern Suburbs of Sydney. 

8. On 11 April 2001, the son and the father, together with Nicole and perhaps others, inspected the property 3 King Street, Randwick.  They were told the asking price was $595,000, and they obtained a copy of the contract. 

9. The son and perhaps also the father took the contract to the office of Philip King, solicitor, and handed it to a secretary, and an instruction to act sheet was filled out.  There is in evidence a document…