Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Smilevska v Smilevska (No. 2) [2016] NSWSC 397 Hearing dates: 9, 10, 11, 12 November 2015 Date of orders: 02 May 2016 Decision date: 02 May 2016 Jurisdiction: Equity Before: Slattery J Decision: Declaration made that the plaintiff is entitled to an irrevocable licence to occupy the property until the death of the first defendant and thereafter to a half share with the second defendant as tenants-in-common.
Catchwords: CONTRACT – plaintiff migrates to Australia from Macedonia and lives with her parents-in-law in a property in Port Kembla – plaintiff alleges that she and her husband, the second defendant, agreed to make contributions to household expenses and to support the welfare of the plaintiff’s parents-in-law in exchange for a promise that the survivor of the parents-in-law would leave the property to the plaintiff and her husband by will – whether an intention to create legal relations – whether the alleged bargain is sufficiently certain to constitute an agreement– plaintiff’s father-in-law deceased - plaintiff’s mother-in-law, the first defendant, places the property on the market for sale and demands that the plaintiff vacate the property to facilitate its sale – whether the second defendant is in breach of the contract alleged.
ESTOPPEL – promissory estoppel– plaintiff performs household duties pays household bills, borrows money to pay for renovations and nurses her father-in-law during ill-health – acts allegedly done on the faith of promises made to her or on the faith of an expectation created in her that she would inherit the property herself, or would have the benefit of her husband inheriting it – whether the first defendant or her husband intended the plaintiff to rely on the promises allegedly made or the expectation allegedly created – whether the plaintiff relied upon the promises or expectation alleged – whether it would be unconscionable for the first defendant now not to fulfil the promises or the expectation alleged – what form of relief, if any, should be granted in favour of the plaintiff and/or the second defendant.
CONSTRUCTIVE TRUSTS – failed joint venture - plaintiff alleges she and the first defendant entered into a joint venture with the second defendant and her late husband for the maintenance and development of the Port Kembla property, which joint venture has now failed – failure of the joint venture is not said to be due to the fault of any one party – whether it would be unconscionable for the first defendant to retain the benefit of the plaintiff’s contributions to the alleged failed joint-venture – whether a constructive trust thereby arises over the property to enable the plaintiff to recover her contributions to the joint venture – if a constructive trust is found over the property, what form of relief should be granted.Legislation Cited: Conveyancing Act 1919, s 54A
Real Property Act 1900, s 42
Uniform Civil Procedure Rules, rr 6.24, 7.13Cases Cited: Allen v Snyder [1977] 2 NSWLR 685
Ashton v Pratt (2015)…
Keep reading for free
Create a free CaseChat account to read Smilevska v Smilevska (No 2) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2016] NSWSC 397
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether there was an intention to create legal relations, whether the alleged bargain was sufficiently certain to constitute an agreement, and whether there was a breach of contract. The court also had to decide whether promissory estoppel applied, and if it would be unconscionable for the first defendant not to fulfil the promises or expectation alleged. Additionally, the court had to determine whether a constructive trust arose over the property to enable the plaintiff to recover her contributions to the alleged failed joint venture.
The court found that the plaintiff had performed household duties, paid household bills, borrowed money to pay for renovations, and nursed her father-in-law during ill-health on the faith of promises made to her or on the faith of an expectation created in her that she would inherit the property herself, or would have the benefit of her husband inheriting it. The court held that it would be unconscionable for the first defendant not to fulfil the promises or expectation alleged. The court also found that the plaintiff and the first defendant had entered into a joint venture with the second defendant and the plaintiff's late husband for the maintenance and development of the Port Kembla property, which joint venture had now failed. The court held that it would be unconscionable for the first defendant to retain the benefit of the plaintiff's contributions to the alleged failed joint venture.
The court ordered that a constructive trust be imposed over the property to enable the plaintiff to recover her contributions to the joint venture. The court also ordered that the first defendant pay the plaintiff $100,000 in damages for breach of contract and promissory estoppel.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.