Smilevska v Smilevska (No 2)

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, 7.13

Cases Cited:

Allen v Snyder [1977] 2 NSWLR 685
Ashton v Pratt (2015)…