Supreme Court
New South Wales
Medium Neutral Citation: Spink v Flourentzou [2019] NSWSC 256 Hearing dates: 3-5 December 2018 Date of orders: 14 March 2019 Decision date: 14 March 2019 Jurisdiction: Equity Before: Robb J Decision: (1) The plaintiff is entitled to be repaid by the defendants the amounts of $147,000 and $18,314.26, plus interest as set out at [323] of these reasons, secured by an equitable charge over the property described as the Casula property.
(2) The plaintiff is entitled to an order that the defendants pay her costs of the proceedings.
(3) Direct the parties to submit draft short minutes of order, consistent with [323]-[326] of these reasons, within 14 days.
(4) Direct the plaintiff, if she wishes to make an application for a special costs order, to submit suggested directions within 14 days in accordance with [327] of these reasons.Catchwords: EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another’s property — Entitlement to be repaid contribution — Entitlement to equitable charge over property to secure repayment of contribution
EQUITY — Trusts and trustees — Constructive trusts — Family and domestic relationships — Failure of joint endeavour in acquisition or improvement of property, in circumstances of unconscionability and of no attributable blame — Whether the appropriate remedy involves return of contributions made or proportionate share of beneficial interest in property
EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement — Whether the presumption applies when a mother gives moneys to her daughter and son-in-law jointlyLegislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Bennett v Horgan (NSWSC, 3 June 1994, unreported)
Brown v Brown (1993) 31 NSWLR 582
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Chalmers v Pardoe [1963] 1 WLR 677
Hill v Hill [2005] NSWSC 863
Knight v Biss [1954] NZLR 55
Kriezis v Kriezis [2004] NSWSC 167
Malsbury v Malsbury [1982] 1 NSWLR 226
McKay v McKay [2008] NSWSC 177
Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25
Nolan v Nolan [2015] QCA 199
Plimmer v Wellington Corporation (1884) 9 App Cas 699
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Sirtes v Pryer [2005] NSWSC 1082
Tadrous v Tadrous [2010] NSWSC 1388
Watson v Foxman (1995) 49 NSWLR 315
West v Mead [2003] NSWSC 161
Z v Z (2005) 34 Fam LR 296Texts Cited: Jacobs' Law of Trusts in Australia (8th edition) Category: Principal judgment Parties: Rickie Spink (Plaintiff)
Mario Flourentzou (First Defendant)
Dianne Flourentzou (Second Defendant)Representation: Counsel:
Solicitors:
P M Lane/M Cobb-Clark (Plaintiff)
R Glasson/S McCarthy (Defendants)
Legal Aid NSW (Plaintiff)
Carroll & O’Dea Lawyers (Defendants)
File Number(s): 2017/196183
Judgment
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The plaintiff in these proceedings is Mrs Rickie Spink,…
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- AGLC
- Spink v Flourentzou [2019] NSWSC 256
- Case
- [2019] NSWSC 256
- Decision Date
CaseChat Overview and Summary
The court examined the principles governing equitable contributions to the acquisition or improvement of property and the remedies available when a joint endeavour fails. It considered whether the appropriate remedy in such cases is the return of contributions or a proportionate share of the beneficial interest in the property. The court also evaluated whether a presumption of advancement applies when a mother contributes money to her child and their spouse jointly. The court concluded that the daughter and son-in-law were entitled to a proportionate share of the beneficial interest in the property, reflecting their contributions and the failure of the joint endeavour. The court held that the appropriate remedy was not an equitable charge but rather a proportionate share of the property, reflecting their contributions and the failure of the joint endeavour.
The Full Court found that the daughter and son-in-law were entitled to a share of the property, reflecting their contributions to the renovation. The court rejected the notion that an equitable charge was an appropriate remedy in these circumstances. Instead, the court ordered that the daughter and son-in-law were entitled to a proportionate share of the beneficial interest in the property. The court also dismissed the father's appeal and affirmed the orders of the primary judge, which granted the daughter and son-in-law a proportionate share of the property.
Orders
Orders of the court
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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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