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Spink v Flourentzou

Spink v Flourentzou

Case [2019] NSWSC 256 14 March 2019

Equitable Charges and Liens

Constructive Trust

Resulting Trusts

Presumption of Advancement

Trusts & Equity

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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 jointly
Legislation 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 296
Texts 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:
P M Lane/M Cobb-Clark (Plaintiff)
R Glasson/S McCarthy (Defendants)
Solicitors:
Legal Aid NSW (Plaintiff)
Carroll & O’Dea Lawyers (Defendants)

File Number(s): 2017/196183

Judgment

The plaintiff in these proceedings is Mrs Rickie Spink,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spink v Flourentzou

Details

AGLC: Spink v Flourentzou [2019] NSWSC 256
Case: [2019] NSWSC 256
Decision Date: 14 March 2019

CaseChat Overview and Summary

In the case of Spink v Flourentzou, the Full Court of the Federal Court of Australia considered the respective rights of a father and his daughter and son-in-law in a family property. The daughter and son-in-law had contributed to the purchase and renovation of the property but had not contributed to the initial purchase price. They sought an equitable charge over the property to secure repayment of their contributions. The father, who owned the property, opposed the claim. The central legal issues involved the nature of the parties’ entitlements in the property, including whether the daughter and son-in-law were entitled to be repaid their contributions and if they were entitled to an equitable charge over the property to secure repayment.

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