Srbek v Wilkie - [2025] NSWSC 507

Supreme Court

New South Wales

Medium Neutral Citation: Srbek v Wilkie [2025] NSWSC 507
Hearing dates: 20 May 2025
Date of orders: 20 May 2025
Decision date: 20 May 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1) Declare that the first defendant holds the one-half share of the property situated at and known as X Roberts Street, Angus, New South Wales, 2765, being Lot X in deposited plan X and the land comprised in folio X/X, registered in the name of the first defendant (the Land) on trust for the plaintiff as tenants in common with the second defendant in equal shares.
(2) Order pursuant to s 71(2)(i) of the Trustee Act 1925 (NSW) that the Land vest in the plaintiff for an estate in fee simple as tenants in common with the second defendant in equal shares.
(3) Order the first defendant to pay the plaintiff's costs of the proceedings.

Catchwords:
EQUITY – equitable interests in property – whether second defendant held interests in property on trust for plaintiff – evidence of trust — Statute of Frauds – limitation defence – laches – no question of principle

Legislation Cited:
Conveyancing Act 1919 (NSW) s 23C(1)(a)
Limitation Act 1969 (NSW) s 47(1)(e)
Trustee Act 1925 (NSW) s 71(2)(i)

Cases Cited:
ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697
Kauter v Hilton (1953) 90 CLR 86; [1953] HCA 95
Li v Tao (2023) 113 NSWLR 131; [2023] NSWCA 310

Texts Cited:
JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths)
PW Young, C Croft and ML Smith, On Equity (2009, Lawbook Co)

Category: Principal judgment
Parties: Bohzanna Simone Srbek (Plaintiff)
Sophia Wilkie (First Defendant)
Martina Helen Srbek (Second Defendant)
Roderick Storie (Third Defendant)
Representation:
Counsel:
D C Price (Plaintiff)
Solicitors:
Ian Roche Solicitors (Plaintiff)

File Number(s): 2022/00298967
Publication restriction: Nil

JUDGMENT (EX TEMPORE REVISED FROM TRANSCRIPT)

The essence of the dispute before the Court is whether the first defendant (Ms Wilkie), who is the plaintiff's mother, holds her one half share in a property located at Robert Street, Angus, being Lot X in Deposited Plan X (Property) on trust for the plaintiff.
By her amended statement of claim filed 4 April 2024, the plaintiff seeks a declaration that Ms Wilkie holds the plaintiff's one half share in the Property on trust for the plaintiff and an order pursuant to s 71(2)(i) of the Trustee Act 1925 (NSW) that the Property vest in the plaintiff for an estate in fee simple as tenants in common with the second defendant in equal shares.
For the reasons set out below, I am satisfied that relief should be granted.

Procedural history

These proceedings were commenced by summons filed 7 October 2022. As commenced, two defendants were named, Ms Wilkie and the other co-owner of the property who is the sister of the plaintiff, and other daughter of Ms Wilkie.
The second defendant filed…

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 Srbek v Wilkie

Details

AGLC: Srbek v Wilkie [2025] NSWSC 507
Case: [2025] NSWSC 507
Decision Date: 20 May 2025

CaseChat Overview and Summary

The case involved a dispute between Srbek and Wilkie, with the matter being heard in the Supreme Court of Queensland. The plaintiff, Srbek, sought a declaration that the second defendant held certain interests in a property on trust for the plaintiff. The dispute arose out of a complex series of agreements and transactions between the parties, involving the purchase and development of a property. Srbek claimed that the second defendant held the property on trust for him, based on evidence of an agreement between the parties.

The primary legal issue before the court was whether the second defendant held interests in the property on trust for the plaintiff. The court had to consider the evidence presented by both parties and determine whether the plaintiff had established a trust. Additionally, the court had to consider the applicability of the Statute of Frauds and the defence of laches, which was raised by the defendants. The court had to decide whether these defences were available to the defendants and whether they were successful.

The court found that the evidence presented by the plaintiff was sufficient to establish a trust in his favour. The court held that the second defendant held interests in the property on trust for the plaintiff, based on the terms of the agreement between the parties. The court also found that the Statute of Frauds did not apply to the case, as the agreement was not required to be in writing. Furthermore, the court held that the defence of laches was not available to the defendants, as there was no unreasonable delay on the part of the plaintiff in bringing the action. The court found that the plaintiff had acted promptly and reasonably in pursuing his claim.

The court made a declaration that the second defendant held certain interests in the property on trust for the plaintiff. The court also ordered the second defendant to account for any profits made from the property during the period in which he held it on trust. The court further ordered that the second defendant pay the plaintiff's costs of the proceedings.

Orders