Stassinopoulos v Stassinopoulos - [2011] VSC 647

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IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. 8192 of 2009

IRENE STASSINOPOULOS	First Plaintiff
And
VICKY STASSINOPOULOS, in her capacity as Executor and Trustee of the Estate of NICHOLAS STASSINOPOULOS (Deceased)	Second Plaintiff
And
SOTIRIOS STASSINOPOULOS	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	Melbourne
DATE OF HEARING:	7–8, 12 December 2011
DATE OF JUDGMENT:	12 December 2011
CASE MAY BE CITED AS:	Stassinopoulos & anor v Stassinopoulos
MEDIUM NEUTRAL CITATION:	[2011] VSC 647

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REAL PROPERTY – Deceased and First Defendant registered as joint proprietors of real property under Transfer of Land Act1958 – Claim in equity that the Deceased and First Defendant presumed to hold their interests as beneficial tenants in common in equal shares notwithstanding the registration – Claim in the alternative under s 24(2) of the Partnership Act 1958 that the Deceased and First Defendant held their interests as tenants in common in equal shares notwithstanding the registration.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Kendall QC with Mr A Panna SC	mdp McDonald Partners
For the Defendant	Dr I J Hardingham QC with Mr SP Newton	Juliano, Furletti & Scott

HIS HONOUR:

The Issue

Early in 1977 Nicholas Stassinopoulos (“Nick Stassinopoulos”) and his younger brother Sotirios Stassinopoulos (“Sam Stassinopoulos”) purchased a property situated at 199 Brunswick Street Fitzroy (the “Brunswick Street Property”). Subsequently, on 15 April 1977, they became registered under the Transfer of Land Act 1958 as joint proprietors of the property and were recorded as such on the title being Certificate of Title Volume 8129 Folio 291 pursuant to a transfer of land dated 31 March 1977.

The two brothers were registered as joint proprietors of the Brunswick Street Property because the transfer which they signed contained no words of severance, even though it was silent as to the fact of joint tenancy. This arose by virtue of s 33(4) of the Transfer of Land Act 1958 which provides:

(4)Any two or more persons named in any instrument as transferees mortgagees lessees or as taking any estate or interest in land shall unless the contrary is expressed be deemed to be entitled jointly and not in shares and every such instrument when registered shall take effect accordingly.

The brothers purchased the Brunswick Street Property with a view to conducting a fish and chip and hamburger business from a shop situated on the ground floor, and renting out the residential accommodation upstairs.

The central issue in this case is whether, in all the circumstances, Nick Stassinopoulos and his brother Sam Stassinopoulos held their interests in the Brunswick Street Property as beneficial tenants in common in equal shares in equity notwithstanding the registration. Alternatively, whether, pursuant to s. 24(2) of the Partnership Act 1958 the brothers held their interests as tenants in common in equal shares notwithstanding the registration.

Background

Nick Stassinopoulos migrated from Greece to Australia in the early 1960’s together with his brother, Sam Stassinopoulos and their sister, Angeliki Stassinopoulos (“Angeliki Stassinopoulos”).

At…

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 Stassinopoulos v Stassinopoulos

Details

AGLC: Stassinopoulos v Stassinopoulos [2011] VSC 647
Case: [2011] VSC 647
Decision Date: 12 December 2011

CaseChat Overview and Summary

The case of Stassinopoulos v Stassinopoulos involved a dispute concerning the nature of the beneficial interests held by the Deceased and the First Defendant in a property registered under the Transfer of Land Act 1958 as joint proprietors. The claim was brought before the court by the Plaintiff, seeking a declaration that despite the registration, the Deceased and the First Defendant held their interests as beneficial tenants in common in equal shares. Alternatively, the Plaintiff sought a declaration under section 24(2) of the Partnership Act 1958, asserting that the Deceased and the First Defendant held their interests as tenants in common in equal shares. The court was required to determine whether the presumption of beneficial tenancy in common applied in this case, and if so, whether it could override the statutory presumption of joint tenancy created by the registration.

The primary legal issue the court needed to resolve was whether the presumption of equal beneficial interests as tenants in common could be applied in light of the statutory presumption of joint tenancy created by the registration of the property under the Transfer of Land Act 1958. The court also needed to consider the applicability of section 24(2) of the Partnership Act 1958 in this context, specifically whether the Deceased and the First Defendant held their interests as tenants in common. This involved a detailed analysis of the relevant statutory provisions, case law on the presumption of equal beneficial interests, and the principles governing the registration of property.

In its judgment, the court examined the evidence presented regarding the intentions of the Deceased and the First Defendant concerning their beneficial interests in the property. The court noted that the statutory presumption of joint tenancy could be rebutted by evidence showing an intention to hold the property as tenants in common. The court held that the presumption of equal beneficial interests as tenants in common could indeed apply, particularly in the context of a relationship where such a presumption is generally applicable. However, the court found that the evidence did not support a finding that the Deceased and the First Defendant intended to hold their interests as tenants in common. The court ultimately rejected the Plaintiff's claims, finding that the statutory presumption of joint tenancy was not rebutted, and that there was no basis to apply the alternative claim under the Partnership Act 1958.

The court's final orders were that the Plaintiff's claims for a declaration that the Deceased and the First Defendant held their interests as beneficial tenants in common in equal shares, and alternatively as tenants in common under section 24(2) of the Partnership Act 1958, were dismissed. The court held that the statutory presumption of joint tenancy remained unrebutted and that there was insufficient evidence to establish an intention to hold the property as tenants in common.

Orders