Stephenson v Santos

[2020] NSWCA 262

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Stephenson v Santos [2020] NSWCA 262

Hearing dates:

2 October 2020

Decision date:

21 October 2020

Before:

Basten JA at [1];
Leeming JA at [2];
McCallum JA at [43].

Decision:

1. To the extent necessary, grant leave to appeal.

2. Appeal dismissed, with costs.

Catchwords:

CONSTRUCTIVE TRUSTS – house purchased in name of niece – primary judge found aunt and niece agreed that aunt would pay half outgoings in exchange for a one half beneficial interest – primary judge ordered niece to account to aunt for one half of net proceeds of sale, on terms that aunt repay amounts obtained from Centrelink for rental assistance – whether reasons of primary judge inadequate – whether finding as to common intention should be set aside – whether primary judge erred as to effect of illegality – appeal dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Allen v Snyder [1977] 2 NSWLR 685

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336

Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gnych v Polish Club Ltd (2015) 255 CLR 414; [2015] HCA 23

Krnjulac v Lincu [2015] NSWCA 367

Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25

NSW Police Force v Winter [2011] NSWCA 330

Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308

Category:

Principal judgment

Parties:

Olga Stephenson (Appellant)
Lourdes Santos (Respondent)

Representation:

Counsel:
J McIntosh (Appellant)
H Jewell (Respondent)

Solicitors:
Diaz & Diaz Lawyers (Appellant)
Seniors Rights Service (Respondent)

File Number(s):

2020/83815

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2020] NSWSC 90

Date of Decision:

14 February 2020

Before:

Parker J

File Number(s):

2018/389003

Judgment

1. BASTEN JA: I agree with Leeming JA.

2. LEEMING JA: The appellant, Ms Olga Stephenson, and the respondent, Ms Lourdes Santos, are niece and aunt. Ms Santos came to Australia from the Philippines many years ago. In 1985, she sponsored her sister Ms Adelina Aracan, together with her sister’s husband and son, to migrate to Australia as skilled migrants. In 2006, Ms Santos sponsored her niece Ms Stephenson to come to Australia, once again under the skilled migration program. At first, Ms Stephenson lived with Ms Santos in rented accommodation in North Ryde together with Ms Santos’ brother, Mr Macario Santos. In 2008, Ms Stephenson acquired a four bedroom townhouse in Rooty Hill in western Sydney. Contracts were exchanged on or around 22 November 2008 and the sale was completed on 23 December 2008. Ms Stephenson was the sole registered proprietor. The purchase price was $350,000.

3. The two women, together with Ms Santos’ brother, thereafter lived in the townhouse until 2017. Ms Santos lost her job in around 2009, and in 2010, aged 64, she…