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Stojanovski v Stoyanovski

Stojanovski v Stoyanovski

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Case Copied 13 December 2024 70 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Stojanovski v Stoyanovski [2024] NSWSC 1582
Hearing dates: 20-24 May, 4 December 2024
Date of orders: 13 December 2024
Decision date: 13 December 2024
Jurisdiction: Equity
Before: Meek J
Decision:
Plaintiffs’ claim for relief based upon proprietary estoppel by encouragement dismissed. Parties directed to bring in short minutes of order in respect of the defendant’s cross-claim.

Catchwords:
ESTOPPEL — Proprietary estoppel by encouragement — Plaintiffs (husband and wife) claimed an interest in a residential property at Illawong on the basis of a proprietary estoppel, based upon various representations made by the defendant and his wife (the first plaintiff’s parents) to them over several decades — Representations evolved over time and formed part of a larger “family arrangement” requiring the first plaintiff to get married and have a family, after which the plaintiffs were required to work and care for the defendant and his wife at home and in the defendant’s property investment business in Mullumbimby, in return for income, security and (eventually) inheritance — Held that the representations as to occupation and inheritance, employment and care were made, but the estoppel case was not made out
ESTOPPEL — Reliance — Discussion of requirements of reliance and counterfactual reasoning — Plaintiffs’ evidence of reliance included making certain life decisions (including the first plaintiff sacrificing his art career to an extent, the second plaintiff moving to Australia from North Macedonia, and both starting a family together), financial contributions, a forgone investment opportunity and caretaking duties — Held that reliance in respect of certain matters was made out, but not to the extent claimed by the plaintiffs
ESTOPPEL — Detriment and countervailing benefits — Discussion of onus of proving detriment and accounting for countervailing benefits — Whether the plaintiffs suffered detriment in circumstances where they received significant countervailing benefits which accrued to them by reason of the single “family arrangement” encouraged by the representations (including rent-free accommodation, caretaking income and proprietary interests in valuable commercial and residential investment properties) — Whether the countervailing benefits in effect subsumed or sufficiently made good the representations of the defendant so as to make it not unconscionable for him to depart from the expectation that the plaintiffs could occupy and the first plaintiff would inherit the Illawong property — Held that onus was on the plaintiffs to account for countervailing benefits in proving detriment, and that no real or substantial detriment was made out
EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions (s 63 Evidence Act 1995 (NSW)) — Whether the defendant was not available to give evidence — Discussion of meaning of “not available” in context where the defendant had a tutor in the proceedings
EVIDENCE — Jones v Dunkel inferences — Whether inference can be drawn that the defendant’s evidence would not have assisted his case in circumstances where, between the defence being verified by him and a consent to act as tutor being filed, the defendant failed to serve any affidavit evidence despite having court…

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.

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Details

Case: [2024] NSWSC 1582
Decision Date: 13 December 2024

CaseChat Overview and Summary

The plaintiffs, a husband and wife, sought to establish an interest in a residential property at Illawong based on proprietary estoppel, alleging that representations made by the defendant and his wife, the first plaintiff's parents, over several decades created an expectation that the plaintiffs would receive the property. The representations evolved over time and formed part of a broader "family arrangement" that required the first plaintiff to marry, have a family, and subsequently work and care for the defendant and his wife at home and in his property investment business in Mullumbimby in return for income, security, and inheritance. The court was required to determine whether the plaintiffs' proprietary estoppel claim was valid, considering the representations made, the reliance placed on those representations, the detriment suffered, and the countervailing benefits received.

The court found that while the representations regarding occupation and inheritance, employment, and care were indeed made, the plaintiffs' estoppel claim was not substantiated. The plaintiffs argued that they relied on the representations by making significant life decisions, including the first plaintiff sacrificing part of his art career, the second plaintiff moving from North Macedonia to Australia, and both starting a family together. The court acknowledged some reliance but held that it did not extend to the extent claimed by the plaintiffs. Furthermore, the court examined whether the plaintiffs suffered a detriment that outweighed the significant countervailing benefits they received, such as rent-free accommodation, caretaking income, and proprietary interests in valuable commercial and residential investment properties. The court concluded that the plaintiffs did not prove a real or substantial detriment.

The court also addressed the availability of the defendant as a witness, noting that while the defendant had a tutor in the proceedings, no inference was drawn that his evidence would not have assisted his case. Additionally, the court held that an inference under Jones v Dunkel should not be drawn where the defendant failed to serve any affidavit evidence despite court directions, as the failure occurred between the defence being verified and a consent to act as tutor being filed. Finally, the court considered whether orders made by consent in the NSW Civil and Administrative Tribunal could raise an issue estoppel, but found that such orders did not create an issue estoppel in this case.

Orders