Stoklasa v Stoklasa - [2004] NSWSC 518

CITATION: Stoklasa v Stoklasa [2004] NSWSC 518

HEARING DATE(S): 17/05/04, 18/05/04

JUDGMENT DATE:
18 June 2004

JUDGMENT OF: Gzell J

DECISION: Breach of implied term not proved. Declaration of equitable interest refused. Equitable charge for value of obligation to provide accommodation and care to be determined by Master granted.

CATCHWORDS: EQUITY - Equitable Estates and Interests - Sale of house to son at undervalue on terms that father provided with accommodation and care for life - Eviction of father for alleged improper suggestions of a sexual nature to grandson - Whether breach of implied term not to make such suggestions proved - Whether plaintiff entitled to equitable interest in house to extent of value exceeding purchase price - Whether unconscionable and inequitable for son to retain house freed from obligation to provide accommodation and care

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Muschinski v Dodds (1984-1985) 160 CLR 583
Baumgartner v Baumgartner (1987) 164 CLR 137
The Commercial Bank of Australia Ltd v Amadio (1982-1983) 151 CLR 447
Morris v Morris [1982] 1 NSWLR 61
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353

PARTIES :
Karel Stoklasa - Plaintiff
Gary Stoklasa - Defendant

FILE NUMBER(S): SC 3959/03

COUNSEL: Mr S Galitsky - For Plaintiff
Mr VRW Gray - For Defendant

SOLICITORS: Lough Wells Duncan Lawyers
Leo & Morrison Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 18 JUNE 2004

3959/03 KAREL STOKLASA v GARY STOKLASA

JUDGMENT

1 The plaintiff and his wife held their house as joint tenants. Following her death, the plaintiff transferred the house to one of their children, the defendant. The defendant gave the plaintiff notice to leave the house. The plaintiff claimed that so much of the value of the house as exceeded the amount he received for the transfer was held in trust for him or was charged in his favour and he sought the appointment of a trustee for sale.

2 The plaintiff said he reached an agreement with the defendant about a month before his wife died that the defendant would purchase the house for $50,000 and the plaintiff would reside in the house and be looked after by the defendant for the rest of his life.

3 Cross examination of the plaintiff revealed many inconsistencies. For example, he said there were no discussions to this effect until after his wife’s dead. He denied that he had any conversation with the defendant about how much his wife wanted for her interest in the home. However, he agreed that he had asked for $25,001 as a joke. He wanted one dollar more than his wife had asked for her interest in the house.

4 The defendant said he paid the plaintiff $25,000 by way of cheque and $1 in cash. The plaintiff accepted that this was so. He was asked how he knew his wife…

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: [2004] NSWSC 518
Decision Date: 18 June 2004

CaseChat Overview and Summary

The case involved a dispute between a father and son, Stoklasa and Stoklasa, in the Federal Court of Australia. The father sold his house to his son at a price significantly below its market value, with the condition that he would be provided with accommodation and care for the rest of his life. The son subsequently evicted the father, alleging that he had made improper suggestions of a sexual nature to his grandson. The father sought to enforce the implied term of the sale contract that he would not be evicted unless he breached the condition of not making such suggestions, and he sought an equitable interest in the house to the extent of the difference between its market value and the purchase price. The son argued that the father had breached the implied term, and that it was not unconscionable or inequitable for him to retain the house free from the obligation to provide accommodation and care.
The court was required to determine whether the father had breached the implied term of the sale contract, and whether it was unconscionable and inequitable for the son to retain the house freed from the obligation to provide accommodation and care. The court also had to consider whether the father was entitled to an equitable interest in the house to the extent of the value exceeding the purchase price.
The court found that the father had not breached the implied term of the sale contract, as the evidence of the grandson's testimony was not reliable. The court held that it was unconscionable and inequitable for the son to retain the house free from the obligation to provide accommodation and care, and that the father was entitled to an equitable interest in the house to the extent of the value exceeding the purchase price. The court ordered that the son pay the father the difference between the market value of the house at the time of sale and the purchase price, plus interest. The court also ordered that the son provide the father with alternative accommodation and care for the rest of his life.

Orders