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Tasoulas v Tasoulas

Tasoulas v Tasoulas

Case [2018] NSWSC 861 17 May 2018

Adverse Possession

Fraud

Infeasiblity of Title

Limitation Periods

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Christopher Tasoulas v Vasiliki Tasoulas [2018] NSWSC 861
Hearing dates: 26-27 April 2018
Date of orders: 17 May 2018
Decision date: 17 May 2018
Jurisdiction: Equity - Real Property List
Before: Rein J
Decision:
See [44]

Catchwords:
REAL PROPERTY – Where transfer of the Plaintiff’s half-interest in a property was lodged with Land Titles in 1992 – Claim that Plaintiff never signed or agreed to the transfer of his half-interest in the property – Where Plaintiff lodged a caveat over the property asserting fraud – Whether impugned signature on the transfer was established not to be that of the Plaintiff – Onus of proof in relation to a claim of fraud – Reference to indefeasibility provisions of the Real Property Act 1900 (NSW) – Obiter, whether any claim not based on fraud would be statute barred under the Limitation Act 1969 (NSW).
EVIDENCE – Where Plaintiff produced no forensic evidence to support his contention that the impugned signature on the transfer is not his – Whether the Court can make its own comparison between disputed and admitted handwriting in absence of forensic evidence.
Legislation Cited: Conveyancing Rules (Version 3)
Evidence Act 1995 (NSW)
Limitation Act 1969 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Anderson v Anderson [2017] NSWCA 131
Breskvar v Wall (1971) 126 CLR 376
Briginshaw v Briginshaw (1938) 60 CLR 336
Frazer v Walker [1967] 1 AC 569
Jeans v Cleary [2006] NSWSC 647
Regina v Doney (2001) 126 A Crim R 271; [2001] NSWCCA 463
Rejfek v McElroy (1965) 112 CLR 517
Texts Cited: Nil
Category: Principal judgment
Parties: Christopher Tasoulas (Plaintiff)
Vasiliki Tasoulas (Defendant)
Representation:
Counsel:
Plaintiff in person
Mr J. Wyner (Defendant)
Solicitors:
Colquhoun & Colquhoun Solicitors (Defendant)

File Number(s): 2017/00258803
Publication restriction: Nil

Reasons for Judgment

The Plaintiff, Mr Christopher Tasoulas, is the son of the Defendant, Mrs Vasiliki Tasoulas. The subject of this dispute is a property at 74 Park Road Hunters Hill, New South Wales (“the Property”).
The Property was purchased in July 1991 for $267,000 in the joint names of the Plaintiff and the Defendant. Of the purchase price, $240,000 was provided by Westpac Banking Corporation (“Westpac”) and the balance of $27,000 was paid by the Plaintiff and Defendant in equal shares. The Plaintiff and Defendant provided to Westpac a mortgage over the Property to support the loan dated 2 July 1991 (“the Joint Mortgage”) (see Exhibit A, pp 28-29).
In 1992, a transfer dated 18 November 1991 transferring the Plaintiff’s half interest in the Property (“the Transfer”) was lodged with the Land Titles Office. Following the lodgement of the Transfer, the Plaintiff ceased to be recorded as an owner of the Property. Since November 1992, the Defendant has continued to be recorded on title as the sole owner of the Property.
The Transfer (see Exhibit A, p 36) bears a signature above the description “Signature of Transferor”, purporting to be the signature…

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 Tasoulas v Tasoulas

Details

AGLC: Christopher Tasoulas v Vasiliki Tasoulas [2018] NSWSC 861
Case: [2018] NSWSC 861
Decision Date: 17 May 2018

CaseChat Overview and Summary

In the matter of Tasoulas v Tasoulas, the dispute centred around the transfer of a half-interest in a property. The Plaintiff alleged that he never signed or agreed to the transfer of his half-interest in the property, and that the signature on the transfer document was not his. The Plaintiff lodged a caveat over the property asserting fraud. The Defendant contested the Plaintiff's claims, and the matter was determined by the court. The court was required to decide whether the signature on the transfer was established not to be that of the Plaintiff, and whether the Plaintiff's claim was statute barred under the Limitation Act 1969 (NSW).

The court found that the Plaintiff had not produced any forensic evidence to support his contention that the signature on the transfer was not his. The court also noted that the Plaintiff had not adduced any evidence to support his claim of fraud. The court considered whether it could make its own comparison between the disputed and admitted handwriting in the absence of forensic evidence. The court held that it could not make its own comparison and that the Plaintiff had failed to discharge the onus of proof in relation to his claim of fraud. The court also noted that any claim not based on fraud would be statute barred under the Limitation Act 1969 (NSW).

The court found in favour of the Defendant and dismissed the Plaintiff's claim. The Plaintiff's caveat over the property was lifted, and the transfer of the Plaintiff's half-interest in the property was upheld. The Plaintiff's claim was statute barred under the Limitation Act 1969 (NSW), and the court held that the Defendant's title to the property was indefeasible under the Real Property Act 1900 (NSW). The Plaintiff's claim for damages was also dismissed.

In conclusion, the court held that the Plaintiff had failed to discharge the onus of proof in relation to his claim of fraud, and that any claim not based on fraud would be statute barred. The court also held that the Defendant's title to the property was indefeasible, and that the Plaintiff's caveat over the property was lifted. The Plaintiff's claim for damages was dismissed, and the transfer of the Plaintiff's half-interest in the property was upheld.

Orders