Tramosljanin v Cvetkovic

[2020] NSWSC 1928

Supreme Court

New South Wales

Medium Neutral Citation:

Tramosljanin v Cvetkovic [2020] NSWSC 1928

Hearing dates:

30 December 2020

Date of orders:

30 December 2020

Decision date:

30 December 2020

Jurisdiction:

Equity

Before:

Cavanagh J

Decision:

(1) The summons is returnable instanter.

(2) Time for service of the summons be abridged.

(3) An order that the operation of caveat number AQ 72079 lodged over the property described in folio 5/SP38238 known as 5/31 Perigee Close, Doonside, be extended until 9 March 2021.

Catchwords:

LAND LAW — Caveats — Extension of operation of caveat — Whether caveator’s claim has or may have substance — Evidence of existence of constructive trust on principles of Baumgartner v Baumgartner

Legislation Cited:

Real Property Act 1900 (NSW), s 74D

Cases Cited:

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

Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78

Category:

Procedural and other rulings

Parties:

Slavica Tramosljanin (Plaintiff)
Zikica Cvetkovic (Defendant)

Representation:

Counsel:
L Ang (Plaintiff)

Solicitors:
Capitol Legal (Plaintiff)

File Number(s):

2020/368718

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. By way of a summons which I granted leave to file in court today, 30 December 2020, the plaintiff seeks an order that the operation of a caveat lodged over property known as 5/31 Perigee Close, Doonside, be extended until further order.

2. Mr Ang of counsel appears on behalf of the plaintiff. There is no appearance for the defendant.

3. Mr Ang informs me that he has been instructed by his solicitor that the summons has been served on the defendant and that there has been a conversation between the solicitors for the plaintiff and the solicitors for the defendant to the effect that the defendant will not be appearing today and that the defendant neither consents nor opposes the orders sought in the summons.

4. In the circumstances, I granted leave to the plaintiff to proceed with the matter today.

5. The plaintiff must establish an entitlement to the orders sought, even though the defendant has decided not to take any position at this time.

6. In support of the application, the plaintiff relies on her own affidavit sworn 29 December 2020.

7. I will set out the background to the matter. The plaintiff is currently 67 years of age. She and the defendant have been involved in a relationship since 2008.

8. They had been living in a de facto relationship at the property situated at Perigee Close, Doonside, since approximately 2008.

9. The plaintiff says that in October 2008 they decided to buy a house and found the Doonside property. The defendant borrowed money from the bank and bought the property for $200,000 in October 2008. The house needed renovation. Initially, the plaintiff kept a record of all the payments she made towards the renovation of the property. That is annexure A to her affidavit. These expenses, which amount to $20,498, were incurred at the time of original purchase of the property and initial renovation of the property.

10. As set out in paragraph 16 of her affidavit, the plaintiff says that at some stage the defendant noticed that she was keeping a record of expenses and queried why she was keeping such a record. He said:

“Why are you doing that? This is all ours. You don't have to keep a record. I will pay the mortgage and you can look after the house.”

11. She says that after that she did not make any more mortgage payments, but paid for things such as food, dishes, bed sheets and other things.

12. She says that they always slept together at the Doonside property and they travelled together. She details all the places they have been in the past 12 years.

13. She says that throughout their relationship she has always done all the cleaning, washing and ironing. She cooked most of the meals and regularly cleaned the property. The defendant worked full-time. She always made sure that she had the dinner ready when he came home and that he had a clean uniform to wear to work. She looked after him after he sustained an injury at work.

14. She says that over the past 11 years they have attended Christmas, Easters, Patron Saint days and numerous parties as couples. They have entertained at the Doonside property. She always did the cleaning and preparation for the entertainment.

15. The defendant was away in Serbia during the period September 2019 until January 2020. While he was away she regularly cleaned the property and took care of the garden.

16. In January 2020, there was an argument and the defendant determined that he wished to end the relationship. Around that time he referred to having spoken to a real estate agent who suggested that the property was worth $550,000 to 600,000.

17. She gave the keys back to him and removed all her things from the Doonside property by 6 February 2020.

18. On 11 June 2020, she lodged a caveat over the property. The caveat is due to expire on 5 January 2021. There was no mortgage over the property.

19. She says that she intends to commence proceedings for property settlement in the Federal Circuit Court. She says that she will be seeking a declaration of constructive trust in those proceedings. She gives an undertaking as to damages with respect to the caveat.

20. Mr Ang submits that I would be satisfied that the caveat should be extended on the basis that there is at least a reasonable argument as to the existence of a constructive trust, having regard to the principles set out by the High Court in Baumgartner v Baumgartner. [1]

    1. (1987) 164 CLR 137; [1987] HCA 59.

21. In my view, there is at least a reasonable argument that the relationship between the parties was one which might fall within the principles set out in Baumgartner.

22. Further, as identified by Deane J in Muschinski v Dodds,[2] the constructive trust serves as a remedy which equity imposes to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.

    2. (1985) 160 CLR 583; [1985] HCA 78.

23. Although in Baumgartner the parties pooled their earnings with a view to meeting all expenses and outgoings arising from their living together as a family, the principle is the same. In this matter it appears that the plaintiff contributed to the expenses of initially renovating the property and then maintaining the property whilst undertaking the bulk of the work around the home. According to the plaintiff, the defendant worked full-time. He might have contributed to the repayment of the mortgage, but the plaintiff's contribution, after initially being financial, became more non-financial. The Court would have regard to both types of contributions.

24. In the circumstances, I am satisfied that there is a prima facie case to be tried as to the existence of a constructive trust giving rise to the plaintiff having an equitable interest in the property.

25. Further, there can be no issue as to the balance of convenience.

26. The defendant has chosen not to put any evidence or submissions before the Court on either issue.

27. As set out in s 74D of the Real Property Act 1900 (NSW), a caveator, being the plaintiff, may apply to the Court to extend the operation of the caveat. If the Court is satisfied that the caveator’s claim has or may have substance, the Court may make an order extending the operation of the caveat concerned for such period as is specified in the order or until the further order of the Court.

28. Having regard to s 74D, I am only required to be satisfied that the caveator’s claim has or may have substance. I am so satisfied. In the circumstances, I make an order extending the caveat.

29. The plaintiff seeks an order that the caveat be extended until the conclusion of the Federal Circuit Court proceedings, which have not even been commenced at this stage. I am not satisfied that the order should be extended for that period. The appropriate course is to extend the caveat for a period of nine weeks. According to the plaintiff, she will be commencing proceedings in the Federal Circuit Court within that period.

30. No doubt this application is properly made but it has been made on an urgent basis and it may be that the defendant was not in a position to deal with the application over the Christmas period. I have in mind that the defendant will be informed of this judgment immediately and that during the nine-week period, either the defendant can indicate to the plaintiff that it will oppose any further extension of the caveat, or there may be some agreement between the parties as to a further extension of the caveat. Obviously, I do not wish the parties to expend unnecessary costs on further applications but it is important that the defendant be given an opportunity to further consider his position.

31. There may be some agreement as to what should happen to the caveat going forward but I will leave that to the parties. If there is no agreement, then the plaintiff will, no doubt, take her own course as to what she wishes to do.

32. In the circumstances, I make the orders sought in the summons being:

1. The summons is returnable instanter.

2. Time for service of the summons be abridged.

3. An order that the operation of caveat number AQ 72079 lodged over the property described in folio 5/SP38238 known as 5/31 Perigee Close, Doonside, be extended until 9 March 2021.

33. I confirm the directions hearing before the registrar on 2 March 2021, at which time I would expect the parties to either have agreement as to the extension of the caveat or to be in a position to inform the Court what is to happen with the matter.

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Endnotes

Decision last updated: 07 January 2021