Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 892
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/966
VETERANS' APPEALS DIVISION )
Re EMMANOUIL TSOUROUNAKIS
and VASILIKI TSOUROUNAKISApplicants
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott Date15 September 2005
PlaceBrisbane
Decision
Matter remitted for assessment by the Repatriation Commission with the direction that Mr Michael Tsourounakis has a beneficial interest in the property at 16 Ganges Street, West End, Brisbane to the extent of one half of the value of the property.
...................[Sgd]......................
P McDermott
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – age service pension – value of assets – whether applicants had any beneficial ownership of real property – whether son of applicants had interest in real property - whether proprietary estoppel where son made substantial improvements to the property – relevance of bankruptcy of son
Bankruptcy Act ss 5(1), 58(1)(a), 116(1)(a)
Land Title Act 1994 (Qld)s181
Married Women’s Property Act 1882 (Eng)
Veterans’ Entitlements Act 1986 ss 5L, 36,36A(2), 36N, 48, 52C(1) 57B,Bagshaw v Scott [2002] FCAFC 362
Cobb v Cobb [1955] 1 WLR 731
Collector of Customs (NSW) v Brain Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Commonwealth v Verwayen (1990) 170 CLR 394
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Dillwyn v Llewelyn (1862) 45 ER 1285
Dinyarrak Investments Pty Ltd v Amoco Australia Ltd (1982) 45 ALR 214
Fribance v Fribance [1957] 1 WLR 384.
Giumelli v Giumelli (1999) 196 CLR 101
Jackson v Crosby (1979) 21 SASR 280
Kidner v Department of Social Security (1993) 30 ALD 428
Macdonald v Macdonald [1957] 2 All ER 857
Motion v Moojen (1872) LR 14 Eq 202
Official Receiver v Schultz (1990) 170 CLR 306
Pitwinski v Corporate Trustees of the Diocese of Armidale [1977] 1 NSWLR 266
Pridmore v Magenta (1999) 161 ALR 458
Radanovic and Secretary, Department of Family and Community Services (2001) 61 ALD 530
Raffaele v Raffaele [1962] WAR 29
Ramsden v Dyson (1866) LR 1 E&IA 129Repatriation Commission v Tsourounakis [2004] FCAFC 332
Shaw v Applegate [1977] 1 WLR 970
The Union Joint Stock Mutual Banking Association v King (1858) 25 Beav 72 (53 ER 563)
Waltons Stores (Limited) v Maher (1988) 164 CLR 387
Willmot v Barber (1880) 15 Ch D 96REASONS FOR DECISION
15 September 2005 Senior Member P McDermott
Introduction
1. I have to decide whether Mr Emmanouil Tsourounakis and Mrs Vasiliki Tsourounakis have any beneficial interest in a home in which they do not reside. The Repatriation Commission (‘the Commission’) contend that the home is an asset of Mr and Mrs Tsourounakis for the purpose of assessing the entitlement of Mr Tsourounakis to a age service pension under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).
2. Mr Emmanouil Tsourounakis and Mrs Vasiliki Tsourounakis are the applicants in these proceedings,
3. The home is located at 16 Ganges Street, West End, Brisbane (‘the Property’).
4. This application has previously been before this Tribunal. In those proceedings Mr…
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- AGLC
- Tsourounakis and Repatriation Commission [2005] AATA 892
- Case
- [2005] AATA 892
- Decision Date
CaseChat Overview and Summary
The applicants argued that they had a beneficial interest in the property due to their contributions towards its purchase and maintenance, while the Repatriation Commission contended that the property belonged entirely to the son. The court examined the circumstances surrounding the purchase and ownership of the property, as well as the son's bankruptcy, to determine the applicants' beneficial interest. The court found that the applicants had a beneficial interest in the property to the extent of one half of its value, taking into account the contributions they made towards its purchase and maintenance, and the improvements made by their son.
The court's decision was influenced by the principles of proprietary estoppel, which prevent a party from denying the existence of an interest in property where that party has led another to believe that they have an interest in the property. The court held that the applicants had led their son to believe that he had an interest in the property, and as a result, they had a beneficial interest in the property. The court also found that the son's bankruptcy was irrelevant to the determination of the applicants' beneficial interest in the property.
The court remitted the matter to the Repatriation Commission for reassessment of the applicants' age service pension, taking into account the beneficial interest of the applicants in the property at 16 Ganges Street, West End, Brisbane.
Orders
Orders of the court
Matter remitted for assessment by the Repatriation Commission with the direction that Mr Michael Tsourounakis has a beneficial interest in the property at 16 Ganges Street, West End, Brisbane to the extent of one half of the value of the property.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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