Tsourounakis and Repatriation Commission

Case [2005] AATA 892

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 TSOUROUNAKIS

Applicants

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 129

Repatriation 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 96

REASONS 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

In the matter of Tsourounakis and the Repatriation Commission, the Federal Court of Australia was tasked with determining the value of the applicant's assets for the purposes of assessing his entitlement to an age service pension. The central issue was whether the applicants had any beneficial ownership of the real property located at 16 Ganges Street, West End, Brisbane, and if their son had an interest in the property. Furthermore, the court had to consider whether proprietary estoppel applied in light of the son's substantial improvements to the property and the relevance of his bankruptcy.

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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