Zubcic & Zubcic

This case concerned a dispute between a husband and wife, with a second respondent also involved, heard by Rees J. The primary dispute involved the division of property and the determination of various financial entitlements and liabilities arising from their marital relationship and associated business dealings. The wife sought to set aside a transfer document on the grounds of non est factum and unconscionable conduct, alleging the second respondent, who had limited English, was unaware of what he was signing and was at a special disadvantage. The court also considered claims of partnership, waste, and adult child maintenance.

The legal issues before the court included whether a transfer document should be set aside due to non est factum and unconscionable conduct, the existence and extent of a partnership between the husband and wife, whether either party had committed waste in their dealings with jointly owned property or partnership assets, the applicability of the presumption of advancement and the imposition of resulting or constructive trusts, the impact of family violence on contributions, and the entitlement to adult child maintenance. The court was required to determine the beneficial interests in various properties and the equitable accounting between the parties, considering outgoings and contributions.

Rees J found that the transfer document was void ab initio on the basis of non est factum and unconscionable conduct, setting aside the transfer. The court determined that a partnership existed between the husband and wife and that both had neglected their tax obligations, finding the wife liable for half the partnership tax. While the wife's claim of waste due to the husband's gambling was not substantiated, the court found the wife had committed waste in her duties as a trustee for sale. The presumption of advancement was rebutted, and the second respondent was found to hold a 12.5 per cent interest in a property by way of a resulting trust, with a constructive trust also being imposed. The court also ordered the husband to pay a lump sum for adult child maintenance. The wife's claim for spousal maintenance was dismissed.

The court made detailed orders regarding the distribution of funds from controlled monies accounts and the proceeds of sale of a property, including payments to the second respondent, various creditors, the husband, and the wife. Trustees for sale were appointed for another property, with specific directions for the application of sale proceeds. The court also addressed the costs of separate Supreme Court proceedings.