NSW Trustee and Guardian v Togias [2022] NSWCA 225

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: NSW Trustee and Guardian v Togias [2022] NSWCA 225 Hearing dates: 23 May 2022 Date of orders: 9 November 2022 Decision date: 09 November 2022 Before: Mitchelmore JA at [1]; Basten AJA at [118]; Griffiths AJA at [154] Decision: (1) Appeal allowed in part. (2) Set aside the orders entered on 3 March 2022, as varied on 28 March 2022, other than orders 2 and 3 respectively. (3) Declare that the NSW Trustee and Guardian holds the land situated at XX Rothwell Circuit, Glenwood, NSW, also known as Folio Identifier XXX/XXXXXX ("the Glenwood Property"): (a) as to a one quarter interest on trust for Nicolitsa Togias; and (b) subject to a charge in favour of Nicolitsa Togias for the amount (if any) by which her payments of rates, charges and mortgage instalments since 29 January 2010 exceed the proportion payable for her interest in the Glenwood Property, less a notional occupation fee in respect of the balance of the interests in the Glenwood Property. (4) Remit the matter to the Equity Division for any further or consequential orders, if not agreed. (5) Order that the respondent pay 50 per cent of the appellant's costs of the appeal. (6) Reserve liberty to apply within 14 days for a different order as to costs of the appeal. Catchwords: EQUITY – trusts and trustees – constructive trusts – where respondent's former de facto partner convicted of drug-related charge – Forfeiture Order made in respect of de facto partner's assets pursuant to Criminal Assets Recovery Act 1990 (NSW) – where respondent performed domestic duties, raised children, and worked in business founded by de facto partner – whether "joint relationship and endeavour" formed pursuant to which respondent made contributions to acquisition of two properties the subject of the Forfeiture Order – application of principles in Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 – challenges to findings as to how respondent's contributions to properties were said to be established – application of maxim "equity is equality" Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 10A, 22, 24-27 Domestic Partners Property Act 1996 (SA), s 10 Domestic Relationships Act 1994 (ACT), s 15 Family Law Act 1975 (Cth), s 79 Family Law Act 1997 (WA), s 205ZG Poisons and Therapeutic Goods Act 1966 (Cth), s 16 Property Law Act 1974 (Qld), s 286 Property (Relationships) Act 1984 (NSW), s 20 Relationships Act 2008 (Vic), s 45 Cases Cited: Austin v Hornby (2011) 16 BPR 30,623; [2011] NSWSC 1059 Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Bennett v Tairua (1992) 15 Fam LR 317 Bryson v Bryant (1992) 29 NSWLR 188 Craig v Silverbrook [2013] NSWSC 1687 Cressy v Johnson [2009] VSC 52 Dunne v Turner (unreported, Queensland Court of Appeal, 20 August 1996) Engwirda v Engwirda [2000] QCA 61 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Green v Green (1989) 17 NSWLR 343 Hibberson v George (1989) 12 Fam LR 725 Hill v Love (2018) 53 VR 459; [2018] VSC 29 Lloyd v Tedesco (2002) 25 WAR 360; [2002] WASCA 63 Miller v Sutherland (1990) 14 Fam LR 416 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 New South Wales Crime Commission v Subakti [2016] NSWSC 1421 Parij v Parij (1997) 72 SASR 153 Read v Nicholls [2004] VSC 66 Stowe v Stowe (1995) 15 WAR 363 The Public Trustee v Kukula (1990) 14 Fam LR 97 Togias v New South Wales Crime Commission [2019] NSWSC 1556 West v Mead (2003) 13 BPR 24,431; [2003] NSWSC 161 Woods v McKinlay (No 2) [2021] NSWSC 1510 Zhang v Metcalf [2020] NSWCA 228 Texts Cited: A Black, "Baumgartner v Baumgartner, the Constructive Trust and the Expanding Scope of Unconscionability" (1988) 11 UNSW LJ 117 Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) Category: Principal judgment Parties: NSW Trustee and Guardian (Appellant) Nicolitsa Togias (Respondent) Representation: Counsel: Mr T S Hale SC and Mr A L Oakes (Appellant) Mr M Condon SC (Respondent)