Stojanovski v Stoyanovski [2024] NSWSC 1582

Supreme Court New South Wales

Medium Neutral Citation: Stojanovski v Stoyanovski [2024] NSWSC 1582 Hearing dates: 20-24 May, 4 December 2024 Date of orders: 13 December 2024 Decision date: 13 December 2024 Jurisdiction: Equity Before: Meek J Decision: Plaintiffs' claim for relief based upon proprietary estoppel by encouragement dismissed. Parties directed to bring in short minutes of order in respect of the defendant's cross-claim. Catchwords: ESTOPPEL — Proprietary estoppel by encouragement — Plaintiffs (husband and wife) claimed an interest in a residential property at Illawong on the basis of a proprietary estoppel, based upon various representations made by the defendant and his wife (the first plaintiff's parents) to them over several decades — Representations evolved over time and formed part of a larger "family arrangement" requiring the first plaintiff to get married and have a family, after which the plaintiffs were required to work and care for the defendant and his wife at home and in the defendant's property investment business in Mullumbimby, in return for income, security and (eventually) inheritance — Held that the representations as to occupation and inheritance, employment and care were made, but the estoppel case was not made out ESTOPPEL — Reliance — Discussion of requirements of reliance and counterfactual reasoning — Plaintiffs' evidence of reliance included making certain life decisions (including the first plaintiff sacrificing his art career to an extent, the second plaintiff moving to Australia from North Macedonia, and both starting a family together), financial contributions, a forgone investment opportunity and caretaking duties — Held that reliance in respect of certain matters was made out, but not to the extent claimed by the plaintiffs ESTOPPEL — Detriment and countervailing benefits — Discussion of onus of proving detriment and accounting for countervailing benefits — Whether the plaintiffs suffered detriment in circumstances where they received significant countervailing benefits which accrued to them by reason of the single "family arrangement" encouraged by the representations (including rent-free accommodation, caretaking income and proprietary interests in valuable commercial and residential investment properties) — Whether the countervailing benefits in effect subsumed or sufficiently made good the representations of the defendant so as to make it not unconscionable for him to depart from the expectation that the plaintiffs could occupy and the first plaintiff would inherit the Illawong property — Held that onus was on the plaintiffs to account for countervailing benefits in proving detriment, and that no real or substantial detriment was made out EVIDENCE — Hearsay — Exceptions — First-hand hearsay exceptions (s 63 Evidence Act 1995 (NSW)) — Whether the defendant was not available to give evidence — Discussion of meaning of "not available" in context where the defendant had a tutor in the proceedings EVIDENCE — Jones v Dunkel inferences — Whether inference can be drawn that the defendant's evidence would not have assisted his case in circumstances where, between the defence being verified by him and a consent to act as tutor being filed, the defendant failed to serve any affidavit evidence despite having court directions to do so — Held that no such inference ought to be drawn ISSUE ESTOPPEL — Orders made by consent — Whether orders made by consent in the NSW Civil and Administrative Tribunal can raise an issue estoppel Legislation Cited: Evidence Act 1995 (NSW) Real Property Act 1900 (NSW) Residential Tenancies Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church [2016] NSWSC 1122 Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No 2) [2016] NSWSC 1123 Blacket v Barnett [2017] NSWSC 1032 Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Chen v Chu [2024] NSWSC 1139 Daniel v Athans [2022] NSWSC 1712 Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018 Dillwyn v Llewelyn (1862) 4 De GF & J 517; 45 ER 1285 Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 Fiorenza v Fiorenza [2024] NSWSC 549 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gan v Xie [2023] NSWCA 163; (2023) 378 FLR 418 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hampson v Hampson [2010] NSWSC 217 Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 Jennings v Rice [2002] EWCA Civ 159 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67 Kramer v Stone [2023] NSWCA 270 Kramer v Stone [2024] HCA 48 Morris v Riverwild Management Pty Ltd (2011) 38 VR 103; [2011] VSCA 283 Newbon v City Mutual Life Assurance Society Ltd (1935) 52 CLR 723; [1935] HCA 33 Priestley v Priestley [2017] NSWCA 155 Punchbowl Casual Dining Pty Ltd v Rashays Cafes (Trial Judgment) [2024] FCA 1265 Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469 Reeves v Reeves [2024] NSWSC 134 Riches v Hogben [1985] 2 Qd R 292 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Singh v AKM Investments Group Pty Ltd [2024] NSWCA 268 Slade v Brose [2024] NSWCA 197 Soulos v Pagones [2023] NSWCA 243; (2023) 416 ALR 181 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289 Steria Ltd v Hutchison [2006] EWCA Civ 1551 Sullivan v Sullivan [2006] NSWCA 312 Twigg v Pitcher Partners Holdings Pty Ltd (No 4) [2023] NSWSC 109 Vickery v The Owners — Strata Plan No 80412 (2020) 103 NSWLR 352; [2020] NSWCA 284 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Wang v Yu [2023] NSWSC 1182 Wild v Meduri [2023] NSWSC 113 Wild v Meduri [2024] NSWCA 230 Texts Cited: Barnes QC, Michael, The Law of Estoppel (2020, Hart Publishing) Lindsay J, "Evaluation of a proprietary estoppel claim to a family farm: Text, Context and Purpose" (Paper), STEP Queensland Annual Conference, 6 October 2023 Category: Principal judgment Parties: Dimce Stojanovski (First Plaintiff / First Cross-Defendant) Valentina Tusevska-Stojanovski (Second Plaintiff / Second Cross-Defendant) Rade Stoyanovski (Defendant / Cross-Claimant) Representation: Counsel: G M McGrath (Plaintiffs / Cross-Defendants) N Bilinsky with P Boyle (Defendant / Cross-Claimant)