STEFANOVIC v PETROVIC [1989] NSWCA 198

STEFANOVIC v PETROVIC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER JA and Hope AJA 30 October 1989, 30 October 1989

[1989] NSWCA 198

Gleeson CJ The submissions on behalf of the appellant in this matter have beenvery brief, and my judgment will be brief also. It is convenient to deal first with grounds 1, 2, 3 and 5 in the Notice of Appeal.

The proceedings before Needham J were instituted by the late Mr Djokovic in an attempt to recover title to certain land at 158 Canley Vale Road, Canley Vale. Mr Djokovic, whom I shall call the deceased, died before the action came on for hearing before Needham J, and the present appellant is the legal personal representative of the deceased.

The dealings which gave rise to the litigation can be summarised as follows: The deceased formed during his life time an intention to make a gift of the Canley Vale property to the respondents, and perfected that intention by executing a Memorandum of Transfer of the subject land, delivering to them the Certificate of Title to the property, and ensuring that they became the registered proprietors of the subject land. However, it was alleged that in circumstances that are set out in the Judgment of Needham J, and that do not presently require repetition, the respondents formed an intention to retransfer the land to the deceased during his life time, and in pursuance of that intention handed back to the deceased the Certificate of Title to the subject land.

The learned trial judge declined to find as a fact that the delivery of the Certificate of Title back to the deceased was in pursuance of an intention to retransfer the subject land to him. The facts and circumstances surrounding the redelivery of the Certificate of Title are somewhat complicated and are sufficiently set forth in the judgment of Needham J. The findings of fact of his Honour in relation to the subject matter of the intention with which the Certificate of Title was redelivered to the deceased are called in question in this appeal, but no detailed argument has been addressed as to why this Court should interfere with those findings of fact. In my view, formed after a reading of the evidence given at first instance, there is no sufficient reason to justify such interference.