MIODRAG DJORDJEVIC v ALEKSANDAR DJORDJEVIC & ANOR. [1999] NSWSC 1223

New South Wales Supreme Court CITATION : MIODRAG DJORDJEVIC v ALEKSANDAR DJORDJEVIC & ANOR. [1999] NSWSC 1223 CURRENT JURISDICTION : EQUITY FILE NUMBER(S) : 4145/96 HEARING DATE(S) : 10 August 1998, 9, 22, 23 and 25 March 1999 JUDGMENT DATE : 15 December 1999

PARTIES : MIODRAG DJORDJEVIC v ALEKSANDAR DJORDJEVIC & ANOR. JUDGMENT OF : Simos J

MS Zammit (Plaintiff - originally) Plaintiff in person (later) COUNSEL : GP Segal (First Defendant) IF Dwyer, Solicitor (Second Defendant - submitting) SOLICITORS : Terence G. Jessop (First Defendant) Laurence & Laurence (Second Defendant - submitting) CATCHWORDS : Gift of cheques - gift by plaintiff (father) to first defendant (son) of $120,000 by delivery of two cheques coupled with intention to make one gift of $50,000 and a second gift of $70,000 there being no issue that the cheques were paid - ; Held, the gifts were complete and could not be recalled by plaintiff (donor). CASES CITED : In Re Swinburne; Sutton v Featherley (1926) 1 Ch 38 DECISION : Proceedings dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SIMOS J

WEDNESDAY, 15 DECEMBER 1999

(NO, 4145/1996): MIODRAG DJORDJEVIC v ALEKSANDAR DJORDJEVIC & ANOR.

JUDGMENT

1 HIS HONOUR: The Proceedings: By further amended summons filed 20 June 1997 Miodrag Djordjevic, the plaintiff, claims, in effect, to be entitled to recover from Aleksandar Djordjevic, the first defendant, his son, an amount of $120,000 paid by the plaintiff to the first defendant by way of two payments by cheque, namely, a first payment of $50,000, being part of a payment by cheque of $57,000, and a second, later, payment by cheque of $70,000. 2 The further amended summons claims a declaration that the first defendant holds the amount of $120,000 standing to the credit of the first defendant's account with Advance Bank Australia Limited, the second defendant, and known as IBD Account No. 337.025115 upon trust for the plaintiff, and further, and in the alternative, a declaration that that amount in that account is the property of the plaintiff. Further, and in the alternative, the further amended summons claims a declaration that the first defendant holds the amount of $120,000 upon trust for the plaintiff. 3 The alleged factual basis for the plaintiff's claim is that the plaintiff paid the said moneys to the first defendant to enable the first defendant to bid at auction on behalf of the plaintiff, and to pay, on behalf of the plaintiff, a deposit in respect of the purchase by the plaintiff of any property in respect of which the first defendant was the successful bidder on behalf of the plaintiff, pursuant to arrangements made between the plaintiff and the first defendant, during the time when the plaintiff was, or was anticipated to be, away from Australia and in Yugoslavia. In the events which happened, the first defendant did not make any bid at any auction on behalf of the plaintiff and, accordingly, no occasion arose for the payment of any deposit by the first defendant on behalf of the plaintiff. 4 Counsel for the plaintiff in the "Short Outline of Submissions" filed on behalf of the plaintiff submitted that the resolution of the issues in the proceedings involved "an interplay of two equitable principles" being "the presumption of a resulting trust in favour of the plaintiff as the source of the $120,000 deposited in the IBI) Account where the plaintiff's son, the first defendant, holds the $120,000 on trust for the plaintiff" and the "countervailing presumption of advancement to the plaintiff's son". 5 In my opinion, however, the resolution of the present proceedings does not depend upon the interplay of any presumptions because, in my opinion, the evidence is sufficiently detailed and clear to enable the Court to determine the actual intention of the parties which, of course, displaces any presumptions which might otherwise be applicable. 6 Although not embodied in any formal "defence" document, the affidavits filed on behalf of the first defendant make it clear that the first defendant resists the claims of the plaintiff upon the basis that the first payment to him by the plaintiff of $50,000 (part of the sum of $57,000) was a payment by way of gift from the plaintiff to the first defendant to enable the first defendant to pay a deposit in respect of the purchase by him of a home unit to be selected by him, whilst the payment by the plaintiff to the first defendant of the further sum of $70,000 was a payment by way of gift from the plaintiff to the first defendant to enable the first defendant to pay the balance of purchase money in respect of a home unit to be purchased by him, to the intent that the total sum of $120,000 given by the plaintiff to the first defendant would be used by the first defendant to pay the purchase price in full of a home unit to be purchased by the first defendant.