LITOVKINAS v KODERITSCH [2001] NSWSC 290

New South Wales Supreme Court

CITATION : LITOVKINAS v KODERITSCH [2001] NSWSC 290 revised - 19/04/2001 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2554/2000 HEARING DATE(S) : 25, 26 March 2001 JUDGMENT DATE : 27 March 2001

PARTIES : EUGENE LITOVKINAS v JOHN MARTIN KODERITSCH (ESTATE OF ETHEL KODERITSCH) JUDGMENT OF : Master Macready at 1

COUNSEL : J.E. Armfield for plaintiff C.M. Simpson for defendant SOLICITORS : Antonys Lawyers for plaintiff Djekovic Hearne & Walker for defendant CATCHWORDS : Trust. Resulting trust. Whether in the circumstances presumption rebutted by evidence of intention. Held it was rebutted. - Family Provision. Claim by de facto partner of 22 years. Question of whether a Crispt order is appropriate. Held not appropriate. Singer v Berghouse (1994) 181 CLR 201 CASES CITED : Goloski v Goloski, (unreported 5 October 1993 Luciano v Rosenblum (1985) 2NSWLR 65 Elliott v Elliott Court of Appeal 24 April 1986. DECISION : Paragraph 61 and 69

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

TUESDAY, 27 MARCH 2001

2554/00 - EUGENE LITOVKINAS v JOHN MARTIN KODERITSCH AS EXECUTOR OF THE ESTATE OF ETHEL KODERITSCH

JUDGMENT

1 MASTER: The plaintiff in this case seeks a declaration that the defendant holds one half interest in the property 13 Wood Street, Randwick, upon a resulting trust for himself. The property was in the name of the plaintiff and the late Ethel Koderitsch as tenants in common in equal shares. The late Ethel Koderitsch, who died on 16 May 1998, aged 76 years and the plaintiff had lived together in a de facto relationship for some 22 years. 2 The defendant is the son of the deceased. Under the deceased's will, which was made on 4 July 1979, the defendant was appointed executor and after a bequest of jewellery the residue was, by cl 4 of the will, given to the defendant absolutely. The will went on to provide in cl 5 as follows:- "5.UPON MY DEATH my co-tenant in common EUGENE LITOVKINAS shall be entitled to remain living in the home unit at 5/9-11 Waltham Street, Coogee rent free until his death or until such time as he wishes to sell the subject home unit. In consideration Mr Litovkinas will grant me a similar right should he predecease me." 3 The plaintiff had made a similar will on the same date but the residuary beneficiaries were his nephews. 4 The plaintiff, in the event that his claim for a declaration of trust failed, sought in the alternative an extension of time to make application under s 16 of the Family Provision Act and made a claim under s 7 of the Act. 5 The estate is a small one comprising a half share in 13 Wood Street, Randwick, which half share has a value of $230,000. There is cash after provision for costs of administration amounting to $1,250 of $12,359.91. The defendant's costs to date are $18,650 and the plaintiff's $27,753.50. 6 A Judge of the Court has referred the whole of the claims in this matter to a Master for hearing. It is useful if I do set out the chronology so far as relevant to the matter. 7 The deceased was born in 1922 and the plaintiff in 1924. They met in 1975. The plaintiff was then living at Sefton and he used to come to stay with the deceased in her rented unit at Kings Cross. 8 On 23 June 1976 the deceased ceased employment with Evercraft Manufacturing Pty Limited. In that year the plaintiff sold the Sefton property and purchased 2/59 Tebbutt Street, Leichhardt. The deceased moved in with the plaintiff one month thereafter. 9 On 12 July 1977 the plaintiff purchased the unit 5/9-11 Waltham Street, Coogee, for $30,500 in his name. The solicitor for the plaintiff was a Mr Nicholas Eddy. 10 It was on 4 July 1979 that the deceased and the plaintiff executed their two wills to which I have referred. 11 On 6 February 1980 the plaintiff transferred a one half interest as tenant in common in unit 5/9-11 Waltham Street to the deceased for an expressed consideration of $27,500. The solicitor for the plaintiff was Mr Nicholas Eddy and the solicitor for the plaintiff and the deceased as purchasers was Mr K.J. Wherry. 12 On 8 October 1987 the plaintiff purchased Lot 79 Creals Court, Currumbin Waters, Queensland, for a sum which does not appear in the evidence and apparently the purchase was in his name. That was sold in February 1989 for an unspecified sum. 13 On 5 May 1989 the plaintiff purchased unit 4/158 Beach Street, Coogee, for $167,000. The solicitor for the plaintiff was Mr Steven Prassas of Comino, Prassas and Clark. 14 On 11 September 1989 the plaintiff transferred a one half interest as tenant in common in that property to the deceased for $1. The solicitor acting for all the parties was Mr Prassas and stamp duty of $1,412.50 was paid by the plaintiff in respect of that transfer. The parties had, of course, moved in to reside in Beach Street as soon as it was purchased. 15 On 20 September 1989 there was a sale of the jointly owned property at Waltham Street, Coogee and no doubt the plaintiff received the proceeds. 16 In mid-1990 the plaintiff alleges that there were certain conversations between him and the deceased about ownership and I will return to those later. 17 In November 1990 a property 95A Avoca Street, Randwick, was purchased by the plaintiff and the deceased as joint tenants. This they moved into as their new residence. At this time one sees that there are, in fact, two properties in their joint names. 18 A short time later, indeed, on 10 December 1990, the deceased transferred her half interest in the Beach Street property to the plaintiff for a consideration of $1. The solicitor acting for both parties was Mrs Hilderbrand and stamp duty of $1,290 was paid by the plaintiff. 19 In 1992 there were some visits by solicitor Mrs Hilderbrand to the Avoca Street property and in February of that year she drew some wills which apparently were never executed. 20 On 15 April 1993 the plaintiff sold the Beach Street, Coogee, property. On 24 June 1993 13 Wood Street, Randwick, was purchased for $250,000 in the joint names of the plaintiff and the deceased as tenants in common. That was with the assistance of a $50,000 advance from the CBA to the plaintiff secured by mortgage to both the deceased and the plaintiff over 95A Avoca Street, Randwick. Mrs Hilderbrand acted for the plaintiff and the deceased. 21 On 11 September 1993 the jointly owned property at 95A Avoca Street, Randwick, was sold for $210,000. The proceeds were paid to the plaintiff and $51,353.63 was paid to the CBA Bank to discharge liability for the bridging finance. 22 On 16 May 1998 the deceased died at age 76. The plaintiff was then 74. 23 In March 1999 the plaintiff instructed Antonys Lawyers in relation to an application for probate/administration of the estate of the deceased. 24 On 24 January 2000 there was a conversation between the solicitor Ms Mary Antony and Mr John Koderitsch, son of the deceased and a consent to administration being granted to the plaintiff was forwarded to the son for him to sign. Ms Antony then proceeded with the preparation of an application for Letters of Administration. The consent to that administration was signed by the son of the deceased on 14 February 2000. That application, no doubt, would have proceeded except for the fact that on 23 February 2000 the son handed to Ms Antony a copy of the will of the deceased dated 4 July 1979. 25 On 26 May 2000 the summons was filed, and a grant was made to the defendant in respect of the will of 4 July 1979 on 6 July 2000. 26 It is apparent from what I have recited and the clear evidence before me was that the funds for the last purchase all came from the plaintiff. They consisted of the cash from the sale of his property and also the bridging finance loan. The sale of the second property enabled the parties to pay out the bridging finance loan. 27 It is true that in normal circumstances there would be a resulting trust as there is no presumption of advancement in respect of de facto couples. (See Calverley v Green (1984) 155 CLR 242.) However, the resulting trust is only a presumption and is easily rebutted. This was referred to by Upjohn LJ in Vandervell v Inland Revenue Commissioners (1967) 2 AC 291 at 312 in these terms:- "But if, as in this case (a common form share transfer), the document is silent, then there is said to arise a resulting trust in favour of A. But this is only a presumption and is easily rebutted. All the relevant facts and circumstances can be considered in order to ascertain A's intentions with a view to rebutting this presumption.