Cetojevic v Cetojevic [2006] NSWSC 431

New South Wales Supreme Court

CITATION : Cetojevic v Cetojevic [2006] NSWSC 431

HEARING DATE(S) : 24 & 26 April 2006

JUDGMENT DATE : 26 April 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 04/26/2006

DECISION : Property not held on resulting trust. Property held on constructive trust. If decision on constructive trust were wrong, order designating one-third of proceeds of sale of property as notional estate and awarding it to deceased's widow would have been made.

CATCHWORDS : SUCCESSION – FAMILY PROVISION AND MAINTENANCE – extension of time – designation of notional estate – failure by deceased to sever joint tenancy – whether valuable consideration given for failure to sever the joint tenancy – whether section 28(5)(c) satisfied when proceeds of sale of property which had been held as joint tenants is held by solicitors on trust to abide the result of proceedings – "other special circumstances" within section 28(5)(d) – TRUSTS – resulting trusts arising from contribution to purchase price – constructive trust arising from joint enterprise which terminates prematurely without fault on anyone's part – CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – caveats against dealings – caveat claiming an interest under the Family Provision Act

Adoption Act 2000 LEGISLATION CITED : Family Provision Act 1982 Wills Probate and Administration Act 1898

Application of O and P [2005] NSWSC 1297 Baumgartner v Baumgartner (1987) 164 CLR 137 Bethian Pty Ltd v Green (1977) 3 Fam LR 11,579 Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060; (2002) 12 BPR 22,421 Calverly v Green (1984) 155 CLR 242 Cameron v Hills, (29 October 1989, Needham J, unreported) Charles v Charles, (Young J, 25 March 1988, unreported) Dare v Furness (1997) 44 NSWLR 493 Girando v Girando (Templeman J, Supreme Court of WA, 27 August 1997, unreported) Irvine v Scaysbrook [2005] NSWSC 565 CASES CITED : Lewis v Lewis [2001] NSWSC 321 Porte v Couso (McLelland J Supreme Court of NSW, 16 March 1992, unreported) Quek v Beggs (1990) 5 BPR 11,761 Salvo v New Tel Limited [2005] NSWCA 281 Shepherd v Doolan [2005] NSWSC 42 Short v Crawley [2005] NSWSC 928 Stojcesvska & Tosevski v Tosevski [2001] NSWSC 274 Vella v Mineo [2005] NSWSC 1149 Wade v Harding (1987) 11 NSWLR 551 Warren v McKnight (1996) 40 NSWLR 390 West v Mead [2003] NSWSC 161