Talevski & Anor v Talevski & Anor [2007] NSWSC 945

New South Wales Supreme Court

CITATION : Talevski & Anor v Talevski & Anor [2007] NSWSC 945

HEARING DATE(S) : 20 - 22 August 2007 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 22 August 2007

DECISION : Plaintiff may elect to insist on conveyance subject to plaintiff offering to do equity, or to recoup contributions secured by equitable charge.

CATCHWORDS : EQUITY – Equitable estoppel – rights arising out of informal family arrangements – remedies – equitable charge – where defendant denies assumption that plaintiff would be registered proprietor – whether plaintiff entitled to recoup contribution rather than enforce equity to be registered.

Chalmers v Pardoe [1963] 3 All ER 552 Corin v Patton (1990) 190 CLR 540 CASES CITED : Giumelli v Giumelli (1999) 196 CLR 101 Morris v Morris [1982] 1 NSWLR 61 Muschinski v Dodds (1985) 160 CLR 583 Ogilvie v Ryan [1976] 2 NSWLR 504

Jovan Talevski (first plaintiff) PARTIES : Luba Talevski (second plaintiff) Peter Talevski (first defendant) Iskra Talevski (second defendant)

FILE NUMBER(S) : SC 6396/05

COUNSEL : Mr K W Andrews (plaintiffs) Mr M W Hadley (defendants)

SOLICITORS : McGrath, Dicembre & Co (plaintiffs) Shaw McDonald Solicitors (defndants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Wednesday, 22 August 2007

6396/05 Jovan Talevski & Anor v Peter Talevski & Anor JUDGMENT (ex tempore) 1 HIS HONOUR: Before the events in and about 1994 that give rise to this litigation, the plaintiffs Jovan Talevski and his wife Luba Talevski, who had migrated to Australia from Macedonia in the former Yugoslavia in 1970, were the registered proprietors of 3 Barrier Place, Illawong which they had purchased in 1998, subject to two mortgages to the National Australia Bank, which had originally secured advances totalling $50,000 to them and their son, the first defendant, Peter Talevski, who, with his wife, the second defendant, Iskra Talevski, lived with his parents in Barrier Place. Peter and Iskra – and I shall refer to the parties for the sake of convenience and without intending the slightest disrespect, by their first names – were themselves the registered proprietors of the property at 26 McPherson Place, Illawong, which they had acquired on 30 November 1992 for a price of $235,000, subjected to a mortgage initially securing advances to them of the same amount – that is, the whole purchase price of $235,000. They commenced construction of a house on McPherson Place in about April 1993, which is the date of the development approval, and that house was still in the course of erection, although largely complete, by November 1994. According to the documentary record, on 21 December 1994, Jovan and Luba completed the sale of Barrier Place to third parties for a price of $375,000; Peter and Iskra as vendors and Jovan and Luba as purchasers exchanged contracts for the sale and purchase of McPherson Place between them for $360,000; and Peter and Iskra delivered to the solicitor who acted for all parties on that transaction, one Dobrinka Zlatevska, an executed transfer of McPherson Place to Jovan and Luba for registration, which transfer acknowledged receipt of the consideration of $360,000. Thereafter, Jovan and Luba moved into McPherson Place where for some time they occupied the garage; later, when the house was completed, they were joined by Peter and Iskra who lived with them in McPherson Place until early 2004. All assumed, incorrectly, that the transfer of McPherson Place to Jovan and Luba had been registered; in fact, it had not been registered due to the non-production by the mortgagee of McPherson Place, the National Australia Bank, of the Certificate of Title, which was required to enable the transfer to be registered. Peter discovered in 2002 that the title had not been transferred, and took some steps with the solicitor, Ms Zlatevska, to endeavour to procure its registration, without success. Jovan discovered that the transfer had not been registered in late 2003; he believed that Peter had deceived him, and the relationship broke down. In early 2004, Peter and Iskra formed an intention not to transfer title to Jovan and Luba, and in or about April 2004, Jovan and Luba left McPherson Place. 2 Jovan and Luba bring these proceedings to compel a transfer to them of McPherson Place, asserting that they are beneficially entitled, pursuant to a completed Contract for Sale of that property to them. Peter and Iskra resist the claim, contending that Jovan and Luba were mere volunteers, and that equity will not perfect an incomplete gift. I accept that if Jovan and Luba were volunteers their claim must fail, because Peter and Iskra did not do all things necessary on their part to complete a gift of the property – in particular, they did not procure their mortgagee, the National Australia Bank, to produce the Certificate of Title to permit registration. In this respect, the case would be indistinguishable from Corin v Patton (1990) 190 CLR 540, which establishes that in practically identical circumstances a donor is not to be taken to have done all things necessary on his or her part to make a gift.