Paul Verteouris v Kerry Verteouris [2014] NSWSC 339

Supreme Court New South Wales

Medium Neutral Citation: Paul Verteouris v Kerry Verteouris [2014] NSWSC 339 Hearing dates: 10 and 11 February 2014 Decision date: 27 March 2014 Jurisdiction: Equity Division Before: Darke J Decision: Deed held to be valid and enforceable in accordance with its terms. Notice of demand not effective to make loan moneys repayable. Catchwords: CONTRACT - deed - sham - whether requisite intention shown - shamming intent not established

CONTRACT - contract of loan - loan repayable upon demand provided not less than six months notice of requirement for repayment given - notice not given in accordance with contract - notice ineffective Cases Cited: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lewis v Condon; Condon v Lewis [2013] NSWCA 204 Category: Principal judgment Parties: Paul Verteouris (first plaintiff) Helen Verteouris (second plaintiff) Peter Verteouris (third plaintiff) Bill Verteouris (fourth plaintiff)

Kerry Verteouris (defendant) Representation: Counsel: Mr M Lawson (plaintiffs) Mr G Segal (defendant) Solicitors: Redmond Hale Simpson (plaintiffs) GA Lawyers (defendant) File Number(s): 2012/308927 Publication restriction: Nil

Judgment

Introduction 1The first and second plaintiffs are the parents of the late Dennis Verteouris ("the deceased") who died on 28 April 2012 at the age of 42. The third and fourth plaintiffs are the brothers of the deceased. The defendant is his widow, and legal personal representative of his estate. The deceased died intestate. There were no children of the marriage. 2By an Amended Statement of Claim, the plaintiffs seek declaratory relief in respect of certain obligations said to have been owed by the deceased to his parents, and later to the third and fourth plaintiffs as assignees from the parents. The obligations are claimed to have arisen in the course of various dealings concerning a property in Rowley St, Brighton-le-Sands ("the Property"). The Property comprises the bulk of the deceased's estate. In July 2012, in the defendant's application for a grant of administration, she estimated that the Property was worth $1,200,000. 3The plaintiffs contend that the defendant, as the legal personal representative of the deceased, is subject to an obligation to pay, upon demand, a sum equivalent to two thirds of the value of the Property. The plaintiffs claim, moreover, that performance of the obligation is secured by a charge over the Property. A further claim is made, in the alternative, that the deceased held a portion of the Property on resulting trust for the first and second plaintiffs, such portion being commensurate with either the large financial contribution which the first and second plaintiffs made to the acquisition of the Property, or else 66.66%. 4The defendant disputes that there is any obligation to pay such a sum, and further denies that the Property is held on resulting trust. The defendant claims that the Property forms part of her late husband's estate free of any right or interest asserted by the plaintiffs.