Nadilo v Souris [2019] NSWSC 108

Supreme Court New South Wales

Medium Neutral Citation: Nadilo v Souris [2019] NSWSC 108 Hearing dates: 11, 12 and 13 February Decision date: 13 February 2019 Jurisdiction: Equity Before: Leeming JA Decision: 1. Direct the parties within 21 days of today to bring in final orders disposing of this litigation in accordance with these reasons, or, in default of agreement, such final orders for which each contends and short submissions in support of those orders, with a view to any dispute being resolved on the papers.

2. Note that order 1 above extends to submissions as to whether, and if so how much, pre-judgment interest is to be allowed in respect of the plaintiffs' entitlements to a share of the proceeds of sale of Kariong.

3. The orders referred to in 1 will also include such orders as to costs which are either agreed or contended for by the parties.

4. Exhibits to be returned. Catchwords: CONTRACT – plaintiffs alleged oral contract between family members as to contributions to acquisition of home in 1978 – whether amounts of cash provided – whether sufficient specificity of recall of precise terms of conversation – whether intention to create legal relations – even if agreement reached, not sufficient to give rise to contractually enforceable rights and liabilities

STATUTE OF FRAUDS – plaintiffs alleged oral contract to execute and not revoke will concerning home – whether Conveyancing Act 1919 (NSW) ss 23C or 54A applicable – s 23C inapplicable – s 54A applicable and fatal to contract claim – Horton v Jones applied

TRUSTS – presumed resulting trust – plaintiffs' claimed contribution to purchase price of home – whether cash provided – whether cash provided by way of gift, loan or contribution – whether home held on resulting trust reflecting plaintiffs' contributions – home sold and part of proceeds used to purchase smaller home – quantification of proportion of proceeds of sale which contributed to second purchase Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A Family Provision Act 1982 (NSW) Limitation Act 1969 (NSW) Succession Act 2007 (NSW) Cases Cited: Ashton v Pratt (No 2) [2012] NSWSC 3 Atilgan v Atilgan [1999] NSWSC 324 Australian Receivables Ltd v Tekitu Pty Ltd [2011] NSWSC 1306; 7 ASTLR 480 Brown v NSW Trustee and Guardian [2012] NSWCA 431 Celermaher Holdings Pty Ltd v Kopas [2011] NSWSC 40 Cohen v Cohen (1929) 42 CLR 91 at 96; [1929] HCA 15 Elias George Wakim v Karime Wakim [2017] NSWSC 1283 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Heperu Pty Ltd v Belle (2009) 76 NSWLR 230; [2009] NSWCA 252 Horton v Jones (1935) 53 CLR 475; [1935] HCA 7 Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2 Legal Services Commission v Bridges [2014] NSWCATOD 89 Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 Primeau v Granfield 180 F 847 (1910) Primeau v Granfield 184 F 480 (1911) Re Hallett's Estate (1880) 13 Ch D 696 Re Oatway [1903] 2 Ch 356 Seanez v McLaughlin [1999] NSWSC 9 Scott v Scott (1963) 109 CLR 649; [1963] HCA 65 The Federal Republic of Brazil v Durant International Corporation [2016] AC 297; [2015] UKPC 35 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: D Ong, Trusts Law in Australia (5th edition, Federation Press, 2018) Category: Principal judgment Parties: Matthew Paul Nadilo (First Plaintiff) Deborah Nadilo (Second Plaintiff) Gloria Lakaev (Third Plaintiff) Ilia Lakaev (Fourth Plaintiff) Lorraine Souris (Defendant) Representation: Counsel: