Spink v Flourentzou [2019] NSWSC 256

Supreme Court New South Wales

Medium Neutral Citation: Spink v Flourentzou [2019] NSWSC 256 Hearing dates: 3-5 December 2018 Date of orders: 14 March 2019 Decision date: 14 March 2019 Jurisdiction: Equity Before: Robb J Decision: (1) The plaintiff is entitled to be repaid by the defendants the amounts of $147,000 and $18,314.26, plus interest as set out at [323] of these reasons, secured by an equitable charge over the property described as the Casula property.

(2) The plaintiff is entitled to an order that the defendants pay her costs of the proceedings.

(3) Direct the parties to submit draft short minutes of order, consistent with [323]-[326] of these reasons, within 14 days.

(4) Direct the plaintiff, if she wishes to make an application for a special costs order, to submit suggested directions within 14 days in accordance with [327] of these reasons. Catchwords: EQUITY — Equitable charges and liens — Contribution to acquisition or improvement of another's property — Entitlement to be repaid contribution — Entitlement to equitable charge over property to secure repayment of contribution

EQUITY — Trusts and trustees — Constructive trusts — Family and domestic relationships — Failure of joint endeavour in acquisition or improvement of property, in circumstances of unconscionability and of no attributable blame — Whether the appropriate remedy involves return of contributions made or proportionate share of beneficial interest in property

EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement — Whether the presumption applies when a mother gives moneys to her daughter and son-in-law jointly Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Bennett v Horgan (NSWSC, 3 June 1994, unreported) Brown v Brown (1993) 31 NSWLR 582 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Chalmers v Pardoe [1963] 1 WLR 677 Hill v Hill [2005] NSWSC 863 Knight v Biss [1954] NZLR 55 Kriezis v Kriezis [2004] NSWSC 167 Malsbury v Malsbury [1982] 1 NSWLR 226 McKay v McKay [2008] NSWSC 177 Morris v Morris [1982] 1 NSWLR 61 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 Nolan v Nolan [2015] QCA 199 Plimmer v Wellington Corporation (1884) 9 App Cas 699 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Sirtes v Pryer [2005] NSWSC 1082 Tadrous v Tadrous [2010] NSWSC 1388 Watson v Foxman (1995) 49 NSWLR 315 West v Mead [2003] NSWSC 161 Z v Z (2005) 34 Fam LR 296 Texts Cited: Jacobs' Law of Trusts in Australia (8th edition) Category: Principal judgment Parties: Rickie Spink (Plaintiff) Mario Flourentzou (First Defendant) Dianne Flourentzou (Second Defendant) Representation: Counsel: P M Lane/M Cobb-Clark (Plaintiff) R Glasson/S McCarthy (Defendants)