Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336

Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336

Ned Bikic did not establish, on the evidence, a common intention (express or implied) that Cadigal Avenue was held on trust for him alone; his financial contributions and circumstances were consistent with equal co-ownership. Accordingly, Bijkerk Investments is entitled to relief for sale under s 66G of the Conveyancing Act 1919 (NSW), and Roy Bijkerk is entitled to a declaration that Ned Bikic is liable to contribute to the joint judgment debt. The cross-claim for a trust or estoppel fails.

Parties
First Plaintiff, First Cross Defendant: Bijkerk Investments Pty Ltd; Second Plaintiff, Second Cross Defendant: Roy Anthony Bijkerk; Defendant, Cross Claimant: Ned Bikic
Jurisdiction
Australia
Judgment Date
01 October 2020
Procedural Posture
Equity Real Property List / Principal Judgment
Outcome
Orders for sale and declaratory relief to be finalised; cross-claim dismissed. Directions for parties to supply minutes of order and submissions and further hearing on costs if not agreed.
Legal Topics
Contribution in Equity, Co Ownership and Sale, Constructive Trusts, Express Trusts, Proprietary Estoppel
Equity Property Law Contribution in Equity Co Ownership and Sale Constructive Trusts Express Trusts Proprietary Estoppel

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Parties

Bijkerk Investments Pty Ltd

First Plaintiff, First Cross Defendant

Roy Anthony Bijkerk

Second Plaintiff, Second Cross Defendant

Ned Bikic

Defendant, Cross Claimant

Procedural Posture

Equity Real Property List / Principal Judgment

Legal Issues

  1. 1 Whether the defendant is entitled to declaratory relief that another debtor is liable to contribution for an unpaid judgment debt
  2. 2 Whether Bijkerk Investments Pty Ltd is entitled to an order for sale of co-owned property under s 66G of the Conveyancing Act 1919 (NSW)
  3. 3 Whether the Cadigal Avenue property is held on express or constructive trust for the defendant Ned Bikic

Ratio Decidendi

Ned Bikic did not establish, on the evidence, a common intention (express or implied) that Cadigal Avenue was held on trust for him alone; his financial contributions and circumstances were consistent with equal co-ownership. Accordingly, Bijkerk Investments is entitled to relief for sale under s 66G of the Conveyancing Act 1919 (NSW), and Roy Bijkerk is entitled to a declaration that Ned Bikic is liable to contribute to the joint judgment debt. The cross-claim for a trust or estoppel fails.

Court Disposition

Orders for sale and declaratory relief to be finalised; cross-claim dismissed. Directions for parties to supply minutes of order and submissions and further hearing on costs if not agreed.

Orders

  • Direct the parties to supply short minutes of order as agreed, or orders sought by them and submissions, by 12 October 2020.
  • List the proceedings for directions at 9.30am on 14 October 2020.