Dimitrovski v Boland (No 2) [2025] NSWSC 17

Dimitrovski v Boland (No 2) [2025] NSWSC 17

The plaintiffs failed to prove, on the balance of probabilities and by objective outward manifestation, that a trust existed in favour of Ms Vasil over the Life Order Products Pty Ltd shares held by George Dimitrovski. The purported conversations and evidence were not accepted, with the court preferring the documentary and objective evidence, which was consistent with George holding the shares beneficially. Documents relied upon to suggest a trust (e.g. ASIC forms, minutes, bank statements) provided no compelling support, and any contradictory company record was explained as honest error. Therefore, there was no sufficient certainty of intention to create or settle a trust.

Parties
First Plaintiff: George Dimitrovski as Joint Administrator of the estate of Susan Vasil; Second Plaintiff: Nada Boceska as Joint Administrator of the estate of Susan Vasil; First Defendant: Brian Boland; Second Defendant: Helen Boland; Third Defendant: Avid Business Pty Ltd
Jurisdiction
Australia
Judgment Date
06 February 2025
Procedural Posture
Equity Trusts / Judgment on Separate Question as to Trust Over Shares
Outcome
Plaintiffs have not established that First Plaintiff held subject shares on trust for his late sister; proceedings to be dismissed with costs, subject to further submissions.
Legal Topics
Express Trusts, Intention to Create Trust, Question of Fact, Standing, Company Shares
Equity Trusts Express Trusts Intention to Create Trust Question of Fact Standing Company Shares

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Parties

George Dimitrovski as Joint Administrator of the estate of Susan Vasil

First Plaintiff

Nada Boceska as Joint Administrator of the estate of Susan Vasil

Second Plaintiff

Brian Boland

First Defendant

Helen Boland

Second Defendant

Avid Business Pty Ltd

Third Defendant

Procedural Posture

Equity Trusts / Judgment on Separate Question as to Trust Over Shares

Legal Issues

  1. 1 Whether the First Plaintiff held shares in Life Order Products Pty Ltd on trust for Ms Susan Vasil
  2. 2 Whether there was an intention to create an express trust over the subject shares

Ratio Decidendi

The plaintiffs failed to prove, on the balance of probabilities and by objective outward manifestation, that a trust existed in favour of Ms Vasil over the Life Order Products Pty Ltd shares held by George Dimitrovski. The purported conversations and evidence were not accepted, with the court preferring the documentary and objective evidence, which was consistent with George holding the shares beneficially. Documents relied upon to suggest a trust (e.g. ASIC forms, minutes, bank statements) provided no compelling support, and any contradictory company record was explained as honest error. Therefore, there was no sufficient certainty of intention to create or settle a trust.

Court Disposition

Plaintiffs have not established that First Plaintiff held subject shares on trust for his late sister; proceedings to be dismissed with costs, subject to further submissions.

Orders

  • The answer to the separate question is: 'The plaintiffs are not entitled to the declaration sought in paragraph 4A of the fourth further amended statement of claim.'
  • The proceedings should be dismissed with costs, subject to further hearing on costs and indemnity issues.