Togias v NSW Trustee and Guardian [2021] NSWSC 573

Togias v NSW Trustee and Guardian [2021] NSWSC 573

The particulars sought by the Second Defendant were unnecessary for the conduct of the defence at this stage because they concerned quantification of the Plaintiff's ultimate interest, not material facts necessary to establish entitlement to a common interest constructive trust. The notices of motion were therefore dismissed, but the Plaintiff was required to amend the statement of claim to seek relief in a form consistent with Muschinski v Dodds, and interlocutory arrangements were made for sale of Seven Hills, preservation of Glenwood, and undertakings as to interest and occupation fee.

Jurisdiction
Australia
Judgment Date
21 May 2021
Procedural Posture
Equity Proceeding Concerning a Claimed Constructive Trust Over Real Property / Interlocutory Applications by the Second Defendant Seeking Particulars, Summary Dismissal, or Strike Out of the Statement of Claim
Outcome
The Second Defendant's two notices of motion were dismissed; directions and interlocutory orders were made, including undertakings by the Plaintiff concerning interest and any occupation fee.
Legal Topics
['pleading and Particulars' 'common Interest Constructive Trust' 'common Intention Constructive Trust' 'forfeited Property' 'interlocutory Orders' 'undertakings as to Interest and Occupation Fee']
['equity' 'civil Procedure' 'property Law' 'criminal Assets Recovery'] ['pleading and Particulars' 'common Interest Constructive Trust' 'common Intention Constructive Trust' 'forfeited Property' 'interlocutory Orders' 'undertakings as to Interest and Occupation Fee']

Case Brief

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Procedural Posture

Equity Proceeding Concerning a Claimed Constructive Trust Over Real Property / Interlocutory Applications by the Second Defendant Seeking Particulars, Summary Dismissal, or Strike Out of the Statement of Claim

Legal Issues

  1. 1 ['Whether the Plaintiff was required at this stage to provide detailed particulars quantifying alleged contributions to the acquisition and repayment of the Glenwood and Seven Hills properties.' "Whether the Plaintiff's pleaded claim to a constructive trust was liable to summary dismissal or strike out if the particulars sought were not provided." "What form of relief and interlocutory regime was appropriate pending determination of the Plaintiff's claimed interest in the properties." "Whether the Second Defendant should be restrained from selling the Glenwood property pending determination of the Plaintiff's claim, and on what undertakings."]

Ratio Decidendi

The particulars sought by the Second Defendant were unnecessary for the conduct of the defence at this stage because they concerned quantification of the Plaintiff's ultimate interest, not material facts necessary to establish entitlement to a common interest constructive trust. The notices of motion were therefore dismissed, but the Plaintiff was required to amend the statement of claim to seek relief in a form consistent with Muschinski v Dodds, and interlocutory arrangements were made for sale of Seven Hills, preservation of Glenwood, and undertakings as to interest and occupation fee.

Court Disposition

The Second Defendant's two notices of motion were dismissed; directions and interlocutory orders were made, including undertakings by the Plaintiff concerning interest and any occupation fee.

Orders

  • ['The Plaintiff is to file a further amended statement of claim by 4:00pm on 26 May 2021.' 'The Second Defendant is to file a defence to the further amended statement of claim within 14 days of being served.' "The Court noted the Plaintiff's agreement, without admissions and subject to her claim, that the Second...