Kordovoulos & Anor v Dixon-Hughes & Ors [2021] NSWSC 722

Kordovoulos & Anor v Dixon-Hughes & Ors [2021] NSWSC 722

The plaintiffs bore the onus of proving that the sale proceeds were not a gift and that the facts gave rise to the pleaded trust or restitutionary relief. On the evidence, despite concerns about the First Defendant and the plaintiffs' vulnerability, the Court was satisfied that the plaintiffs intended in June 2018 that the First Defendant have and use the proceeds of sale, that the 13 June 2018 authority was signed after discussion and read to them, and that the plaintiffs later regretted or changed their mind. The arrangements did not give rise to a trust, and unjust enrichment had no operation absent a specific pleaded restitutionary case. There was also no or virtually no evidence...

Jurisdiction
Australia
Judgment Date
18 June 2021
Procedural Posture
Equity Proceedings Concerning Whether Sale Proceeds Were a Gift, Loan, or Held on Trust, With Alternative Unjust Enrichment Relief / Principal Judgment After Final Hearing
Outcome
The plaintiffs failed in their case against the First, Second and Third Defendants; the claim against the Fourth Defendant had been settled before the hearing.
Legal Topics
['resulting Trusts' 'constructive Trusts' 'presumption of Gift' 'onus of Proof' 'unjust Enrichment' 'pleadings' 'briginshaw Standard']
['equity' 'trusts and Trustees' 'restitution' 'civil Procedure' 'evidence'] ['resulting Trusts' 'constructive Trusts' 'presumption of Gift' 'onus of Proof' 'unjust Enrichment' 'pleadings' 'briginshaw Standard']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Whether Sale Proceeds Were a Gift, Loan, or Held on Trust, With Alternative Unjust Enrichment Relief / Principal Judgment After Final Hearing

Legal Issues

  1. 1 ['Whether the proceeds of sale of the Canley Vale Property paid into the ANZ Home loan account were a gift, a loan, or monies to be held on trust for the plaintiffs.' 'Whether the plaintiffs had established a constructive trust or resulting trust over the sale proceeds.' 'Whether unjust enrichment had any operation in the absence of a specific pleaded restitutionary cause of action or vitiating factor.' 'Whether the Second and Third Defendants were liable where there was no pleaded Barnes v Addy case and no or virtually no evidence of knowledge of the circumstances of the sale proceeds.']

Ratio Decidendi

The plaintiffs bore the onus of proving that the sale proceeds were not a gift and that the facts gave rise to the pleaded trust or restitutionary relief. On the evidence, despite concerns about the First Defendant and the plaintiffs' vulnerability, the Court was satisfied that the plaintiffs intended in June 2018 that the First Defendant have and use the proceeds of sale, that the 13 June 2018 authority was signed after discussion and read to them, and that the plaintiffs later regretted or changed their mind. The arrangements did not give rise to a trust, and unjust enrichment had no operation absent a specific pleaded restitutionary case. There was also no or virtually no evidence...

Court Disposition

The plaintiffs failed in their case against the First, Second and Third Defendants; the claim against the Fourth Defendant had been settled before the hearing.

Orders

  • ['The plaintiffs fail in their case against the First, Second and Third Defendants.' 'The parties are to prepare short minutes to reflect the reasons, with any issue concerning the form of orders or costs to be determined if there is disagreement.']