Michaelopoulos v Pomering [2004] NSWSC 939

Procedural Posture

Equity Division Proceedings Seeking Relief Under the Property (relationships) Act 1984 and Equitable Relief Including Resulting Trust, Constructive Trust, Equitable Charge or Lien, Partnership Account and Contract Relief / Interlocutory Applications for Injunctive Relief, Maintenance or Withdrawal of Caveats, Release From an Undertaking, and Separate Trial or Dismissal Issues

Legal Issues

1. 1 ["Whether the Plaintiff established a serious issue to be tried concerning interests in properties registered in the Defendant's name by resulting trust, constructive trust, or relief under the Property (Relationships) Act 1984." 'Whether the balance of convenience favoured interlocutory injunctive relief preserving the status quo and the continued operation of caveats pending final hearing.' "Whether the Plaintiff's claim under the Property (Relationships) Act 1984 was doomed to failure because the alleged same sex relationship ended before amendments commencing on 1 July 1999 or because proceedings were brought outside the two year limitation period." 'Whether there should be a separate trial of whether the Property (Relationships) Act 1984 applied to the relationship between the Plaintiff and the Defendant.' 'Whether the Defendant should be released from an undertaking concerning 21-23 Cary Street, Marrickville, and whether orders should be made about rental moneys.']

Ratio Decidendi

The Plaintiff produced evidence which, if accepted, could support her asserted contributions and claims to interests under resulting or constructive trusts and relief under the Property (Relationships) Act 1984, so her claims were not doomed to failure. The disputed termination date of the relationship and any limitation issue under section 18 of the Act should be determined at final hearing, not summarily or by separate preliminary trial. The balance of convenience favoured preserving the status quo because the Defendant had not shown significant hardship and there was a legitimate inference that she intended further encumbrances of the subject properties. Accordingly, interlocutory...

Court Disposition

Plaintiff's interlocutory application substantially granted; First Defendant's amended notice of motion largely dismissed; proceedings stood over for directions.

Orders

• ['Orders made as sought in paragraphs 1 to 5 and paragraph 8 in the notice of motion filed by the Plaintiff on 11 July 2003.' "The balance of the Plaintiff's notice of motion filed on 11 July 2003 stood over generally, with liberty to restore on seven days' notice." 'Order made as sought in paragraph 10 in the...