Keremelevski v Keremelevski [2008] NSWSC 1290

Keremelevski v Keremelevski [2008] NSWSC 1290

The parents made a valid gift of the house property to William and Sonja: they were mentally acute, received and understood advice in Macedonian from a solicitor acting only for them, and intended to transfer ownership immediately. No promise was proved that the defendants would care for the parents in the house property until their deaths, and no purpose or intention for the transfer failed. There was no unconscionable conduct, no basis for a constructive or resulting trust, and no basis for relief under the Contracts Review Act 1980. The bank account moneys were also gifted to Zivko, so no trust or account arose.

Jurisdiction
Australia
Judgment Date
04 December 2008
Procedural Posture
Equity Proceedings Seeking Declaration of Constructive Trust or Resulting Trust, an Account, and Relief Under the Contracts Review Act 1980 / Principal Judgment After Hearing
Outcome
Plaintiff's claims dismissed.
Legal Topics
['constructive Trusts' 'resulting Trusts' 'unconscionable Conduct' 'gifts of Real Property' 'power of Attorney' 'bank Accounts' 'contracts Review Act 1980']
['equity' 'trusts' 'contracts Review'] ['constructive Trusts' 'resulting Trusts' 'unconscionable Conduct' 'gifts of Real Property' 'power of Attorney' 'bank Accounts' 'contracts Review Act 1980']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Declaration of Constructive Trust or Resulting Trust, an Account, and Relief Under the Contracts Review Act 1980 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the transfer of 86 Union Street, Erskineville to William Keremelevski and Sonja Keremelevski was procured by overreaching or unconscionable conduct so as to give rise to a constructive trust.' 'Whether the parents transferred the house property subject to an agreement or common intention that they could reside there and be cared for until death.' 'Whether a resulting trust arose because a purpose or intention for the transfer failed.' 'Whether the transfer should be set aside under the Contracts Review Act 1980.' "Whether moneys removed from the parents' bank accounts by Zivko Keremelevski were held on trust or were gifted to him."]

Ratio Decidendi

The parents made a valid gift of the house property to William and Sonja: they were mentally acute, received and understood advice in Macedonian from a solicitor acting only for them, and intended to transfer ownership immediately. No promise was proved that the defendants would care for the parents in the house property until their deaths, and no purpose or intention for the transfer failed. There was no unconscionable conduct, no basis for a constructive or resulting trust, and no basis for relief under the Contracts Review Act 1980. The bank account moneys were also gifted to Zivko, so no trust or account arose.

Court Disposition

Plaintiff's claims dismissed.

Orders

  • ['Claim for declaration of constructive trust dismissed.' 'Claim for declaration of resulting trust dismissed.' 'Claim for relief under the Contracts Review Act 1980 dismissed.' 'Claim for a declaration of trust and an account concerning the bank account moneys dismissed.']