Gertsch v Atsas & Ors [1999] NSWSC 898

Gertsch v Atsas & Ors [1999] NSWSC 898

Neither defendant was shown to have sufficient knowledge of the will's invalidity to become a constructive trustee; both received and spent their legacies in good faith. However, both were unjustly enriched to a residual extent after allowance for expenditures, with the defence of change of position applying pro tanto. Orders for partial repayment and costs followed.

Jurisdiction
Australia
Judgment Date
01 October 1999
Procedural Posture
Civil / Final Judgment
Outcome
Partial restitution and partial costs awarded against both defendants; no constructive trust established; equitable charge over property available if payment not made.
Legal Topics
['intestacy' 'forged Will' 'constructive Trust' 'knowing Receipt' 'tracing' 'subrogation' 'unjust Enrichment' 'change of Position' 'costs']
['equity' 'succession' 'trusts' 'restitution'] ['intestacy' 'forged Will' 'constructive Trust' 'knowing Receipt' 'tracing' 'subrogation' 'unjust Enrichment' 'change of Position' 'costs']

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Whether the second and third defendants are liable to repay pecuniary legacies received under a forged will.' 'Whether the defendants received trust property with sufficient knowledge to constitute them constructive trustees.' 'Whether the defence of change of position is available to the defendants and, if so, to what extent.']

Ratio Decidendi

Neither defendant was shown to have sufficient knowledge of the will's invalidity to become a constructive trustee; both received and spent their legacies in good faith. However, both were unjustly enriched to a residual extent after allowance for expenditures, with the defence of change of position applying pro tanto. Orders for partial repayment and costs followed.

Court Disposition

Partial restitution and partial costs awarded against both defendants; no constructive trust established; equitable charge over property available if payment not made.

Orders

  • ["Second defendant to pay the plaintiff $82,152.00 and one-third of plaintiff's costs of the claim against him." "Third defendant to pay the plaintiff $18,826.50 and one-third of plaintiff's costs of the claim against her." 'Plaintiff has liberty to apply for charge on property at 20 Hart Street, Balmain for...