Duic v Duic [2013] NSWCA 42

Duic v Duic [2013] NSWCA 42

The respondent's proprietary estoppel claim failed because, after the primary judge rejected the respondent's evidence in toto and found that he manufactured evidence, there was no evidence capable of proving that the respondent made improvements or forwent purchasing another property in reliance on the appellant's promises. The evidence of Mr Petch did not corroborate reliance, and the objective circumstances did not support an inference of reliance. The appeal was therefore allowed and the Property was ordered to be re-transferred to the appellant.

Jurisdiction
Australia
Judgment Date
01 March 2013
Procedural Posture
Appeal and Cross Appeal in Proceedings Concerning Alleged Proprietary Estoppel and Constructive Trust Over Land / Court of Appeal From Orders of Einstein J in Josip Duic V Emil Duic [2012] NSWSC 76
Outcome
Appeal allowed; cross-appeal dismissed; orders below set aside and declared void ab initio; declarations made that the appellant is and has been the beneficial owner of the Property, that the appellant has not held it on trust for the respondent, that the respondent presently holds it on trust for the appellant...
Legal Topics
['proprietary Estoppel' 'detrimental Reliance' 'constructive Trust' 'beneficial Ownership of Land' 'mesne Profits' 'costs']
['equity' 'property Law' 'trusts' 'civil Procedure'] ['proprietary Estoppel' 'detrimental Reliance' 'constructive Trust' 'beneficial Ownership of Land' 'mesne Profits' 'costs']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in Proceedings Concerning Alleged Proprietary Estoppel and Constructive Trust Over Land / Court of Appeal From Orders of Einstein J in Josip Duic V Emil Duic [2012] NSWSC 76

Legal Issues

  1. 1 ["Whether the respondent changed his position in reliance on the appellant's promises so as to make it unconscionable for the appellant to resile from them." 'If proprietary estoppel or constructive trust was established, what remedy was appropriate.' 'Whether the orders made below transferring the property to the respondent should stand.']

Ratio Decidendi

The respondent's proprietary estoppel claim failed because, after the primary judge rejected the respondent's evidence in toto and found that he manufactured evidence, there was no evidence capable of proving that the respondent made improvements or forwent purchasing another property in reliance on the appellant's promises. The evidence of Mr Petch did not corroborate reliance, and the objective circumstances did not support an inference of reliance. The appeal was therefore allowed and the Property was ordered to be re-transferred to the appellant.

Court Disposition

Appeal allowed; cross-appeal dismissed; orders below set aside and declared void ab initio; declarations made that the appellant is and has been the beneficial owner of the Property, that the appellant has not held it on trust for the respondent, that the respondent presently holds it on trust for the appellant...

Orders

  • ['The appellant has at all times since 2 April 1975 been the beneficial owner of land known as 2A Mellor Street, West Ryde, 2114 being the whole of the land comprised in folio identifier B/396928.' 'The appellant has not at any time held the Property on trust for the respondent.' 'The respondent presently holds the...