Nadilo v Souris [2019] NSWSC 108

Nadilo v Souris [2019] NSWSC 108

Plaintiffs proved by civil standard that they provided $8,000 and $5,000, respectively, to the purchase price of Bilgola in 1978; such contributions were not gifts or loans but contributions to purchase price, giving rise to a resulting trust in their favour. No binding contract arose as the necessary intention for legal relations was not established and, in any event, s 54A Conveyancing Act rendered any such oral contract unenforceable. The resulting trust interests were traced into the acquisition of Kariong. Plaintiffs are entitled to a quantified proportion of proceeds from the sale of Kariong as determined by their contributions.

Parties
First Plaintiff: Matthew Paul Nadilo; Second Plaintiff: Deborah Nadilo; Third Plaintiff: Gloria Lakaev; Fourth Plaintiff: Ilia Lakaev; Defendant: Lorraine Souris
Jurisdiction
Australia
Judgment Date
13 February 2019
Procedural Posture
Principal Judgment / Final Reasons With Directions for Draft Orders
Outcome
Declarations as to resulting trust entitlements and directions for final orders disposing of litigation, including submissions on pre-judgment interest and costs.
Legal Topics
Resulting Trusts, Family Agreements, Presumed Resulting Trust, Oral Contracts, Contract to Make a Will, Statute of Frauds, Tracing of Trust Funds, Limitation Act, Laches
Equity Trusts Contracts Resulting Trusts Family Agreements Presumed Resulting Trust Oral Contracts Contract to Make a Will +4 more

Case Brief

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Parties

Matthew Paul Nadilo

First Plaintiff

Deborah Nadilo

Second Plaintiff

Gloria Lakaev

Third Plaintiff

Ilia Lakaev

Fourth Plaintiff

Lorraine Souris

Defendant

Procedural Posture

Principal Judgment / Final Reasons With Directions for Draft Orders

Legal Issues

  1. 1 Whether plaintiffs contributed cash to purchase of Bilgola property in 1978
  2. 2 Legal character of the plaintiffs' cash contributions (gift, loan, or contribution to purchase price)
  3. 3 Whether there was an enforceable oral contract to make a will

Ratio Decidendi

Plaintiffs proved by civil standard that they provided $8,000 and $5,000, respectively, to the purchase price of Bilgola in 1978; such contributions were not gifts or loans but contributions to purchase price, giving rise to a resulting trust in their favour. No binding contract arose as the necessary intention for legal relations was not established and, in any event, s 54A Conveyancing Act rendered any such oral contract unenforceable. The resulting trust interests were traced into the acquisition of Kariong. Plaintiffs are entitled to a quantified proportion of proceeds from the sale of Kariong as determined by their contributions.

Court Disposition

Declarations as to resulting trust entitlements and directions for final orders disposing of litigation, including submissions on pre-judgment interest and costs.

Orders

  • Direct the parties within 21 days to bring in final orders disposing of the litigation in accordance with the reasons, or, in default, such final orders and short submissions in support for resolution on the papers.
  • Order extends to submissions as to whether, and if so how much, pre-judgment interest is to be allowed in respect of the plaintiffs' entitlements to a share of proceeds of sale of Kariong.