Menka Tasevska v Vlado (Larry) Tasevski & Anor [2011] NSWSC 174

Menka Tasevska v Vlado (Larry) Tasevski & Anor [2011] NSWSC 174

The plaintiff failed to prove that the defendants promised that she and Dusan would be placed on title, that the 26 May 1993 agreement was unjust, or that the alleged $75,000 retirement contribution and $30,000 furniture contribution were made. However, the evidence established that $100,643.12 from the sale of the Shellharbour Road property was applied to discharge the Westpac mortgage connected with the Fig Tree Property, and that denying recognition of that contribution would give the defendants an unconscionable windfall after the family living arrangement broke down without attributable blame. A constructive trust or enforced residence would exceed the minimum equity and risk...

Jurisdiction
Australia
Judgment Date
17 March 2011
Procedural Posture
Equity Proceedings Concerning Equitable Charges, Equitable Lien, Constructive Trust and Related Relief / Principal Judgment
Outcome
Plaintiff granted an equitable lien over the Fig Tree Property for $85,697.46 plus prejudgment interest from 20 April 2009; costs reserved for further hearing.
Legal Topics
['equitable Lien' 'constructive Trust' 'equitable Charges' 'contracts Review Act' 'unconscionable Conduct' 'equitable Estoppel' 'family Property Arrangements' 'non Financial Contributions' 'attributable Blame' 'prejudgment Interest']
['equity' 'property Law' 'contracts'] ['equitable Lien' 'constructive Trust' 'equitable Charges' 'contracts Review Act' 'unconscionable Conduct' 'equitable Estoppel' 'family Property Arrangements' 'non Financial Contributions' 'attributable Blame' 'prejudgment Interest']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Equitable Charges, Equitable Lien, Constructive Trust and Related Relief / Principal Judgment

Legal Issues

  1. 1 ['Whether the 26 May 1993 agreement was an unjust contract under the Contracts Review Act 1980 (NSW).' 'Whether the plaintiff and her late husband contributed money on the basis that they would be registered as co-owners of the Fig Tree Property.' "Whether the defendants would receive an unconscionable windfall if the plaintiff's contribution was not recognised." 'Whether the breakdown in the family relationship occurred with attributable blame sufficient to deny equitable relief.' 'Whether relief should be granted by constructive trust, proprietary estoppel, equitable charge or equitable lien.' "How the plaintiff's contribution and any adjustments for domestic contributions, groceries, care, accommodation and life expectancy should be valued."]

Ratio Decidendi

The plaintiff failed to prove that the defendants promised that she and Dusan would be placed on title, that the 26 May 1993 agreement was unjust, or that the alleged $75,000 retirement contribution and $30,000 furniture contribution were made. However, the evidence established that $100,643.12 from the sale of the Shellharbour Road property was applied to discharge the Westpac mortgage connected with the Fig Tree Property, and that denying recognition of that contribution would give the defendants an unconscionable windfall after the family living arrangement broke down without attributable blame. A constructive trust or enforced residence would exceed the minimum equity and risk...

Court Disposition

Plaintiff granted an equitable lien over the Fig Tree Property for $85,697.46 plus prejudgment interest from 20 April 2009; costs reserved for further hearing.

Orders

  • ['The plaintiff is to hold an equitable lien over the Fig Tree Property for the amount of $85,697.46 plus interest accrued from 20 April 2009 at the prejudgement interest rate.' 'The parties will be heard on costs.']