Nicolitsa Togias v State of New South Wales [2021] NSWSC 1588

Nicolitsa Togias v State of New South Wales [2021] NSWSC 1588

While the plaintiff made no direct financial contributions to the acquisition of the properties, she made substantial indirect contributions through homemaking, child-rearing, and significant unpaid work in and for the Bio-Form business. No common intention of beneficial sharing could be established, but equity regards her indirect contributions as sufficient for a remedial constructive trust given it would be unconscionable to deny her an equitable share. The court, being unable to precisely quantify contributions, applied the maxim 'equity is equality' and determined that beneficial ownership should be shared equally between the parties.

Jurisdiction
Australia
Judgment Date
10 December 2021
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Declaration of a remedial constructive trust; beneficial interest to be shared equally.
Legal Topics
['constructive Trusts' 'family and Domestic Relationships' 'remedial Constructive Trust' 'baumgartner Trust' 'beneficial Interest in Real Property']
['equity'] ['constructive Trusts' 'family and Domestic Relationships' 'remedial Constructive Trust' 'baumgartner Trust' 'beneficial Interest in Real Property']

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether the plaintiff has a beneficial interest in two real properties under a constructive trust' "Whether the plaintiff's indirect contributions (homemaking, domestic duties, unpaid business work) entitle her to a beneficial equitable share despite no direct financial contribution" "Whether the forfeiture of legal title due to proceeds of crime affects the plaintiff's equity claim"]

Ratio Decidendi

While the plaintiff made no direct financial contributions to the acquisition of the properties, she made substantial indirect contributions through homemaking, child-rearing, and significant unpaid work in and for the Bio-Form business. No common intention of beneficial sharing could be established, but equity regards her indirect contributions as sufficient for a remedial constructive trust given it would be unconscionable to deny her an equitable share. The court, being unable to precisely quantify contributions, applied the maxim 'equity is equality' and determined that beneficial ownership should be shared equally between the parties.

Court Disposition

Declaration of a remedial constructive trust; beneficial interest to be shared equally.

Orders

  • ['A declaration of remedial constructive trust is made over the Glenwood and Seven Hills properties, with beneficial interest to be shared equally between the plaintiff (Nicolitsa Togias) and those holding under Mr Subakti/the Crown.' 'Orders regarding exact apportionment, payment of rates, discharge of any...