Ignjatovic v Goreski [2017] NSWSC 1677

Ignjatovic v Goreski [2017] NSWSC 1677

The informal family arrangement by which the property was transferred to the first defendant was not contractual and did not confer on the plaintiff a lifetime right of residence. Applying the principles in Muschinski v Dodds, the arrangement was in effect a failed joint venture determinable on reasonable notice. The first defendant could not in good conscience sell the property without recognising the plaintiff's beneficial interest, but the plaintiff could not take the sale proceeds without allowing for the expenses and agreed allowances due to the first and second defendants. The appropriate equitable relief was to declare that the first defendant held the property on trust for the...

Jurisdiction
Australia
Judgment Date
17 November 2017
Procedural Posture
Equity Proceedings Concerning Competing Claims to Beneficial Ownership of Residential Land / Principal Ex Tempore Judgment After Hearing
Outcome
Declaration as to beneficial entitlements to land, with orders for sale of the property and distribution of the proceeds of sale.
Legal Topics
['joint Venture' 'breakdown of Family Arrangement' 'beneficial Ownership of Land' 'property Held on Trust' 'sale of Land' 'distribution of Proceeds of Sale']
['equity' 'property Law' 'trusts'] ['joint Venture' 'breakdown of Family Arrangement' 'beneficial Ownership of Land' 'property Held on Trust' 'sale of Land' 'distribution of Proceeds of Sale']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Competing Claims to Beneficial Ownership of Residential Land / Principal Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['What beneficial interests the plaintiff, first defendant and second defendant had in the property after the informal family arrangement for transfer of the property to the first defendant broke down.' 'Whether the plaintiff was entitled to remain in the property for life, or whether the arrangement was temporary or determinable on reasonable notice.' "What allowances or charges should be made in favour of the first and second defendants for expenses and the first defendant's involvement with the mortgage arrangement." 'Whether the property should be sold and how the sale proceeds should be distributed.']

Ratio Decidendi

The informal family arrangement by which the property was transferred to the first defendant was not contractual and did not confer on the plaintiff a lifetime right of residence. Applying the principles in Muschinski v Dodds, the arrangement was in effect a failed joint venture determinable on reasonable notice. The first defendant could not in good conscience sell the property without recognising the plaintiff's beneficial interest, but the plaintiff could not take the sale proceeds without allowing for the expenses and agreed allowances due to the first and second defendants. The appropriate equitable relief was to declare that the first defendant held the property on trust for the...

Court Disposition

Declaration as to beneficial entitlements to land, with orders for sale of the property and distribution of the proceeds of sale.

Orders

  • ['Declare that the first defendant holds on trust for the plaintiff, subject to charges in favour of himself and the second defendant, the property contained in Folio identifier A/340192.' 'Declare that the charges over the property comprise $51,296.00 in favour of the first defendant and $15,000.00 in favour of the...