Menka Tasevska v Vlado

[2011] NSWSC 174

Supreme Court of NSW|2011-03-09|Before: Einstein J, Bryson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2011-03-09

Before

Einstein J, Bryson J

Catchwords

Wright, D. in "The Remedial Constructive Trust" Butterworths, 1998
Burns, Fiona R "The Equitable Lien Rediscovered: A Remedy for the 21st Century" (2002) 25(1) UNSWLJ 1

Source

Original judgment source is linked above.

Catchwords

Wright, D. in "The Remedial Constructive Trust" Butterworths, 1998Burns, Fiona R "The Equitable Lien Rediscovered: A Remedy for the 21st Century" (2002) 25(1) UNSWLJ 1

Judgment (39 paragraphs)

[1]

Pound R, "The Progress of the Law- Equity" (1920) 33 Harvard Law Review 420 Category: Principal judgment Parties: Menka Tasevska (plaintiff) Vlado (Larry) Tasevski (First defendant) Susan Tasevski (Second defendant) Representation: Counsel: Ms M. Tibbey (plaintiff) Mr G.M. McGrath (defendants) Solicitors: Creswick McCarthy (plaintiff) Leo & Morrison (defendants) File Number(s): 2009/291312

[2]

The proceedings before the Court 1These are unfortunate proceedings raising a contest between the plaintiff and her younger son and daughter in law. 2As is unfortunately not uncommon, parents and children make arrangements which at the time appear to favour all of their interests but ultimately those arrangements become the source of disagreements. The instant proceedings throw up a number of heavily contested parameters concerning the precise arrangements made by the current parties and allegations that neither the plaintiff nor her late husband had been properly advised either by her son or by her son's solicitors. [It has been agreed by the respective counsel that without disrespect, the principal witnesses will be referred to by their Christian names. The plaintiff's full name is Menka Tasevska [ Menka] . The name of the son who is sued is Vlado Tasevski [referred to by consensus as Larry]. Larry's wife's name is Susan].

[4]

The seemingly critical issues 4In 1989 Larry and Susan Tasevski purchased vacant land at [...] ("The Fig Tree Property") and subsequently developed it. Only Larry and Susan's names are on the title. 5The ultimate dispute is centred on the relative contributions of the plaintiff (Menka) and the defendants (Susan and Larry) to the Fig Tree Property and what these contributions now entitle them to. 6The plaintiff's case is broadly as follows: (1)The plaintiff and her late husband Dusan are of Macedonian background, with little schooling or commercial sophistication. Their English language skills were and are very limited. Dusan worked in the steelworks and Menka was a housewife, raising their two children in the home. (2)In the early 1990s the plaintiff and her husband Dusan owned their own home in Shellharbour Road, Warrawong. They had two adult sons, Vlado and Peter. Vlado lived with them prior to marriage and once married, in 1988, he and his wife lived with them too. In due course three children were born to Vlado and his wife Susan. (3)On or around 4 May 1990 Dusan took voluntary retirement from his 'unskilled' work at the Steelworks, where he worked and received a payment of $75,000.00. He and Menka placed this money at the disposal of Vlado and Susan to build a house for them all to live in. Vlado and Susan promised that Dusan and Menka could co-own the home and live there with them for the rest of their lives and that they would take care of them as needed. (4)Menka and Dusan sold their home for $115,000.00 in December 1992, placing the net proceeds, $110,000.00 at Vlado and Susan's disposal to use to build a house for them all to live in. Menka and Dusan were taken by Vlado to see a solicitor. (5)In May 1993, after moving in to the residence, the parties signed a Deed of Agreement which inaccurately set out the oral agreement that Menka and Dusan had with Vlade and Susan. Their agreement with Vlado and Susan was that their names would be placed on the title as co-owners of the property. The document stated that whilst they could continue to occupy for the rest of their lives, they "acknowledge that they have no interest in the property". It also misstated the sum contributed as being "$100,000.00". No interpreter was provided and the solicitor spoke in English. They were not encouraged to seek independent legal advice. The document was not properly explained to them. Because they did not read English they were not sure what they were signing but trusted their son. (6)Menka and Dusan also provided another $30,000 for the purchase of furniture for the home but Vlado and Susan spent this only on dining room furniture. (7)Menka, Dusan, Vlado, Susan and their children all moved into it. (8)When the plaintiff and her late husband realised that they were not on the title, they confronted Vlado and Susan, who refused to change the title particulars to reflect the fact that Dusan and Menka were co-owners. The request to put their names on the title was repeated many times over the years. Dusan was quite ill at that time and, although a solicitor's letter was written to Vlado and Susan dated 20 July 1999 seeking return of the $75,000 and $110,000 paid to enable building of the home, no further legal action was taken at that time. (9)The plaintiff has undertaken a great deal of childcare over the years, for her grandchildren, whilst the defendants both worked outside the home. She has also undertaken a great deal of cooking, cleaning of the house, gardening, shopping for the family and made payments towards household bills. (10)Dusan died in October 1999, leaving his estate to his executor and sole beneficiary, Menka. (11)In April 2008 Vlado demanded and Menka refused to give him her pension. After that, the relationship soured further. Menka's access to amenities of the home, including hot water, TV, stove, phone was restricted. In August 2008 Menka stopped contributing to the household bills. Vlado told her that he wanted her to leave the house and later assaulted her and threatened to kill her if she did not leave the house. In fear, she left hurriedly, telephoned her other son, saw the police and only returned to get some basic clothing. She has not lived there since. 7It is the plaintiff's case that the property is held on trust for her in whatever proportion the Court sees fit, or otherwise she is entitled to payment relating to an equitable charge on the property.

[5]

The defendants' case 8In general terms the defendants' case sought to grapple with the entirety of the suggested chronology and in that regard the defendants' chronology proves to be of considerable utility, although not all items in the chronology are accepted in the reasons which follow Date Event 1933 Dusan Tasevski (Dusan) born in Macedonia 1937 plaintiff (Menka) born in Macedonia Pre 1960 Peco (Peter) Tasevski born 14.08.60 Vlado Tasevski (Larry) born 9.09.62 Dusan migrates to Australia 22.12.64 Date of transfer to Dusan of Shellharbour Road property 22.12.64 Dusan grants mortgage over Shellharbour Road property to Savings Bank of New South Wales 22.12.64 Caveat J887602 entered against Shellharbour road title in relation to mortgage dated 22.12.64 from Dusan 18.12.65 Menka, Larry and Peter migrate to Australia 1971 Dusan discharges mortgage to Bank of New South Wales Savings Bank Limited over Shellharbour Road property 30.11.77 Dusan grants charge to AGC (Advances) Limited 15.12.77 Date of AGC caveat Q511197 over Shellharbour Road property in relation to equitable charge granted by Dusan to AGC 13.07.79 AGC execute withdrawal of caveat Q511197 May-88 Larry marries Susan Tasevski (Susan) Larry and Susan move in with Dusan and Menka at the Shellharbour Road property. Susan takes Dusan (and Menka) to doctors' appointments Larry and Susan pay for half the groceries while living with Dusan and Menka Larry and Susan's eldest daughter is born while they are living at Dusan's place 14.02.89 CBA approve loan of $60,000 to defendants to help buy land to build a home 12.04.89 Larry and Susan settle the purchase of land at 35 Baker Crescent, Figtree 13.04.89 CBA write to Larry and Susan confirming that the CBA paid $71,827.67 on settlement made up of $11,827.67 withdrawn from their savings investment account and the $60,000 bank loan 1989 In family discussions Peter and Eliana do not want Dusan and Menka to live with them and all of them agree that Dusan and Menka will go and live with Larry and Susan 1989-90 Dusan tells Larry that Dusan will sell his house and give the money to Larry as a gift for taking Dusan and Menka and looking after them. Menka tells them that Dusan and Menka will also give some money to Peter and Eliana 1989-90 Dusan tells Larry that Dusan will provide $100,000 to Larry and Susan and also will give Peter and Eliana $10,000 1989-90 Larry tells Dusan and Menka that D&M will not have to pay for anything 9.03.90 Larry and Susan execute loan agreement for construction loan of $100,000 to be drawn in instalments as agreed secured by mortgage over 35 Baker Crescent, Figtree 25.06.90 Date of withdrawal of caveat J887602 by Harry and Bertha Wadds over Shellharbour Road property lodged by Morris Hayes & Edgar for Maguire & McInerney 12.03.91 Maguire & McInerney return Dusan's title deed to the Shellharbour Road property to Dusan following registration of a withdrawal of caveat 24.05.91 Larry, Susan, Dusan and Menka sign loan facility agreement with Westpac of up to $70,000 as a "Bridging Loan" secured by mortgage over 102 Shellharbour Road property and to be cleared on sale of that property in approximately 12 months (CB 362) 24.05.91 Dusan grants mortgage 696826H to Westpac securing the debt incurred by Larry, Susan, Dusan and Menka 23.04.92 Westpac write to Larry, Susan, Dusan and Menka confirming offer to increase facility limit from $70,000 to $82,000 17.07.92 Larry, Susan, Dusan and Menka sign loan agreement with Westpac increasing facility limit to $82,000 repayable on sale of Shellharbour Road property by 30 September 1992 (CB 369) 11.11.92 Larry and Susan Tasevski and Dusan and Menka Tasevski execute loan agreement for a bridging loan repayable the next month on 15.12.92 Pre-14.12.92 Larry, Susan, Dusan and Menka move from Shellharbour Road property to 35 Baker Crescent property 14.12.92 Dusan Tasevski settles sale of his property at 102 Shellharbour Road, Port Kembla for $115,000. The proceeds received on settlement of $103,456.22 were disbursed $100,643.12 to Westpac Banking Corporation, $1,769.90 to the defendants and $1,043.20 to Maguire & McInerney, solicitors for Dusan Tasevski (CB 376) Post mid-December 1992 Larry and Susan pay all bills and groceries from when Dusan and Menka move in. Dusan and Menka keep their pensions. 16.12.92 Westpac Banking Corporation notify Dusan Tasevski, the plaintiff and the defendants that the payment of $100,643.12 discharges the bridging loan made to Larry, Susan. Dusan and Menka and associated fees 17.12.92 Bevans Real Estate account to Dusan Tasevski for the balance of the deposit less commission c. 12.92 Dusan (and Menka) give/s $10,000 to Peter 31.12.92 Discharge of Mortgage I017009 by Dusan over Shellharbour Road registered 5.02.93 Larry and Susan Tasevski execute loan agreement with Westpac Banking Corporation to borrow $143,000, to be drawn in instalments Early 1993 Dusan asks Larry to take Dusan and Menka to a solicitor because Dusan doesn't "feel comfortable not having anything in writing". 26.05.93 Dusan, Menka, Larry & Susan sign agreement at Maguire & McInerney recording arrangements among them. The document is explained by Mr McInerney. Larry translated for Menka. Larry asks if Dusan and Menka want an interpreter and this is refused 20.07.99 Lawson Andonovski send letter to Larry on behalf of Dusan and Menka demanding $110,000 paid from sale of property and $75,000 allegedly advanced in 1991 from funds received on Dusan's voluntary retirement c. early August 99 Dusan and Menka apologise for letter and says they want to continue living with Larry and Susan 7.10.99 Dusan Tasevski dies Thereafter Menka continues living with Larry & Susan. They take her to the cemetery every Sunday and on special occasions when appropriate under Macedonian tradition. They take her on hairdresser's appointments, dressmakers' appointments, doctor's appointments, social engagements. Menka prepares her own breakfast and lunch and Susan prepares dinner. Menka does not prepare meals for the family. Menka does her own washing but not the family washing. Menka does not do dusting apart from her own bedroom and does not do grocery shopping until 6 months before she leaves. Menka tends the vegetable garden and gives all produce from it to Peter. Susan does the shopping and washing and Susan, with help from her three daughters, does the cleaning. 2001-2003 Susan assists Menka with psoriasis issues including wrapping Menka in cut up wet sheets 2003 Peter and Larry argue over Peter's conduct at Larry's 40th birthday party. Peter calls Larry and says he is going to take Larry and Susan's house 2003 Peter calls and tells Susan that Peter is going to take their house and Larry and Susan will be living in Susan's father's garage c. 10.08 Menka starts to buy her own groceries Menka packs 20.04.09 Peter receives call from work mate saying that Peter is at Larry's work yelling and screaming and Peter gets on the phone and says Larry must go home and Police are waiting Menka returns, collects some of her things and leaves the house and obtains interim apprehended violence order. Police tell Larry not to let Menka into the house unless the Police were there to supervise. All Menka's things have been put in boxes for collection. Menka and Peco return and Larry rings Police who attend and supervise. 15.07.10 Statement showing $384,134.06 owing in respect of ANZ mortgage

[8]

Contracts Review Act 9The plaintiff contends that the document signed in the solicitor's contract is an unjust contract which should be set aside and effect given to the real agreement between the parties, which was that Menka and Dusan contributed monies to the building of the home on the basis that they would both be listed as co-owners on the title to the property. The Contracts Review Act ('CRA') permits the Court to review contracts and to set aside "unjust contracts". 10Aspects of the contract that are claimed to give rise to material "unfairness" within the terms of Section 9 of the CRA are the fact that the plaintiff and her husband were clearly much less educated than their son and daughter in law, not experienced in property matters and not sophisticated commercial people. (See Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413; St George Bank Ltd v Trimarchi [2004] NSWCA 120; Small v Gray [2004] NSWSC 97; Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; Higgs v Thompson bht The Protective Commissioner [2006] NSWSC 920; Irvine v Irvine [2008] NSWSC 592). 11They did not speak much English and the contract was not translated to the plaintiff or her husband prior to signing it. They did not have legal advice or independent legal advice in relation to the contract. This was found to be an area of injustice in Khoshaba at [25]. ( See also Irvine v Irvine [2008] NSWSC 592 and Mighell and Anor v Gargoura and Ors [2009] NSWSC 248). 12Additionally, the plaintiff's husband appears to have been ill for at least some of the period during which these events occurred. 13The plaintiff claims that if there is injustice in the contract, then whether or not it was caused or contributed to by a party, it can be taken into account as a matter relevant to the exercise of discretion by the Court, pursuant to Section 9 of the Contracts Review Act ( Perpetual Trustee Co Ltd v Khoshaba , [2006] NSWCA 41 per Spigelman CJ at [93 - 97]). 14The plaintiff claims that if a finding of injustice is made under the CRA, then the remedial scope of the Court is considerable (see for example Irvine v Irvine [2008] NSWSC 592). In that circumstance the plaintiff seeks that the Court grant to the plaintiff financial compensation, or an order for sale of the house and division of the proceeds, including payment to the plaintiff of such sum as the Court may determine to be appropriate.

[17]

The evidence of the plaintiff 30The evidence of Menka left much to be desired . 31Her evidence was given through an interpreter. Her first answer, when being shown her husband's signature on his will and being asked what the document was, involved her saying that she could not recall whether her husband made a will at all. On being shown a letter from Maguire and McInerney Solicitors addressed to herself and her husband enclosing draft wills prepared in accordance with their instructions, her answer was that she did not know the letter at all. She was asked whether back in 1993 she contacted a solicitor and asked a solicitor to draw up a will for her and her answer was I do not know, I do not remember. 32Her powers of recall were on significant areas shown to be faulty. 33Whilst it may be appropriate to observe that the first several pages of her transcript were perhaps due to her anxiety in being in a witness box, the fact is that the documentary evidence on numerous occasions was disparate to her own evidence. 34On the major issue of the meeting with Mr McInerney her evidence included the following : Question What happened when you met with Mr McInerney? Answer I don't know, we went there, they were talking with Vlade and Susan, Dusan and I would just listening, we didn't understand. Neither Dusan nor me, we did not understand. Question [Transcript 40] when you were in Mr McInerney's office, did Mr McInerney speak about each part of the document you were asked to sign.? Answer I'm sorry I don't understand this response, he took us there, Dusan didn't know what to say anything, well ... how to say anything, he didn't know what we went for. 35The cross-examination on a number of occasions sought to elicit from the plaintiff the fact that her husband had having been at work in Australia for some considerable time achieved a familiarity with a number of common English terms. 36In general terms the plaintiff did not agree. 37When the evidence of Larry and Susan was taken they both said that not only Dusan but also the plaintiff had some familiarity with the English language although Dusan had more familiarity than the plaintiff. 38In truth and having listened carefully to the cross-examination of the plaintiff, the combination of her very poor recall on many areas, combined with the documentary evidence before the Court, permits a finding that in most cases strongly support the defendants' oral evidence. In the circumstances proven before the Court there is no justification for the plaintiff's contention that the subject contract is shown to be an unjust contract which should be set aside

[27]

Consideration 2: Attributable blame 71Mr McGrath submitted that even if the Court were to favour a constructive trust, Menka should not be entitled to relief as the relationship broke down because of her behaviour. Mr McGrath submitted that 'attributable blame" is an essential element of relief per Baumgartner v Baumgartner (1987) 164 CLR 137 and Taylor v Streicher [2007] NSWSC 1006 per McDougall J. 72The concept of attributable blame has received considerable attention over the years. 73In McKay v McKay [2008] NSWSC 177, Brereton J adopted (at [16]) what was said by Bryson J in Bennett v Horgan (in a passage that has been approved by Burchett AJ in Kriezis v Kriezis [2004] NSWSC 167 (at [23]), and by Campbell J (as his Honour then was) in Hill v Hill [2005] NSWSC 863, at [35]): The concept of attributable blame must be understood and applied with some tolerance; in my view it does not call for a judgment attributing blame among members of a family for the continuing relationship becoming intolerable, unless perhaps in particularly gross cases. Such judgment would be difficult and unreliable, as it is rare indeed that something or other which could be said to be a ground for blame cannot be identified and laid to the charge of each of the persons concerned. Leaving gross cases involving criminality or similarly reprehensible behaviour on one side, it should usually be understood, in my opinion, that where personal relationships deteriorate and the sharing of a dwelling becomes intolerable to some or all of those concerned, there is, within the meaning of Deane J's expression, no attributable blame and the case is one for an equitable adjustment. 74Austin J in Palinkas v Palinkas [2009] NSWSC 92 (at [52]) said: The parties clearly have strong views as to whether there has been attributable blame for the breakdown of their relationship, but this is not the case where, on the evidence, there is clear wrongdoing on one side while the other is manifestly faultless. Rather it is a case of a relationship gradually turning sour through incremental events where thoughtless conduct appears to have been matched by undue sensitivity. ... Considering the evidence as a whole, I would not conclude that there is "attributable blame" on either side for the purpose of applying the equitable principles espoused by Deane J. 75In my view the present case is a paradigm example of the above observations. 76Whilst it is true that the plaintiff is disbelieved (1)in that section of her proceedings in which she claimed that she and her husband had been promised by their son and daughter-in-law that their names would be placed on the title as co-owners of the [...] home, (2)in relation to her claims of a $75,000 retirement contribution and as to her claims that her husband provided $30,000 to the defendants, there remain other areas of her claims to be considered. 77Standing back from the minutiae which characterised the whole of this unfortunate litigation, the Court finds it extremely difficult to believe that : (1)Larry and Susan never argued with the plaintiff and on every occasion over the years when they lived together were the epitome of perfect behaviour towards the plaintiff. (2)plaintiff was herself the epitome of perfection in her behaviour towards the defendants. 78Human nature being what it is, there would obviously have been be many occasions where family squabbles occurred, sometimes caused by one side of the family and sometimes caused by the other. 79As to the circumstances leading to the application for an apprehended violence order, there is insufficient evidence one way or the other as to whether or not as the plaintiff contended, her son manhandled her and treated her roughly. However having observed Larry in the witness box I cannot accept that he would have threatened to kill his mother. Rather, as I see it, the whole exercise can simply be put down to the case of a relationship gradually turning sour through incremental events. But human nature being what it is, no members of any family are blameless and sometimes, with the best will in the world, both sides bear the responsibility for goading each other in a fashion which goes too far.

[32]

Valuing the adjustments 95At the outset a number of the plaintiff's claimed contributions must be rejected due to the Court's hesitance to accept the accuracy of her evidence. The following contributions are rejected: (1)she has contributed since Dusan's death the sums of $100 for electricity, $100 for water bills and $50 per telephone bill, until August 2008; (2)the contribution of $30,000 towards furniture; (3)the contributions of various amounts of $100 - $300 during construction when Vlado approached Dusan seeking a contribution 96As for the plaintiff's contentions as to the circumstances that led to her leaving the house, the events are uncertain. The burden of proof lies with the plaintiff in this regard and in the absence of sufficient evidence, I do not accept she is entitled to an adjustment. 97However, for the remaining contributions Menka deserves recognition. 98In relation to domestic contributions, it is well settled that such contributions are recognised in equity; see Baumgartner v Baumgartner (1987) 164 CLR 137 at 155-6; per Gaudron J; Bryson v Bryant (1992) 29 NSWLR 188 at 203-4 per Kirby P. However, how to accurately value these contributions in light of sparse evidence as to their value to the property over which the equitable charge relates is difficult. In one of the principle cases on the issue Anson v Anson [2004] NSWSC 766, Campbell J at [49] expresses this difficulty stating: " ... it is only at the level of broad impression that a conclusion can be arrived at about what has been established concerning the proportionate contributions made to the present value of the property." 99His Honour follows with setting out the principle to be considered, explaining: "In arriving at even those broad impressions, I bear in mind that it is only to the extent to which it is established that it would be unconscionable for the proportionate beneficial interests to lie in accordance with the legal title ...." that an adjustment (in that case a constructive trust) should be made. 100In valuing Menka's contributions, one cannot neglect the significant care Menka also received over and above the defendants' contractual obligations. One such example given in evidence was Susan wrapping Menka in sheets during a period of psoriasis. This sort of care was clearly beyond what was envisaged in the May 1993 agreement. 101However, it is undoubtedly the case that Menka cared for the defendants' three girls, especially when Susan was at work. Without this contribution, Susan would have had to have found paid care for her children. I note however, that for much of this time, the children were at school. On this basis, I afford Menka an extra 5% interest in the Fig Tree Property to account for the surplus valuable contribution she made to the familial life of the defendants. It was this contribution valued at $35,000 that allowed Susan to carry out part time work. 102There is one further area with which the Court grappled. This is the payment of Menka and Dusan for groceries both while Dusan was alive and following his death. Susan admitted that Menka frequently shopped with a trolley of her own and paid for those groceries herself. These payments were clearly in violation of the May 1993 agreement. 103It is unfortunate that no evidence was presented by the defence as to how much was expended on groceries over time. The only reference was a $50 a fortnight contribution following Dusan's death. Without any other evidence as to value, I have added $50 a fortnight to Menka's contributions for the period following Dusan's death in October 1999 until her departure from the house in April 2009. This is 10 years and 7 months, resulting in an additional contribution of $13,700. 104Therefore considering the adjustments put forward by counsel, Menka's entitlement is $174,350.

[33]

Re-adjusting the equitable lien 105The equitable lien must undergo two further adjustments to produce a fair sum of compensation. 106The first adjustment is that advocated by the defence. This is the calculation performed by McDougall J at [66] -[67] which adjusts for life expectancy. The plaintiff submitted that the life expectancy of a woman of Menka's age is 15.6 years. With respect to Ms Tibbey, I was unable to locate this figure in the "Population Projections, Australia 2006 - 2101" published 4 September 2008 to which she pointed the Court. 107The Australian Bureau of Statistics did have another table titled "Life Tables, Australia 2007-2009" released on 8 December 2010. This table indicates that the life expectancy of a 74 year old woman is 14.5 years. This is the figure on which the Court will proceed. 108In line with Mr McGrath's submissions, for just over 15 years the plaintiff lived with the defendants. From the time of the contract until Menka's expected death (according to the table) it was envisaged she would live with the defendants for 29.5 years. This means Menka's residual interest is 14.5 / 29.5. In other words, Menka is entitled to just under half of the remaining contribution. 109This reduces the amount to $85,697.46. 110McDougall J also made a contingency adjustment in case the plaintiff decided to leave voluntarily. I am not convinced that on the terms of the May 1993 agreement a similar contingency adjustment should be made. Menka had few financial resources and needed familial care. The likelihood of her leaving the defendants' home in circumstances other than conflict is extremely low. It would be inappropriate to make such an adjustment. 111Finally, this entitlement must be altered for interest as advocated for by the plaintiff in line with McDougall J's formula in Taylor v Streicher at [68]. Interest should run from 20 April 2009, the day on which Menka left the defendants' home, at the prejudgement interest rate. 112The final equitable lien is $85,697.46 plus interest accruing from 20 April 2009. 113The advantage of awarding an equitable lien as opposed to an interest in the Fig Tree Property through a constructive trust is that Menka's detriment can potentially be remedied without the need for the defendants to sell the property. The equitable lien rather recognises that Menka has a right to be paid and that debt is referable to the Fig Tree Property. Of course, failure to pay this debt may result in an order for sale Ell v Cisera [2001] NSWSC 242.

[36]

An alternate to estoppel 119While estopping the defendants from denying Menka's right is undesirable, the High Court in Commonwealth v Verwayen ( 1990) 170 CLR 394 recognised that more flexible remedies are available, provided they fulfill the over riding purpose of curing the detriment suffered: "Equity was concerned, not to make good the assumption, but to do what was necessary to prevent the suffering of detriment" [411]. 120This flexible approach is particularly favoured as it provides for a clean break see Giumelli v Giumelli (1999) 196 CLR 101 [113-114]. 121The essence of the contract was that in exchange for the gift, Larry and Susan would care for Dusan and Menka for life. Allowing them to walk away from this obligation would be inequitable. 122Guidance in achieving this objective is provided by Gzell J in Stoklasa v Stoklasa [2004] NSWSC 518 at [42]: "In the tragic circumstances of this breakdown in family relationships it is inappropriate that the defendant should take the plaintiff back into the house. It seems to me that the appropriate form of order is an equitable charge over the house in favour of the plaintiff for the value of the obligation to provide him with care and accommodation as at 1 November 2002 plus interest thereon and for an inquiry to be made by a Master to determine the amount of the charge." 123Such an order was cited by Young CJ in Eq with approval in Henderson v Miles (No 2) [2005] NSWSC 867 at [53 - 54]. 124While this remedy is favourable in the sense it will best fulfil the agreement of the parties without imposing the injustice of forcing them to live together, valuing Menka's life interest is extremely difficult and uncertain. 125In rejecting the above approach, Brereton J cited similar concerns in McKay and Anor v McKay [2008] NSWSC 177 at [37]: "The practical problems of the Stoklasa approach in a case such as the present involve the difficulty of valuing, not just the lifetime right of residence, but the right to receive care. Personal injury cases of seriously disabled plaintiffs show that the cost of care can be enormous. It is quite unknown whether, and if so for how long, Mr McKay would require intensive care in the future. While, as in common law personal injury cases, an estimate can be made, it is an unsatisfactory approach in the context of Mr McKay's reduced life expectancy, where the risk of error and consequent injustice is magnified in quantum." 126For this reason, the Court preferred an equitable lien.

Menka Tasevska v Vlado

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (39 paragraphs)

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Legislation Cited (1)

Cases Cited (31)

Cited By (5)