//
[143]
[2024] VSC 763
General information, not legal advice.
Supreme Court of Victoria
2024-12-11
McDonald J
Original judgment source is linked above.
ESTOPPEL - Proprietary estoppel - Constructive trust - Plaintiff promised to bequeath property to first defendant if he undertook significant renovation of property - First defendant relied upon promise to his detriment by working full time on renovation for fifteen months, forgoing income he would otherwise have earned and contributing to the cost of the renovation - Whether unconscionable for plaintiff to depart from promise - Prima facie entitlement of first defendant to receive proceeds of sale of property - Whether receipt of proceeds of sale goes beyond what is required for conscientious conduct - Whether remedy is disproportionate to first defendant's detriment.
LACHES - Whether first defendant acquiesced to plaintiff having legal and beneficial interest in property to the exclusion of first defendant's proprietary interest in property - Whether first defendant's delay in lodging a caveat on title of property unreasonable - Whether plaintiff suffered serious prejudice by reason of first defendant's delay in claiming a proprietary interest - Plaintiff failed to establish prejudice by reason of first defendant's delay.
LEGISLATION - Evidence Act 2008 ss 64(2)(b), 64(3)(b), 140(2)(c) - Limitation of Actions Act 1958 s 21(1)(b) - Supreme Court (General Civil Procedure) Rules 2015 order 15.03(3).
For the Second Defendant/ Second Defendant by Counterclaim
1 Milan Milenkovic was born on 15 February 1937. He was married to Milunka Milenkovic who died on 27 August 2020. They had two children: Radunka, born 20 November 1957 and Milic, born 31 January 1960. Due to the commonality of surnames I shall refer to the parties by their first names, without any disrespect intended.
2 Milan and Milunka migrated to Australia from Serbia in January 1971. Throughout the period 1971 to 1984 they purchased a number of properties including 285 Glenlyon Road, Fitzroy North ('Glenlyon Road'). This property was purchased for $64,000 in February 1984.
3 Between late April 1993 and July 1994 Glenlyon Road was extensively renovated. It is common ground that Milic, who was a registered builder, obtained the building permits for the renovation and undertook work on the renovation project. The extent of his involvement in the project, including any financial contribution he made to the cost of the project, is hotly contested.
4 Milic contends that in 1992 Milan and Milunka promised to bequeath Glenlyon Road to him if he agreed to renovate the property. Milic contends that he worked full time on the project from late April 1993 until July 1994. He also contends that he paid for nearly all of the building materials and the tradespeople who worked on the renovation. Milan denies that any promise was made to Milic that he would receive Glenlyon Road. He accepts that Milic was involved in the renovation. However, he contends that Milic's involvement was limited to obtaining the permits and plans, undertaking some work and arranging for contractors to work on the site.[1] He denies that Milic made any financial contribution to the cost of the renovations.
5 On 14 September 2019 Milan and Milunka signed a contract for the sale of Glenlyon Road for $1.83 million. On 16 October 2019 Milic lodged a caveat on the title of Glenlyon Road. In order to allow the sale of the property to proceed an agreement was reached between Milic, Milan and Milunka whereby the second defendant acted in the sale of the property and retained the net proceeds of sale on trust, to be dispersed only upon authorisation in writing by Milic, Milan and Milunka or by order of the Court. As part of this agreement the caveat on the title was withdrawn.
6 On 27 May 2021 Milan filed a writ and statement of claim. In his statement of claim he seeks a declaration that he is the sole person entitled to the proceeds of sale of Glenlyon Road. He also seeks a direction that the funds presently held by the second defendant be paid to him. By his amended defence and counterclaim Milic claims a proprietary interest in Glenlyon Road pursuant to a proprietary estoppel constructive trust. He seeks a declaration that prior to the sale of Glenlyon Road Milan and Milunka jointly held Glenlyon Road on trust for themselves for their own use and possession for their own lives, and upon their deaths, for Milic. He also seeks an order that the second defendant pay the proceeds of sale of Glenlyon Road to him.
7 I have concluded that in 1992 Milan and Milunka promised to bequeath Glenlyon Road to Milic if he undertook renovations of the property. Milic relied upon this promise by working full time on the renovation between late April 1993 and July 1994. He acted to his detriment by devoting time and labour to the renovation, by forgoing income he would otherwise have received as an employee of the Australian Customs Service ('ACS') and by contributing his own money to the cost of the renovation. He also relied upon the 1992 promise to his detriment in 2006 when he constructed a summer kitchen at Glenlyon Road which he paid for.
8 By July 1994 Milic had a proprietary interest in Glenlyon Road pursuant to a proprietary estoppel constructive trust. I have concluded that it would be unconscionable if Milan resiled from the 1992 promise. Milic is entitled to an order that the second defendant pay him the net proceeds of the sale of Glenlyon Road together with any accrued interest. An order of Keith JR made on 13 August 2021 records the net proceeds as $1,808,909.98.
9 Milan commenced giving evidence on 20 June 2024 the ninth day of trial. Shortly after he commenced giving evidence it was apparent that Milan was having difficulty understanding the questions he was being asked. This was not due to a lack of proficiency in English because he had the assistance of an interpreter. He also could not identify his own signature on his will even though it was not in dispute that the signature was his.[2] Following the luncheon adjournment on 20 June 2024 his counsel informed the Court that both he and his instructing solicitor had significant doubts about Milan's capacity to give instructions.[3] Counsel submitted that prior to 20 June 2024 neither he nor his instructing solicitor had any doubts as to Milan's capacity to provide instructions.
10 The proceeding was adjourned to allow Milan to be assessed by a neuropsychologist to determine whether an application would be made for the appointment of a litigation guardian. The application was made by summons filed 26 July 2024. The application was supported by an affidavit sworn by Milan's solicitor, Ms Kathleen Wilson. The affidavit annexed a neuropsychology report of Dr Karen Bird. Dr Bird concluded that due to cognitive impairment Milan was incapable of competently managing his affairs in relation to the current proceeding. On 30 July 2024 the Court made an order pursuant to order 15.03(3) of the Supreme Court (General Civil Procedure) Rules 2015 appointing his grandson, Nenad Nikolic, as his litigation guardian.
What promises, if any, were made to Milic prior to him undertaking work on Glenlyon Road in 1993/1994?
11 Milic contends that his parents made two promises to bequeath Glenlyon Road to him. The first promise was made in about 1989. Milic contends that his parents promised that if he built a double brick garage and pergola at Glenlyon Road he would inherit the property. Milic contends that a second promise was made in 1992 ('the 1992 promise'). Milic contends that during a discussion with his parents Milan said words to the effect:
'I want you to build a house, this house is old, it's derelict, it's falling apart. You're a builder, you're my son, how dare you make me look like a pauper. Why don't you build it for me? I need it getting built and we will make sure this house stays with you forever.' ... 'We will give you this house as payment for that because we can't afford to do it. We want you to do it'.[4]
12 Milic gave evidence that Milan told him that if he built the house it would be left to him. Milan said Radunka had already received, prior to 1992, 12/33 Ballarat Road, Footscray ('Ballarat Road'), 35 Percy Street, St Albans ('Percy Street') and 3 Koala Court, Chelsea ('Koala Court').[5] Milunka nodded in agreement.[6] There was no discussion at the time or thereafter as to who would be paying for the renovation.[7]
13 Milic's primary case is based on a proprietary estoppel constructive trust. He contends that Milan is estopped from denying the 1992 promise. In the alternative, he contends that Milan is estopped from denying the first promise which was made in 1989. He also contends that the first promise forms part of the factual substratum evidencing the fact that his parents made the 1992 promise.
14 As Milic's primary case is based on the 1992 promise, in the first instance I shall address the question of whether that promise was made and, if so, whether Milic relied upon it to his detriment.
15 Much of the evidence in the present proceeding involved witnesses recounting events and conversations which occurred many years ago. It is only natural that with the passage of many years recollections of past events and conversations can be unreliable. I have therefore approached with caution the evidence of witnesses recounting conversations which occurred many years ago. The need for caution is amplified in the case of Milic and Radunka, the principal protagonists in the litigation. Regrettably, there is deep seated and long standing ill will between Milic and his sister. Each of them has a direct and significant pecuniary interest in the outcome of the proceeding. Although Milan is the plaintiff, he is 87 years old and Radunka is the sole beneficiary of his estate. An order requiring the release of the proceeds of sale of Glenlyon Road to Milan is almost certain to result in a significant financial benefit to Radunka upon his death.
16 I have treated the evidence of both Milic and Radunka with caution where it has not been corroborated by independent witnesses or contemporaneous documents. Both Milic and Radunka were unreliable witnesses. In significant respects their evidence was tailored to enhance what they perceived would benefit their respective cases. For Milic this involved exaggerating the extent of his financial contribution to the 1993/1994 renovation and downplaying the financial benefits which he received from his parents. In Radunka's case it involved denying any knowledge of the 1992 promise and significantly understating the extent of Milic's contribution of labour and funds to the 1993/1994 renovation of Glenlyon Road.
Was it inherently unlikely that the 1992 promise would have been made?
17 Milan's counsel submitted that it is inherently unlikely that Milan and Milunka would have promised to bequeath Glenlyon Road to Milic in 1992 in return for Milic agreeing to undertake a renovation of the property.[8] Counsel submitted that if the promise had been made Milan would not have been free to sell Glenlyon Road to fund Milunka's aged care, as he in fact endeavoured to do in 2019. Nor would he have been in a position to sell the property to fund his own aged care.[9] Counsel submits that if such a promise had been made Milan and Milunka would have given effect to such a promise in their wills, which they did not do. Further, they would have been expected to discuss their wills with Milic which they did not do.[10] Counsel submits that there is no mention of the 1992 promise in a letter written by Milic to his father dated 14 January 2009.[11] Counsel submits that if Milan and Milunka had promised to bequeath Glenlyon Road to Milic it is very unlikely that they would subsequently have transferred 29 Stanley Street, Brunswick ('Stanley Street') to Milic in May 1999, leaving them with only Glenlyon Road and whatever superannuation they had accrued, to fund their retirement.[12] Counsel submits that it is unlikely that Milan and Milunka would have put themselves in a position where they would be entirely reliant on the goodwill of their children to have a roof over their heads in retirement.[13]
18 Counsel submits that if there was a promise to bequeath Glenlyon Road to Milic this would have been discussed in April 1993 when Percy Street was transferred from the joint ownership of Milan, Milunka, Radunka and Milic to be solely owned by Radunka.[14] Counsel submits that the Court should conclude that it is more likely than not that Milic undertook the renovation of Glenlyon Road on the basis of the financial assistance he had already received from his father, and assistance which he expected to and did subsequently receive, rather than on the basis of the 1992 promise.[15]
19 Milan was born on 15 February 1937. In 1992 he was 55 years of age and still in full time employment. Milunka was born on 20 October 1933.[16] In 1992 she was 59 years of age and also in full time employment. Milunka retired in 1998. Milan retired in January 1999 after he was made redundant by Bayside Trains on 23 December 1998.[17]
20 On 18 June 1986 Milan purchased a property in Kraljevo, Serbia. The property was registered in the names of Milic and Radunka.[18] It is common ground that Milan paid the purchase price of $32,000. On 26 July 2011 Milic gifted his share of the property to his nephew who is the son of a half-brother from Milunka's first marriage.[19] In 2017 Milan sought to have Milic's share in the Kraljevo property transferred to him. Milic objected to the transfer. This resulted in proceedings in a Serbian Magistrates' Court and a decision on 21 November 2017 to transfer the property to Milan.[20] Milic gave evidence that he subsequently successfully appealed this decision and that legal proceedings relating to the ownership of the Kraljevo property are ongoing.[21]
21 There is a considerable body of evidence which supports a finding that in 1992 Milan and Milunka intended to retire permanently in Serbia and to live at the Kraljevo property. Radunka agreed that when Milan and Milunka purchased the Kraljevo property in 1986 they always intended to retire there.[22] Radunka agreed that after 1999 when both Milan and Milunka had retired they spent many months each year in Serbia.[23] In addition to his Australian pension entitlements Milan also had a small pension from the Serbian government.[24]
22 Drago Susanj gave evidence, which I accept, of discussions with Milan concerning his intention to retire permanently in Serbia. Milan told Mr Susanj that Glenlyon Road was for the next generation, that he and Milunka were retiring overseas, that they had their pensions and that they had all that they needed.[25] When it was put to Mr Susanj in cross-examination that Milan and Milunka had never permanently moved to Serbia, Mr Susanj replied: 'No, that was discussed as their retirement plan. I remember Milan specifically telling me about how he looked forward to making wine and enjoying all the fruits and the lifestyle in Serbia'.[26] This discussion was in the late 1990s.[27] I accept this evidence. Mr Susanj's account of his discussions with Milan coincides with the commencement of his retirement in 1999.
23 In addition to acquiring the Kraljevo property, in 1986 Milan entered into an agreement with Radunka pursuant to which Radunka would become the sole registered proprietor of Percy Street.[28] Under the terms of this agreement Radunka took over payment of the mortgage for Percy Street which had a balance of $45,000 in mid-1986.[29] Radunka agreed to transfer to Milan when requested the title to her family home 213 Furlong Road, St Albans ('Furlong Road').[30] Subsequently, in 1999 Milan agreed with Radunka that rather than Furlong Road being transferred to him it should be transferred to her daughter, Natasha.[31] The significance of this agreement is that in 1992 when Milan promised to bequeath Glenlyon Road to Milic there was no risk of Milan not having any assets which he could sell to fund aged care for himself and Milunka. In 1992 in addition to the property in Kraljevo where he intended to retire Milan had an agreement that Furlong Road would be transferred to him.[32]
24 Counsel submits that if the 1992 promise had been made, Milan and Milunka would have been expected to have given effect to it in their wills. In order to address this submission it is necessary to examine the evidence relating to Milan and Milunka's wills.
25 Milan and Milunka executed identical wills on 22 April 1975 leaving their entire estates to the survivor with the survivor leaving his or her estate to Radunka as trustee to hold the balance of the estate on trust for herself and Milic as tenants in common in equal shares.[33] When the 1975 wills were executed Milic was a minor. Milan and Milunka owned two properties: 19 Cecil Street, Fitzroy, purchased 19 February 1974[34] and 46 Andrea Street, St Albans, purchased 4 March 1975.[35]
26 Milan and Milunka's next wills were made on 28 March 2008. Under the 2008 wills Milic and Radunka were appointed as joint executors and trustees in the event of the survivor's death. The 2008 wills contained the following bequest:
I GIVE AND BEQUEATH the whole of my estate both real and personal of whatsoever nature and wheresoever situate to such of my said children as shall survive me for a period of thirty (30) days and if more than one as tenants in common in equal shares.[36]
27 When the 2008 will was executed the only property owned by Milan and Milunka was Glenlyon Road. On 28 May 2010 Milan and Milunka executed identical wills leaving their entire estate to the survivor with the survivor appointing Radunka as sole executor and trustee and leaving the whole of the estate to Radunka.[37] On 9 August 2019 Milan executed a new will. He appointed Radunka as his executor and trustee. He bequeathed his entire estate to Radunka. He expressly stipulated that he made no provision for Milic.[38]
28 In 2009 there was an exchange of correspondence between Milic and Milan. On 14 January 2009 Milic wrote to his parents. An English translation of this letter is Annexure A to this judgment. The letter commences with Milic stating that he renounces his inheritance to Glenlyon Road as well as renouncing his interest in the Kraljevo property. Thereafter, the letter sets out a raft of grievances. Milan responded to the letter. The response is Annexure B to this judgment. The letter is undated, but is plainly written in response to Milic's letter of 14 January 2009. Page 2 of the letter sets out Milan's account of the circumstances in which Milan's will dated 28 March 2008 was executed:
You threw away the papers, said that you did not want to look after the bills anymore. You said: "Give them to Radunka, let her look after it for a while". I got angry, went and gave Radunka (JUST RADUNKA, not Rajko Nikolic) Power of Attorney. Then I annulled the old will and made a new one: HALF FOR YOU AND HALF FOR RADUNKA. This is what I had always said I needed to do.
The Title in Kovanluk is in two names. YOUR [sic] AND RADUNKA. No one can change it without you! Radunka has never asked for the house in Kovanluk. Rajko Nikolic IS NOT MY SON, NOR CAN HE EVER BE. THERE IS NOTNIG [sic] OF MY PROPERTY IN HIS NAME!
You know the best [sic] what you did and how you behaved towards us. We had never made any difference between you and Radunka. You know very well how you obeyed us and how Radunka did it. We had never praised you nor scold you among people. We had never made any difference among the grandchildren. They are all equal to us Why do you mention Radunka's and your children? What did you intend to say? What have your sister and brother-in-law do [sic] to you so that you don't invite them to your Saint Day celebration?
We never did anything behind your back. When we came back from Serbia it took you 43 days to come and visit your mother and father. You took Marina on a holiday
You have helped me open my eyes and do what we had always talked about doing - divide everything equally among you two after our death. Thank you for that' [sic] We woke up after you threw away the papers. We had always tried to be just.[39]
29 When the 2008 will was made Glenlyon Road was the only asset owned by Milan and Milunka (putting to one side the Kraljevo property which at the time was registered in the names of Radunka and Milic). The final paragraph of Milan's letter supports a finding that the intent of the 2008 will was to alter the distribution of Milan and Milunka's assets upon their death, such that Milic and Radunka would each receive 50% of Glenlyon Road. Radunka's evidence supports this finding. Radunka gave evidence that in early 2008 she was told by her parents that they had changed their wills and that Radunka and Milic would each receive 50% of the estate.[40]
30 It is difficult to reconcile the evidence set out above with the terms of the 1975 will. Under the terms of that will the Glenlyon Road property would have been divided equally between Radunka and Milic in the event of Milan and Milunka's death. The oral and written statements of intent by Milan to change his will such that Glenlyon Road would be divided equally between Milic and Radunka supports a finding that Milan believed that, absent the 2008 will, Glenlyon Road would not be divided equally between Milic and Radunka.
31 One reason why Milan would have had such a belief is that he had previously promised Milic that he would inherit Glenlyon Road in his own right, and, as is detailed later in this judgment, had repeated that promise in the presence of others on numerous occasions. It is correct that Milan and Milunka failed to amend their wills post 1994 to reflect the promise which had been made to Milic in 1992. However, the failure of Milan and Milunka to act in accordance with the 1992 promise does not warrant a finding that the promise was not made. Milan made an express promise to bequeath Glenlyon Road to Milic. Milic was entitled to assume that both Milan and Milunka would amend their wills to reflect this promise. Their failure to do so is not evidence of the absence of the promise. Rather, it is evidence of unconscionable conduct on their part in failing to act in accordance with the 1992 promise.
32 Milan's counsel submits that the 1992 promise is not mentioned in the letter of 14 January 2009. It is correct that there is no express reference to the 1992 promise in this letter. However, it is referred to in a subsequent letter written by Milic to Milan. The letter is undated. Radunka gave evidence that the letter was received by Milan and Milunka in Serbia in an Express Post envelope dated 17 May 2009.[41] An English translation of the letter by certified translator is Annexure C to this judgment. I shall refer to this letter as the May 2009 letter.
33 The original Serbian version of the May 2009 letter includes diacritics which have been handwritten over the typeface. The 14 January 2009 letter which Milic accepts he wrote does not include any diacritics. Milic gave evidence that he never uses diacritics when writing in Serbian.[42] This evidence must be weighed against the contents of the May 2009 letter. The letter could only have been written by somebody with an intimate knowledge of the Milenkovic family and the history of the breakdown in the relationship between Milic and his father. Realistically, this means the letter could only have been written by Radunka, Rajko or Milic.
34 It is highly unlikely that the May 2009 letter would have been written by Radunka or Rajko. First, because the letter contains vitriol directed at Radunka and Rajko. For example: 'Kudos to Radunka (Nikolic family) for not coming to hospital to visit Zendi when my child almost died (he was bleeding on his brain) even though they were told'.[43] Second, and more importantly, the May 2009 letter contains vitriol directed at Radunka's own children. For example: 'Kudos to Natasha [Radunka's daughter] for what she has to do in order to lie and also to force Dejan to lie that he has no family here and say that she met Dejan through Rajko's niece and not through us and Tanja [Milic's daughter] (what kind of idiots do they think we are who think of evil things and to only try and grab as much as possible for them)'.[44]
35 Milic contended that the May 2009 letter was written by a family member who was seeking to damage the relationship between Milic and his parents.[45] In effect, Milic contends that either Radunka or Rajko wrote a letter full of invective and vitriol directed at themselves and their children in order to generate ill will from Milan and Milunka towards Milic. I reject this contention. The letter was written by Milic.
The fact, that you had always told my children, from a young age, that the house in Brunswick was intended for them when you die, even though I forbade you to talk about that to them, you had messed up that promise and all behind my back along with Radunka and gave half of that house to Radunka, who accepted it with open arms although she knew very well about your promise that you had made to my children and also the fact that you had already prearranged to pass on the house in Furlong Rd, House in Percy St, a Block of Land in Chelsea both to her and her children, and who knows what else behind my back, and while she was accepting all that, she also knew very well that you didn't give anything to my children, only hers, and whenever she sees my children she pretends to give them hugs and pretends to love them ??? That kind of fine love isn't real. She only pretends to be their real auntie.[46]
This extract from the May 2009 letter is plainly referring to the 1992 promise.
37 Milan's counsel submits that if Milan and Milunka had promised to bequeath Glenlyon Road to Milic it is very unlikely that they would have subsequently given Stanley Street to Milic, leaving them only with Glenlyon Road and whatever superannuation they might accrue to fund their retirement.[47] This submission raises three issues for consideration. First, who purchased Stanley Street. Second, if Stanley Street was purchased by Milan/Milunka, did they gift the property to Milic? Third, if so, was the property gifted to Milic in March 1988 when it was purchased, or subsequently in May 1999?
38 Stanley Street was purchased on 4 March 1988 for $77,500 with Milan and Milunka registered on title as joint proprietors on 11 March 1988.[48] The property was mortgaged in favour of the Commonwealth Bank of Australia on 11 March 1988.[49] The mortgage was discharged on 4 April 1995. A CBA loan statement dated 1 June 1990 records an original loan secured by the mortgage of $50,000.[50]
39 Milic disputes that his parents paid for Stanley Street. He contends that he funded the purchase of Stanley Street even though his parents were registered on title.[51] He says he gave his parents $45,000 cash up front for the purchase of the property with an additional $30,000 in three subsequent instalments of $10,000 in cash.[52] I do not accept this evidence.
40 Milic gave evidence that the $45,000 he provided for the purchase of Stanley Street was part of the proceeds of sale of 272 Highett Road, Highett ('Highett Road').[53] The property was purchased by Jasmina's parents on 19 October 1979 for $42,000.[54] Milic gave evidence that the property was transferred to himself and Jasmina in late 1984.[55] They paid Jasmina's parents $45,000 but were not registered on the title at the time. The property was sold on 2 February 1988 for $126,000.[56] Milic gave evidence that in addition to the $126,000 from the sale of the property Jasmina received $25,000 from the sale of a hairdressing business which she had been operating from the premises.[57] Milic gave evidence that Jasmina's parents agreed that he and Jasmina would receive all of the proceeds of the sale.[58] However, it is difficult to reconcile this evidence with the fact that two ANZ mortgages which had been taken out by Jasmina's parents were discharged from the proceeds of sale on 2 February 1988.[59] I infer that these mortgages were discharged from the proceeds of sale of Highett Road.
41 Milic's evidence that Jasmina's parents gave both himself and Jasmina all of the proceeds of sale from Highett Road could have been corroborated by Jasmina's mother.[60] Jasmina's father has passed away. Milic did not produce any documentary evidence to disclose where and when the proceeds from the sale of Highett Road were deposited.
42 Milic gave inconsistent evidence as to how he utilised the proceeds of sale of Highett Road. After giving evidence that he used $45,000 to fund the purchase of Stanley Street, he gave evidence that he used the proceeds from the sale of Highett Road to build number 14 and 16 Cabinda Drive, Keysborough.[61] He also gave evidence that he needed all of the proceeds from the sale of Highett Road to build 14 and 16 Cabinda Drive and that these properties would not have been built had he not received all of the proceeds of sale.[62]
43 Milic's evidence in relation to the purchase of Stanley Street is inconsistent with evidence which he gave in proceedings which were heard in the Supreme Court of Victoria in March 2014 in which Jasmina claimed a portion of the proceeds of sale of Stanley Street.[63]
44 In late 2009/early 2010 Milic had a serious workplace injury when he fell from a height of 4.5 metres on a building site and injured his back resulting in permanent disability.[64] It is common ground that after this injury occurred he was no longer able to continue to work as a builder. Following the injury he was not able to service a mortgage in favour of Westpac Bank which he had taken out after Stanley Street had been transferred to him in May 1999. Stanley Street was repossessed by Westpac Bank and was sold for $671,000 on 9 May 2012. After the mortgage was discharged there were four competing claims for $224,900.48 which had been paid into Court on 24 April 2013 following the discharge of the Westpac mortgage.[65]
45 Jasmina contended in the Supreme Court proceedings that Milic had executed an acknowledgment of trust in her favour on about 2 June 1999 by which he declared and acknowledged that he held a one half undivided interest in the property on trust for her.[66] Milic was not a party to the proceedings in the Supreme Court in March 2014. However, he filed an affidavit in support of Jasmina's claim dated 25 February 2014. The affidavit includes the following:
46 Milic's affidavit is inconsistent with his evidence in the present proceeding that he paid the purchase price of Stanley Street. The affidavit makes no mention of Milic having provided his parents with a lump sum of $45,000 and a further $30,000 in three instalments of $10,000. Rather, it expressly states that his parents purchased Stanley Street as an investment property. He also deposes that he and Jasmina assisted Milan and Milunka in paying the monthly mortgage payments on Stanley Street. Based on his evidence in the present proceedings there would have been no mortgage to service. He contends that he provided his parents with the cash equivalent of the full purchase price of $75,000.
47 As set out above, I have concluded that Milic is the author of the May 2009 letter. Attached to this letter is a table in which Milic compares what he considers to be the value of gifts of property by his parents to himself and Radunka. In this table Milic has identified the Stanley Street property (with an original value of $78,000) and the payment of the stamp duty transfer fee of $6,000 as a gift which he received from his parents.[67] I reject Milic's evidence that he provided Milan and Milunka with $75,000 to purchase Stanley Street.
48 The second issue to be addressed is whether Milan and Milunka gifted Stanley Street to Milic. The third issue is whether, if the property was gifted to Milic, this took place in March 1988 or in May 1999. It is convenient to address these issues concurrently.
49 There is in evidence a document signed by Milunka, Milan and Milic dated 11 March 1988 ('the 1988 agreement') in the following terms:
We, Milan MILENKOVIC and Milunka MILENKOVIC of 285 Glenlyon Road Brunswick VIC 3068 and Milic MILENKOVIC of 12 [sic] Cabinda Drive Keysborough VIC 3173, hereby jointly agree that I Milan MILENKOVIC and Milunka MILENKOVIC are purchasing a house at 29 Stanley Street Brunswick VIC 3068, Title Certificate Vol. 4300 fol 859813, Lot 9 Plan of subdivision 7537.
The above mentioned house is to be held in legal documents in the names of Milan MILENKOVIC and Milunka MILENKOVIC,-but will be the ownership of Milic MILENKOVIC. This agreement is made due to the instability in marriage of Milic and Jasmina MILENKOVIC, thus if it comes to the divorce, we Milan MILENKOVIC and Milunka MILENKOVIC have the full right to handle or otherwise dispose of it in any manner we choose.
The house at 29 Stanley Street Brunswick VIC 3068 will be held in the name of Milan and Milunka MILENKOVIC for exactly (10) ten years from the date of registration after which time it will revert to the ownership of Milic MILENKOVIC providing that the marriage of Milic and Jasmina MILENKOVIC is a sound and stable one.
The following undersigned hereby consent and sign this agreement as the only valid document.[68]
50 Milic was cross-examined about the 1988 agreement as follows:
MR WELLS: I put to you that the reason why this document was created, and that you arranged for it, was to ensure that the gifting by your parents of Stanley Street to yourself would not have adverse consequences for them in their application for aged pension?
MILIC: Not correct. I didn't fill out the forms for aged pension, I helped him, assisted him, and it was their financial advisor that actually took him to the - organised aged pension for them, not me.[69]
51 In final submissions, Milan's counsel[70] submitted that the 1988 agreement was a sham.[71] The principles in relation to when an agreement will be a sham are well established. In Re Willow Fashions (Aust) Pty Ltd (in liq); Leveque v Downey as liquidator of Willow Fashions (Aust) Pty Ltd (in liq)[72] Hayne J stated:
In this connection it is important to bear steadily in mind that ordinarily speaking, the legal rights and obligations of the parties to a contract depend upon their intention and:
The relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party's words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.
(Gissing v Gissing [1970] UKHL 3; (1971) AC 886 at 906 per Lord Diplock; Australian Broadcasting Corporation v XIV Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-549 per Gleeson CJ).
Thus the uncommunicated subjective intention one party to a contract is, ordinarily speaking, irrelevant to determining the nature and extent of the rights and obligations of the parties to that agreement. It is for this reason that for a supposed contract to be a sham, it must be demonstrated that it was the common intention of the parties that the acts or documents concerned are not to create the legal rights and obligations which they may give the appearance of creating. Thus, even if it is assumed that the intention of either or both of the corporate parties to the contracts with the employees was to create some illusion or pretence, that is not sufficient to demonstrate that what otherwise would be an agreement binding upon those corporate parties may be treated as a sham.[73]
52 It was not put to Milic that the 1988 agreement was a sham, in the sense that Milic did not intend the agreement to create the legal rights which, on its face, it appeared to create. On its face the 1988 agreement created a beneficial interest for Milic in Stanley Street with a right to have the property transferred to him in March 1998 provided he and Jasmina had not divorced. Save for the 14 month delay to May 1999 in the transfer of Stanley Street, Milan and Milunka acted consistently with the 1988 agreement. This weighs against a finding that the 1988 agreement was a sham.
53 An allegation that the 1988 agreement is sham is a very serious matter. A finding that the agreement is a sham would entail a finding that Milic, Milan and Milunka signed the agreement in 1999 and backdated it to March 1988 so that Milan and Milunka could receive pension entitlements which they would not otherwise have received if they were the owners of Stanley Street in May 1999. Necessarily, a finding that the 1988 agreement is a sham would entail a finding that, prima facie, Milic engaged in social security fraud by facilitating his parents' receipt of pension entitlements they were not in fact entitled to receive. Equally, it would entail a finding, that prima facie, Milan and Milunka engaged in social security fraud. The 1988 agreement was signed and dated by both Milan and Milunka. If the document was in fact signed in May 1999 at the time Stanley Street was transferred to Milic, there is no evidence to support a finding that Milan and Milunka would not have understood what the agreement was or that its purpose was to facilitate their receipt of pension entitlements they were not entitled to receive.
54 On 20 September 1999 Milan applied for a Centrelink benefit from the Commonwealth.[74] For the purposes of completing the application Milan was required to answer the following question: In the last five years have you given any cash, assets, property or income away to anyone as a gift (or sold them to someone to less than their value)? In response to this question Milan stated: 'In the last ten years from 1988 to 1998 we have given my son approximately $10,000 per annum as a gift, namely we payed [sic] for a house for him addressed at 29 Stanly [sic] Street Brunswick.'[75] Milan signed a declaration that the information which he provided Centrelink was correct together with an acknowledgement that there are penalties for deliberately giving false or misleading information.[76]
55 Milan's reference to having given Milic $10,000 per annum between 1988 and 1998 is consistent with Stanley Street having been purchased by Milan and Milunka in 1988 for $75,000 and then Milan and Milunka subsequently paying off the mortgage prior to 1998. Milan's answer to the question of whether he had given away any property in the five years preceding September 1999 is totally inconsistent with Stanley Street having been purchased by Milan and Milunka in 1988, but only gifted to Milic in May 1999. Acceptance of the submission that the 1988 agreement was a sham and that Milic had no beneficial interest in Stanley Street prior to the transfer of the property to him in May 1999 would support a prima facie finding that Milan engaged in social security fraud when he applied for a Centrelink benefit on 20 September 1999.
56 Whether the 1988 agreement is a sham is to be determined on the balance of probabilities taking into account the gravity of the matter alleged. Counsel for Milan put to Milic that he had 'arranged' for the agreement to be created 'to ensure that the gifting by your parents of Stanley Street to yourself would not have adverse consequences for them in their application for aged pension'.[77] Milic denied this. Nothing further was put to Milic. If Milan intended to submit that the 1988 agreement is a sham that allegation should have been put squarely to Milic to provide him with an opportunity to respond to that allegation. Further, it should have been put to Milic that the 1988 agreement was in fact signed in May 1999 and that the date of 11 March 1988 was a fabrication to enable his parents to obtain pension payments which they would not otherwise have been entitled to receive. The failure of counsel to put these matters directly to Milic is understandable. If it had been put to Milic that the 1988 agreement is a sham this would have raised directly the question of whether Milan had knowingly participated in an arrangement to defraud the Commonwealth.
57 In addition to the failure to put directly to Milic the allegation that the 1988 agreement is a sham, there is another matter that weighs against making this finding. Milan's counsel did not point to any provision of Commonwealth legislation which supports a finding that by signing the 1988 agreement in May 1999 Milan and Milunka ensured that they would receive a full pension, which they would not have otherwise been entitled to. If there was a legislative rationale in May 1999 for backdating the gifting of Stanley Street to March 1988 it was incumbent upon Milan's legal representatives to have identified the relevant provisions and to have provided Milic and his legal representatives with an opportunity to address the question of whether Milic had any knowledge of such provisions in 1999. Assuming there was a legislative rationale in May 1999 for backdating the gifting of Stanley Street to March 1988, it was not put to Milic that he had knowledge of this legislative rationale.
58 Taking into account the gravity of the allegation that the 1988 agreement is a sham, the evidence falls well short of establishing on the balance of probabilities that the 1988 agreement was drafted and signed in May 1999. I accept Milic's evidence that the 1988 agreement was signed and dated on 11 March 1988 as recorded in the agreement. It follows that prior to Milan and Milunka making the 1992 promise they had already agreed in March 1988 to transfer legal title of Stanley Street to Milic in March 1998 provided he and Jasmina had not divorced during the preceding 10 years.
59 Although Stanley Street was transferred to Milic in May 1999 the transfer gave effect to an agreement dating back to March 1988. When Milan promised to bequeath Glenlyon Road to Milic in 1992 he had already promised to transfer Stanley Street to him. The transfer of Stanley Street in May 1999 does not support a finding that it is unlikely that Milan would have promised to bequeath Glenlyon Road to Milic in 1992.
60 Milan's counsel submits that if it had been agreed in 1992 that Glenlyon Road was to be bequeathed to Milic, a discussion to that effect would have taken place when Milic signed over his legal interest in Percy Street to Radunka in April 1993.
61 On 15 November 1976 Milan, Milunka, Milic and Radunka each executed a contract of sale for the joint purchase of 35 Percy Street, St Albans for $72,500.[78] The purchase was registered on title on 23 May 1977.[79] The family then resided at the property.[80] At this time, Milic was 17 years old. The Milenkovic family resided together at Percy Street until 1978 when Radunka married Rajko Nikolic and vacated the property.[81] In the early 1980s the family left Percy Street and relocated to Cecil Street, Fitzroy, a property which had been purchased by Milan and Milunka in February 1974.[82] In 1982 Milic and Jasmina moved into Highett Road.[83] The property consisted of a shop and a dwelling. Jasmina used the shop to conduct a hairdressing business which she operated from the premises from 1982 to 1988.[84]
62 Milic gave evidence, which I accept, that in 1986 the family entered into a verbal agreement for Percy Street to be transferred to Radunka, to own solely, subject to her servicing the existing mortgage.[85] At this time each family member was a registered proprietor[86] and the property was rented.[87] Milic agreed to this transfer.[88] As part of the agreement, Furlong Road was to be transferred from Radunka to Milan and Milunka in lieu of Percy Street.[89] Furlong Road had been purchased by Radunka and Rajko on 27 November 1980.[90] The arrangement was for Radunka to continue to collect rent from Furlong Road and use the rental payments as contributions to the mortgage at Percy Street. Once the mortgage was discharged, Furlong Road was to be transferred to Milan and Milunka.[91] Jasmina corroborated this evidence.[92]
63 Radunka confirmed that in the middle of the 1980s she agreed to continue paying the mortgage for Percy Street and that Milan had instructed her to use rent from Furlong Road towards the payment of the mortgage.[93] Radunka recalled that at the time she agreed to take over the mortgage it was between $45,000-46,000.[94] A bank statement from National Mutual records $45,000-$46,000 was owed between 1985 and 1986.[95] Radunka moved into Percy Street in 1986 and tenants then moved into Furlong Road.[96] Radunka acknowledged when giving evidence that she received a substantial benefit from receiving Percy Street, as at the time its net value was more than that of Furlong Road which she was to transfer to her father in return for Percy Street.[97]
64 The mortgage over Percy Street was discharged in May 1988.[98] At this time, Milan approached Milic and stated he wanted Radunka to retain both Percy Street and Furlong Road.[99] Milic agreed with this proposal and recalled stating to his father: 'As long as I'm looked after [in] the end I don't really mind'.[100] Milic received no consideration for this transfer. Milic recalled this occurring in 1992.[101] Milic gave evidence that he co-operated with the transfer of Percy Street to Radunka on the basis that Milan stated he 'would be looked after'.[102]
65 Despite paying off the mortgage in 1988, Radunka did not become the registered proprietor of Percy Street until 26 April 1993.[103] When asked to explain this delay, Radunka stated that she was in 'no hurry to register it'.[104] Radunka gave evidence that in 1999 Milan instructed her to transfer Furlong Road to her daughter, Natasha (now deceased).[105] Natasha became the registered proprietor of Furlong Road on 20 September 1999.[106] Radunka gave evidence that Furlong Road was transferred to Natasha in 1999 rather than 1993 (when Radunka became the registered proprietor of Percy Street) because Natasha was a minor at that time.[107] Percy Street continues to be owned by Radunka.[108]
66 Ownership of Percy Street was transferred to Radunka on 26 April 1993. However, the agreement that Radunka would take over the mortgage payments and be registered as the sole proprietor of Percy Street once the mortgage had been paid off, dated back to the mid-1980s.[109] The transfer of Milic's interest in Percy Street to Radunka in April 1993 gave effect to a longstanding agreement.
67 I reject the contention that it was inherently unlikely that the 1992 promise was made. In rejecting this contention I have placed weight upon the fact that Milic's evidence that the 1992 promise was made to him was corroborated by four witnesses: Mr Tom Savic, Mr Drago Susanj, Mr Petar Stojanovic and Mr Milutin Bogicevic.
68 Mr Tom Savic was called as a witness by Milic. Mr Savic is retired. Immediately prior to his retirement he was general manager, customised research at Roy Morgan Research.[110] Previously he had worked as a consultant for ASX 200 companies advising on marketing and strategic direction. Although he was called to give evidence by Milic, I do not consider him to have been a partisan witness. He gave evidence, which I accept, that he had a very close relationship with Milic since he was 15 years old.[111] Equally, he gave evidence that Radunka's son, Nenad, is married to his niece.[112] Further, Radunka's husband, Rajko, who is deceased, was a first cousin of Mr Savic's wife and they had previously lived in the same house in Rosanna.[113]
70 Mr Savic was the most impressive witness of all of the witnesses who gave evidence in the present proceeding. He was independent and even handed in giving his evidence. He had an excellent recall for detail, but did not embellish any aspect of his evidence. If he did not have a clear recollection of events or a subject matter he would say so. Mr Savic gave his evidence on 19 June 2024, the eighth day of the trial. His evidence, including evidence which was inconsistent with key aspects of Milan's defence to Milic's claim, was unchallenged. The timing of his evidence is significant. Mr Savic gave evidence prior to the ninth day of trial, 20 June 2024, when an application was made for an adjournment of the proceeding to allow for Milan to be assessed by a neuropsychologist to determine whether Milan was competent to provide instructions to his lawyers. When Milan's counsel sought the adjournment he stated that he had not had any doubts prior to 20 June 2024 regarding Milan's capacity to provide instructions.[116]
71 In an affidavit sworn 25 July 2024 in support of the application for the appointment of a litigation guardian, Milan's solicitor deposed:
72 A witness outline for Mr Savic was filed on 17 May 2023. The outline included the following:
73 Milan and his legal advisers were on notice of the substance of Mr Savic's evidence more than 12 months prior to the commencement of the trial. Prior to Mr Savic giving evidence on 19 June 2024 Milan's legal advisers had ample opportunity to take instructions from Milan about the matters set out in Mr Savic's witness outline.
74 Mr Savic gave evidence of a discussion he had with Radunka at the time Milic was undertaking the Glenlyon Road renovation: 'Radunka said she got Percy Street and Micky was doing this for himself'.[118] Mr Savic also gave evidence that Milan told him that he had given Glenlyon Road to Milic because he had given Percy Street to Radunka:
MR WELLS: What did you understand he meant by that, that he had given the property to Micky?
MR SAVIC: Exactly what he said, that he had given the property to Micky and - because he was talking about dividing the assets that he had equally amongst the family. So he had already given - he said he had given Radunka Percy Street. I don't know whether he had transferred it or whether there was any commercial - that wasn't what he was saying. He was talking about giving, 'I have given', in Serbian it is (speaks Serbian), 'We gave Percy Street, St Albans, to Radunka. We gave Micky this house.'...[119]
75 Mr Savic was not challenged on this evidence. Radunka was not asked any questions about any conversation between herself and Mr Savic. Radunka did, however, confirm that Mr Savic did attend family functions 'at the beginning' after 1993.[120] It is more likely than not that Radunka would have made the statement attributed to her by Mr Savic that she had received Percy Street and Milic was 'doing [Glenlyon Road] for himself'. Percy Street was purchased on 15 November 1976 for $72,500.[121] Radunka and Rajko purchased Furlong Road on 27 November 1980 for $38,000.[122] Radunka accepted that as part of the 1986 agreement for her to acquire Percy Street, Furlong Road was to be transferred to Milan and Milunka.[123] The transfer was to take place after Radunka had paid off the mortgage on Furlong Road using rental income from Furlong Road while she lived in Percy Street.[124] Subsequently, in 1999 Milan agreed that Radunka could transfer the property to her daughter Natasha rather than transferring the property to Milan.[125]
76 Percy Street was purchased for $72,500 on 15 November 1976.[126] Furlong Road was purchased for $38,000 on 27 November 1980.[127] Radunka agreed that she received a substantial financial benefit from receiving Percy Street in 1993.[128] Radunka also agreed that by 1993 when Milic started work on Glenlyon Road she had received far more in value from her parents by way of distribution of property than Milic.[129] In June 1976 Milan and Milunka purchased Radunka a flat at 12/33 Ballarat Road, Footscray as a gift.[130] This property was purchased for $13,000.[131] On 9 May 1989 a block of land at 3 Koala Court, Chelsea was registered in Radunka's name.[132] Radunka's evidence was that she 'helped out a little bit to pay towards it as well'.[133] The property was sold for $450,000 on 15 August 2011.[134] It is common ground that Radunka received the proceeds of sale.
77 When Radunka took over the mortgage on Percy Street in 1986 Milan and Milunka had been paying off the mortgage on the property since 1977. A bank statement for the mortgage account for Percy Street shows the balance of the mortgage as being $45,661.73 on 30 June 1986.[135] This is about the same time Radunka assumed liability for paying the mortgage. The mortgage was discharged on 26 May 1988.[136] Percy Street was valued for stamp duty purposes at between $105,000 to $110,000 when the property was transferred to Radunka in April 1993.[137]
78 In April 1993 the only property that had been distributed to Milic by his parents was 46 Andrea Street, St Albans. That property had been purchased for $19,950 in March 1975.[138] The property was mortgaged from 11 March 1975 until the discharge of the mortgage on 18 July 1984. Andrea Street, St Albans continued to be registered in the name of Milan and Milunka, but Milic received the proceeds of sale after the discharge of the mortgage. The property was sold for $41,000 on 2 July 1984.[139] Milic gave evidence that prior to the sale of Andrea Street he was servicing the mortgage over the property at the request of Milan. Initially, he stated that he started paying the mortgage in 1982 when he and Jasmina relocated to Highett Road, Highett.[140] He then gave evidence that he took over the mortgage payments when the family moved to Cecil Street in mid-1981.[141] It is common ground that Milic received the proceeds of the sale of Andrea Street after the mortgage had been cleared. The evidence as to the exact amount which he received is unclear. Initially, Milic gave evidence that he received 'some money' but could not recall the exact amount.[142] He then gave evidence that he had received $10,000 to $12,000.[143] Jasmina gave evidence that the net proceeds of sale of Andrea Street was between $10,000 to $15,000.[144] If the net proceeds had been between $10,000 and $15,000 this would mean that the mortgage when the property was sold in 1984 would have exceeded the original purchase price of $19,950. Milic gave evidence that the size of the mortgage increased after the property had been purchased because Milan drew down on the mortgage when he was under financial pressure in the 1970s and 1980s.[145]
79 It is unnecessary to express a concluded view about the amount received by Milic from the sale of Andrea Street. It is clear that the amount received was less than the sale price of $41,000. When Milic was cross-examined counsel did not put to him a specific amount as being the proceeds received by him after the sale of Andrea Street. In Milan's final written submissions counsel submitted that it was more likely that Milic had received $20,000 to $30,000 from the net proceeds of sale. Whatever the actual amount received by Milic after the discharge of the mortgage of Andrea Street, the amount was significantly less than the value of the properties which had been distributed to Radunka by April 1993 when Radunka was registered as the sole proprietor of Percy Street.
80 By 1993 Radunka had acquired ownership of Percy Street, valued for stamp duty purposes at $110,000 for an outlay of $45,000 (being the amount required to discharge the mortgage). In addition, she retained ownership of Furlong Road (which she subsequently transferred to her daughter Natasha rather than to Milan) and a block of land at 3 Koala Court, Chelsea. Radunka was able to use rental income from Furlong Road to pay off the mortgage on Percy Street.
81 Even taking into account the value of Stanley Street (which was not transferred to Milic until May 1999) the properties which had been gifted/distributed to Radunka by April 1993 exceeded the $20,000 to $30,000 which Milan's counsel submitted Milic received from the sale of Andrea Street and the value of Stanley Street. When Stanley Street was transferred to Milic in May 1999 Milan paid $6,460 stamp duty for the transfer based on a valuation of $180,000.[146] In 1993 when Percy Street was transferred to Radunka, the value of Milic's beneficial interest in Stanley Street would have been significantly less than $180,000.
82 I accept Mr Savic's unchallenged evidence that Radunka told him in 1993 that she had received Percy Street and Milic was 'doing this [Glenlyon Road] for himself'. This evidence supports a finding that Radunka was aware of the promise that her parents had made to Milic in 1992 to bequeath Glenlyon Road to him. This finding is inconsistent with Radunka's evidence that she was not told by her parents at any time that they intended to bequeath Glenlyon Road to Milic.[147] I reject this evidence. Radunka was not a reliable witness. Radunka sought to downplay the extent of Milic's contribution to the renovation of Glenlyon Road. Radunka claimed that she did not know over what period of time the renovation was undertaken.[148] This evidence is implausible. It is clear that Radunka had a close relationship with her parents throughout 1993 and 1994 and thereafter. I infer that Radunka regularly visited her parents' residence at Glenlyon Road. Milan and Milunka were living in the garage built by Milic in 1989 whilst the renovations were undertaken. Radunka would have observed first hand the work undertaken by Milic and the period of time Milic was working at the site.
83 Radunka gave evidence that Milic was not working regularly at Glenlyon Road and that he was undertaking work at Glenlyon Road in between other jobs he was working on.[149] I reject this evidence. It was not put to Milic that he was working on other jobs in 1993 and 1994 when he was undertaking the renovation at Glenlyon Road. Nor was it put to him that he was working at Glenlyon Road on an irregular basis.
84 Radunka also gave evidence that her parents told her that they were paying for the renovations.[150] However, they did not tell her how much they had paid for the renovation in total.[151] Radunka gave evidence that her parents paid 'all the tradesmen'.[152] I reject this evidence. It is inconsistent with evidence which I will address later in this judgment which supports a finding that Milic paid some of the tradespeople who worked on the site. Further, although giving evidence that her parents had paid for all of the building materials and all of the tradespeople Radunka gave no evidence which explained how her parents, who had relatively lowly paid employment, could have afforded to have funded all of the costs associated with the renovation which she accepted was 'extensive'.[153]
85 I do not accept Radunka's evidence as to when she first became aware that she would solely inherit Glenlyon Road. Milan and Milunka made wills in 2010 which bequeathed their entire estate to Radunka. Their previous wills made in March 2008 had divided their estate equally between Milic and Radunka. A subsequent will made by Milan in 2019 expressly stated that Milic was to receive no part of the estate. Radunka gave evidence that prior to 2019 she had no knowledge that she would solely inherit Glenlyon Road. I do not accept this evidence. The May 2010 will made significant changes to the March 2008 will. Under the March 2008 will Milic and Radunka were joint executors and trustees of the estate and shared equally in the distribution of the estate. Under the May 2010 will Radunka was the sole executor, trustee and beneficiary of the estate. It is common ground that by 2010 there had been a significant breakdown in the relationship between Milic and his parents and between Milic and Radunka's husband Rajko. It is highly unlikely that Milan and Milunka would have made significant changes to their wills in May 2010 bequeathing their entire estate to Radunka without having discussed those changes with her. The affect of the May 2010 wills was to double the size of Radunka's inheritance. It is highly unlikely that she would not have fully grasped the significance of this change. Radunka gave evidence that in 2010: 'They [Milan and Milunka] were upset with what's happening and they said they were going to change it, but I never thought about it'.[154] I do not accept this evidence.
86 Mr Savic gave evidence that when the Glenlyon Road works were being undertaken he visited the site '10 or 15 times, maybe more'.[155] His house was about 2 kilometres from Glenlyon Road.[156] He would drop into the site on a Saturday morning when his children were attending Serbian language classes at a nearby church.[157] When he visited, Milic was always at the site.[158] He observed various aspects of the work being undertaken:
MR SAVIC: I would see various aspects of the work that was being done. I was there when the concrete was being poured for the footings. I would see him - I don't know, putting in pipe for the upstairs toilet, roughing it in, maybe drilling holes in the wood and wiring up, putting the cables in to be wired up and that sort of stuff. Basically anything that was being done around there. Lots of different things. Often he would give my son a hammer and nails and he'd take a break, we'd had a cup of coffee and my son would be nailing away and, you know, then we'd leave him to his work. Sometimes I would stand there and talk while he was up on a ladder doing something. I wouldn't - sometimes he wouldn't let me into the work site because it might have been dangerous or whatever. So, you know, a lot of different things that were associated to building a property that size.
MR CLOUGH: On the times when you visited, was Milan Milenkovic there?
MR SAVIC: Often, yes.
MR CLOUGH: What was he doing?
MR SAVIC: Milan was probably like a third hand, he was always helpful, like, he might be holding - cleaning up, holding a shovel, cleaning up some mess or handing Micky some things, unloading a truck or something like that. So he was helping out in that nature.
MR CLOUGH: Did you see subcontractors working on site when you visited?
MR SAVIC: Yeah, often at various stages. I saw the brickies there, I saw the concreters when they were there. I saw, you know, various people working in there at various stages. I had been there sort of from, you know, when it first started till the job was finished. So I had seen various people working there which Micky was supervising and telling them what to do. So yeah.[159]
88 Mr Savic gave evidence that Milic told him that he was paying for the work because he was doing it for himself.[165] He gave evidence that Milic told him: '"I went and bought my mum a whole heap of kitchen appliances" at some place, St George and he had paid such and such amount of money for it. I don't recall the numbers. But I recall there was times when he was talking about what he had paid for various things but I didn't take much notice to be honest'.[166]
89 As to the duration of the project Mr Savic stated: 'Oh, must have been over a year, I can't remember'.[167] Milic told Mr Savic that he was doing the work 'because he was doing it for himself, it was going to be his place'.[168] Milic told him: 'It's got to be good, I'm doing the right thing. My parents will enjoy it but it's mine at the end'.[169]
90 None of the evidence set out above was challenged. The evidence, which I accept, supports the following findings. First, the duration of the project exceeded 12 months. Second, Milic was nearly always present on site undertaking work himself and co-ordinating the work of other tradespeople. Third, Milic contributed his own money to the cost of the project.
91 In final written submissions filed on behalf of Milan it was submitted:
Tom Savic, a retired former general manager at Roy Morgan gave hearsay evidence that Milic was paying for the Glenlyon Road renovation.[170]
92 Mr Savic's evidence was admitted without objection. Further, the hearsay rule does not apply to the evidence because Milic had been called to give evidence and Mr Savic was a person who heard the representation made by Milic that he was paying for the renovation: s 64(3)(b) Evidence Act 2008 (Vic).
93 Mr Savic gave evidence that Milan told him that Milic would receive Glenlyon Road. Mr Savic gave evidence of conversations he participated in with Milan and Milunka at his mother's house: 'Micky's parents would come down and they'd have coffee and Micky's parents would be talking about it as well, how the project was going and how it was all Micky's, Micky was doing a great job and how, you know, he was doing it for himself and how, you know, he was proud of the fact that he was giving his son some capability to do something'.[171]
94 Mr Savic gave the following evidence when asked to describe the words used by Milan as to why Milic was doing the work:
Milan's a hard worker and he came here with nothing and he achieved quite a bit, you know. He was proud of the fact that he was able to help his son in that way and that he had organised to give, I think the other property to Radunka, and this was Micky's in exchange. And he was doing his bit for the family. They worked as a family unit, as far as I could see. They all worked together and he was proud of the fact that he was actually helping out the family. He had something to hand down, he had achieved something in this country, he came here with nothing. So it was a bit of a bragging point but it was a valid one. He had worked hard all his life and he was in a way noting his own achievement and also the fact that he was giving it to his son ... He was adamant to try and appear that he was being fair to both sides of the family, to his daughter and to his son. And he was equally treating them. So he'd always say, 'I have given them Percy Street in St Albans and Micky's doing this.[172]
95 Mr Savic also gave evidence of discussions with Radunka and her husband Rajko. He gave evidence that when he asked Rajko why he was not helping Milic on the project he responded:
Well it's Milic's business, he's doing it for himself so why should I help'.[173]
96 Mr Savic also had a number of discussions with Radunka during which she stated that:
She got Percy Street and Micky was doing this for himself.[174]
...
I don't think - there was never actually any comment what was to happen about Glenlyon. It was always in the form it actually happened. When they would talk to somebody, to my parents, they would say, 'We have given Percy Street to Radunka and we have given Glenlyon to Micky.' It was never - it was going to happen, it was as if it had already happened. So there was never actually talk about it is going to happen, it was always in the tense that it already had happened.[175]
97 During cross-examination the following exchange took place:
MR WELLS: Mr Savic, am I right in understanding you yourself never heard Mr Milan Milenkovic, my client, say that he had given the Glenlyon Road property to Micky?
MR SAVIC: No, I said the opposite, I said he has given the property to Micky and that they've given Percy Street to Radunka.
MR WELLS: You heard him say that, did you?
MR SAVIC: Yes.
MR WELLS: When do you say he said that to you?
MR SAVIC: A number of times, I mean, when we met at Micky's Slava for example, he'd be talking about it to my parents - in front of me if my parents were talking about it. So it was quite often.
MR WELLS: Well, you knew at that time that they were still using that property as their principal place of residence?
MR SAVIC: M'mm.
MR WELLS: What did you understand he meant by that, that he had given the property to Micky?
MR SAVIC: Exactly what he said, that he had given the property to Micky and - because he was talking about dividing the assets that he had equally amongst the family. So he had already given - he said he had given Radunka Percy Street. I don't know whether he had transferred it or whether there was any commercial - that wasn't what he was saying. He was talking about giving, 'I have given', in Serbian it is (speaks Serbian), 'We gave Percy Street, St Albans, to Radunka. We gave Micky this house.' When that was happening in terms of - I've got no idea.[176]
98 When he was cross-examined it was not put to Mr Savic that any part of his evidence was false or that he was mistaken in his recollection that Milan had said that he had given Glenlyon Road to Milic. Milan and his legal representatives were squarely on notice of Mr Savic's evidence by his witness outline filed in May 2023. Mr Savic's unchallenged evidence strongly supports a finding that the 1992 promise was made to Milic.
99 Drago Susanj is a certified property valuer and an associate member of the Australian Property Institute.[177] He has known Milic since 1980. Milic and Jasmina became his godparents and his sister's godparents in about 1983.[178] During the 1990s he frequently socialised with Milic, at least five to six times a year.[179] He would socialise with Milan at Saint Day celebrations for Milan's family each January, but also at his parents' Saint Day celebrations and family functions.[180]
100 Although he was called to give evidence by Milic I do not consider Mr Susanj to be a partisan witness. He gave evidence, which I accept, that he 'always had the highest respect for Milan and the late Milunka'.[181]
101 Mr Susanj attended Glenlyon Road during 1993 and 1994 while construction was taking place. The construction was 'pretty extensive' and 'transformed the property'.[182] It was literally a total rebuild.[183] Mr Susanj described the project as 'a merchant quality build' where a builder is engaged to build something of a quality standard, individual to the owner's needs.[184] Mr Susanj visited the site three times during construction.[185] On one occasion he observed a plumber, carpenter and plasterer on site with Milic.[186] He saw Milic giving the plumber instructions to continue with the work he and Milic had been doing.[187] He did not have any discussion with Milan about who was paying for the project.[188] He knew that Milic spent a lot of time working on the project.[189] The duration of the construction project was about 12 months.[190] None of Mr Susanj's evidence set out above was challenged.
102 Mr Susanj also gave evidence of direct discussions with Milan regarding the ownership of Glenlyon Road. After the project had been completed Mr Susanj attended a Saint Day celebration in Keysborough and spoke to Milan. Mr Susanj said to Milan that he must be 'very proud and happy with the end result' and 'should be proud of Milic'. In response, Milan stated: 'It will be his anyway so why should I praise him'.[191] Mr Susanj had a distinct recollection of Milan telling him on two occasions: 'It will be his anyway'.[192] When he was cross-examined Mr Susanj repeated his evidence that Milan had said to him that Glenlyon Road 'will be his anyway'.[193] He also gave the following evidence: 'Specifically Milan had said to me that that house was for Milic and his children'.[194]
103 Mr Susanj was not challenged on his evidence that during and after the renovation of Glenlyon Road Milan had told him that Glenlyon Road was for Milic and his children. In final submissions filed on behalf of Milan it was submitted that Mr Susanj's evidence was hearsay evidence 'not of a promise to give Glenlyon Road, but merely of a statement that that's what Milic [sic] intended to do'.[195] I do not accept this characterisation of the evidence. Mr Susanj's evidence is evidence of a promise. Further, Mr Savic gave unequivocal unchallenged evidence that Milan had stated to him that Glenlyon Road had been given to Milic.[196] The evidence of Mr Susanj and Mr Savic is not hearsay evidence. It is evidence of direct conversations they had with Milan. Further, when the evidence was given on 19 June 2024 Milan was available to give evidence and was capable of giving instructions to his counsel.
104 Petar Stojanovic is a retired carpenter and is Milic's first cousin. His father is Milunka's brother. He visited Glenlyon Road often during 1993 and 1994.[197] He observed Milic doing a variety of jobs: carpentry, framework and assisting tradesmen.[198] He heard Milan and Milunka state in front of members of his family at their Saint Nicholas Day celebration 'Milic worked hard on that house because it is going to be his'.[199] Petar Stojanovic was not challenged on this evidence, save that it was put to him that anything Milan said about Glenlyon Road was on the basis of when Milunka and Milan passed away, who would inherit their assets.[200] This qualification is consistent with Milic's evidence that Milan promised to bequeath Glenlyon Road to him.
105 Milutin Bogicevic is a distant cousin of Milic's wife Jasmina.[201] He came to Australia from Serbia in May 1998 and has known Milic and Milan since that time. He gave evidence that the first time he met Milan at Glenlyon Road Milan told him that he was very proud of his house.[202] Milan also said to him: 'This is my property, I'm going to leave it to my son Micky'.[203] It was put to Mr Bogicevic in cross-examination that he was fabricating his evidence.[204] Mr Bogicevic denied this and said that Milan had subsequently repeated to him that he would leave Glenlyon Road to Milic.[205] I accept Mr Bogicevic's evidence. It is consistent with the unchallenged evidence of Mr Savic, Mr Susanj and Petar Stojanovic that they were told by Milan that Glenlyon Road would be given to Milic.
106 I accept Milic's evidence that in 1992 Milan and Milunka promised to bequeath Glenlyon Road to him if he renovated the property. In the following section of this judgment I set out in detail the works undertaken by Milic in 1993/94 and 2006 in reliance upon the 1992 promise.
107 It is common ground that between 1989 and 2006 extensive renovations were undertaken at Glenlyon Road. Work at Glenlyon occurred in three stages. A brick double garage and pergola were built in 1991.[206] The layout of the garage is marked 'double garage' in the top left corner of Figure 1 below. A major renovation and extension of the house was undertaken between April 1993 and July 1994.[207] This renovation extended the ground floor, adding the kitchen and dining/family room.[208] The renovation also added a second storey.[209] The second storey is marked 'first floor' in the top right corner of Figure 1. A further renovation was completed in 2006. That renovation involved enclosing the pergola and building a sun room and 'summer kitchen' adjacent to the garage.[210] The sun room and summer kitchen are marked 'Living' and 'Kitchen' attached to the garage/studio space located at the top right corner of Figure 1.
108 A floorplan of Glenlyon Road prepared prior to the sale of the property in September 2019 shows the full extent of the renovations:
Figure 1: Floor Plan of 285 Glenlyon Rd from Barry Plant promotional materials, Court Book 473.
109 The building guarantee for the 1993/1994 renovation was issued on 16 March 1993.[211] The plans for the renovation were approved by the City of Brunswick on 27 April 1993.[212] Works commenced at that time and continued for approximately 15 months.[213] The design was drawn up by Mr Kostic of Kostic & Associates.[214] Mr Kostic is a draftsman.[215] The design was 'not straightforward' and required an engineering computation.[216] The design involved an extension of the roof line beyond the pre-existing roof line.[217] The house was largely demolished and rebuilt aside from the two front rooms.[218] The ground floor was extended, adding the kitchen and dining/family room.[219] A second storey was added.[220] Milan and Milunka lived in a bedroom in the garage during the construction.[221]
110 The insulation in the old house was asbestos-laden.[222] Milic gave evidence that the asbestos had to be removed and cleaned by himself during the demolition of the house. Parts of the roof were removed. The asbestos was then removed and re-packed into multiple layers of bags. The bags then had to be taken to specialist tips.[223]
111 There were large bluestone boulders where the footings of the extension were to be dug.[224] These boulders had to be blasted using dynamite.[225] A blasting contractor was engaged[226] and the relevant permits and permissions were sought from the Council by Milic.[227] The blasting involved drilling and placing dynamite in the drill hole. Specialist blankets then had to be placed over the charge. A horn was sounded in warning of the blast before the charge was blown.[228] Milic could not remember the name of the blasting contractor.[229]
112 Many of the pre-existing timber floor joists and stumps were removed by Milic due to white rot and dry rot.[230] Holes were re-dug in the location of the old stumps and replaced with concrete and posts.[231] The concrete was levelled with a laser level.[232] Joists were then placed on top of the levelled concrete.[233] Mr Dragan Stojanovic gave evidence that he installed the stumps under the kitchen and dining room. He worked with Milic.[234]
113 Engineering computations were prepared for the framing and steel floor beams by Kostic & Associates.[235] A crane was hired and steel posts were ordered from a steel worker named Mick Kostic (now deceased).[236] The posts were installed by Milic using the crane by welding and screwing them into the bluestone boulders underneath the house. Mr Dragan Stojanovic gave evidence that he did work in relation to a steel beam that supported the roof.[237] He used a Hilti gun to shoot four-by-two timber with special nails that go through timber into steel.[238]
114 Milic gave evidence that the roof was entirely rebuilt.[239] New rafters were put in, both at the gabled entry and onto the roof of the house.[240] Milic stated that the roof was re-pitched to 38 degrees,[241] however the plans suggest that the roof extended along the original pitch line at 30 degrees.[242] The rafters were specially ordered for the house. Mick Dakic gave evidence that he and two apprentices assisted with the placement of the rafters. Mr Dakic demolished parts of the roof and extended the home using timber framing and roofing products. Mr Dakic and his apprentices worked at Glenlyon Road for over a week.[243] Aleksander Dukanac gave evidence that he also assisted Milic with the timber for the roof.[244] The roof was retiled by a contractor named 'John' and a team of contractors.[245] 'John' did not give evidence. The roof was retiled using terracotta tiles.[246] The fascia board, visible on the side of the house in Figure 4 below, was installed.[247] Insulation was installed by Milic, his father and his uncle.[248] The front of the house previously had a brick fence. Milic stabilised and rebuilt the brick fence.[249] The brick fence has since been removed and replaced with a white picket fence visible in Figure 2 below. This replacement was done after the 1993/1994 renovation and Milic was not involved with the picket fence.[250] Metal fencing was installed around the side and back of the house. The metal fence was organised by Milic.[251] The metal fencing is visible on the right-hand side of the front aspect in Figure 2. It continues along the side aspect of the house visible in Figure 3.
Figure 2: Screenshot from Google Maps depicting the front aspect of the house, Court Book 461.
115 The front aspect of Glenlyon Road is shown at Figure 2 above and Figure 4 below. Milic stated that the front façade was largely demolished aside from the framework.[252] The weatherboards were replaced and relined.[253] The chimney was demolished and rebuilt.[254] A stainless steel insert was placed inside the chimney as visible on the right side of Figure 2.[255]
Figure 3: Screenshot from Google Maps depicting the side of the house, Court Book 463.
117 The windows were rebuilt by Milic.[258] Some of the leadlight windows shown in Figure 4 below were ordered and replaced.[259] Automatic roller shutters were placed over the windows around the house, visible on the two gabled windows at the top of the house in Figure 4.[260] The weights in the old window sashes were taken out and restored by Milic before being placed back in the wall panel.[261] Aleksander Dukanac gave evidence that he also built up 'seats' for the windows.[262]
Figure 4: Photo of front aspect of house from Barry Plant promotional materials, Court Book 459.
118 Insulated floor blankets were installed.[263] The floor in the kitchen and dining rooms was tiled. The floor was waterproofed before the tiles were laid.[264] A contractor named 'Vlado' laid the tiles.[265] Vlado did not give evidence. The floor in the sitting room on the ground floor is hardwood. The sitting room is one of the original rooms of the house.[266] A photograph of that room is at Figure 5. Prior to the renovations, the room was carpeted. The carpet was pulled out. The hardwood flooring underneath was shaved, sanded, patched and polished by Milic.[267] A polishing machine was hired in order to complete the polishing.[268]
Figure 5: Photo of sitting room from Barry Plant promotional materials, Court Book 466.
Figure 6: Photo of upstairs room from Barry Plant promotional materials, Court Book 468.
120 The house was completely re-wired by an electrician.[271] Milic assisted with routing the wiring and instructed where power points and heating elements were to be placed.[272] Old light fittings were re-used in the front two bedrooms of the house.[273] New chandeliers and spotlights were installed throughout the remainder of the house.[274] The house was completely re-plumbed by John Brewer, the same plumber who assisted with the garage.[275] Plasterboard was installed along the walls.[276] Aleksander Dukanac gave evidence that he patched holes in the walls left by electricians.[277]
121 Decorative plaster work is visible throughout the interior of the house. An example of the plaster work as visible in the living room is located at Figure 7 below. The plaster work follows a consistent aesthetic style that creates a 'theme' throughout the house.[278] The plaster was installed by Milic and Mr Dukanac.[279]
Figure 7: Photo of living/dining room from Barry Plant promotional materials, Court Book 467.
122 Decorative plaster cornices shown in Figure 7 above were installed along the ceiling. They were up to half a meter wide and were made specially for the house.[280] Rosettes such as shown in the top left corner of Figure 7 were ordered to be made for the house and installed at the base of light fixtures.[281] Milic gave evidence that the plastering was difficult and 'took forever'.[282] Aleksander Dukanac acknowledged that the job was complex and high quality.[283] Lifting the large cornices required two people.[284] However, Mr Dukanac had done similar work before. He knew how to make the cornices and rosettes and he had 'no problems'.[285]
123 Milic gave evidence that a special mitre box had to be made by the plasterer (Mr Dukanac) because the tools available on the market would not fit the plastering work. A mitre box had to be made in order to cut the plaster at the correct angles.[286] Mr Dukanac could not recall if a special mitre box was constructed specially for the project.[287]
124 The whole house was painted by professional painters.[288] Two coats of paint and a sealer were required by an inspector.[289] Mr Dukanac patched cracks and sanded surfaces to prepare for painting.[290] The interior of the house was painted by Zoran Erovic. Milic gave evidence that Mr Erovic painted both the exterior and the interior of the house.[291] Mr Erovic stated that he only painted the interior.[292] This consisted of the walls, ceilings and some wood work.[293] Mr Erovic spent five days at Glenlyon Road performing this work.[294] There is no evidence in relation to who painted the exterior of the house.
125 The kitchen and dining rooms were not part of the original house. They were added when the floor plan of the house was extended.[295] The kitchen cabinets visible in Figure 8 were built and installed by Milic and a cabinet maker named Mr Vukasin.[296] The cabinets are made of whitewashed oak or ash.[297] Mr Vukasin did not give evidence.
Figure 8: Photo of kitchen from Barry Plant promotional materials, Court Book 469.
126 The staircase visible in Figure 9 below was rebuilt by a contractor with Milic's assistance.[298] The triangular leadlight window visible in the top left corner of Figure 9 was designed and ordered by Milic specifically for the enclave in which it sits.[299] The glass panelled door in the centre of the photo was restored by Milic.[300] The ceiling features a 'cathedral' style and is angled at 38 degrees.[301]
Figure 9: Photo of living room and kitchen from Barry Plant promotional materials, Court Book 465.
127 New sinks were fitted throughout the house, consisting of a laundry sink, a kitchen sink and two bathroom vanities.[302] The bathroom vanities were specially designed.[303] Three new toilets were fitted.[304] The cupboards throughout the bathrooms (as visible in Figure 10) were built and installed by Milic and Mr Vukasin. This included the carcasses and doors.[305] The materials were sourced by Milic and were made of either oak or ash timber.[306] They were designed to match the kitchen cabinetry.[307]
Figure 10: Photos of bathroom from Barry Plant promotional materials, Court Book 470.
128 The plans for the sun room project were designed by Milic. They were 'made up in [his] head' and he 'drew it up and slowly put it together'.[308] The sun room and summer kitchen were created by enclosing the pergola which Milic built in 1991 out of materials left over from the garage project.[309] To do this, Milic bought Canadian Oregon rafters for the roof.[310] The pergola had a hexagonal roof.[311] The cutting of the beams and rafters into the hexagonal shape required Milic to use precise joinery techniques.[312] Corrugated aluminium Colourbond roofing was installed by Milic. Lead flashings and gutters were installed. Milic lined the underside of the roof with pine.[313] He then painted the underside of the roof.[314]
129 Milic then 'bricked up' the walls and installed large windows.[315] The brickwork and large windows are visible in Figure 11 below. The sun room is the low brick building to the right of the photograph. Lining board was placed by Milic at the back wall, abutting the neighbour's garage.[316] The lining board was coated in clear paint in order to waterproof it.[317]
Figure 11: Photo of backyard, back of house and sun room from Barry Plant promotional materials, Court Book 464.
130 The terracotta tiled path visible on the lower right side of Figure 11 above was tiled by Jordan Vujic. Milic designed the pattern.[318] Mr Vujic used sand and cement mixed together to make the 'level'. He then layered a liquid type of concrete and cement. He then tapped in terracotta tiles.[319] It took Mr Vujic and another tiler (now deceased) two days to complete this work.[320]
131 A new kitchen and appliances were installed into the sun room.[321] At the time, Milic was involved in another building project that involved converting two apartments into one apartment. Part of that project required pulling out the kitchens. Milic sought permission from the building managers on this other site to install these kitchens into the sun room.[322]
132 Milic gave evidence that he installed a St George- or Amana-branded fridge and ice cooler.[323] A St George cook top and pyrolytic oven were installed.[324] He also gave evidence that a Brandt dishwasher was installed. A combination steamer and microwave was installed.[325] Jasmina gave evidence that the appliances were Kleenmaid. She stated that the appliances were bought through her sister, who was a franchisee of Kleenmaid at the time.[326]
133 To describe the works undertaken at Glenlyon Road as a renovation is a misnomer. In truth, save for the front two rooms, the house was completely rebuilt. In his opening submissions, counsel for Milan acknowledged that the renovation was 'extensive' and a 'very, very good renovation'.[327] Notwithstanding this submission, Milan sought to downplay the extent of Milic's contribution to the renovation work. In his opening submissions, Milan's counsel submitted: 'He assisted in obtaining the permit and the plans. He did some work on the property and may have arranged some third party commercial contributions'.[328] I reject this submission. I accept Milic's evidence set out above as to the work he undertook. I also accept Milic's evidence that he worked full time on the project from late April 1993 until July 1994.[329]
134 Milic gave evidence that when he agreed to undertake the renovation of Glenlyon Road in 1992 there was no discussion with his parents about who would be paying for the renovation.[330] As there was no agreement between Milic and his parents that he would pay for the renovation, to succeed in his claim based on a proprietary estoppel constructive trust it is not necessary for Milic to establish that he paid for the renovation. To succeed in his claim Milic must establish detrimental reliance upon the promise that Glenlyon Road would be bequeathed to him. Milic worked full time on the renovation for more than 12 months. This contribution of labour is sufficient, of itself, to constitute detrimental reliance. Detriment need not consist of expenditure of money or other quantifiable disadvantage, so long as it is something substantial.[331] Although Milic's claim is not dependent upon a finding that he paid for the renovation, it is necessary to address the issue of who paid for the renovation because it is relevant to the assessment of Milic's detrimental reliance upon the 1992 promise.
135 Milic contends that save for approximately $1,500 to $2,000 which Milan paid for 'incidentals', he paid for all of the 1993/1994 renovation of Glenlyon Road.[332] The written submissions filed on behalf of Milic summarised Milic's evidence of his expenditure as follows:
136 While there is dispute as to who paid for the items set out above, there was little, if any, dispute that each of the items identified by Milic as being matters in respect of which he incurred expenditure, were necessary items of expenditure to complete the renovation.
137 The only documentary evidence in relation to payments for the works undertaken at Glenlyon Road in 1993/1994 consists of two invoices from Reivers Industries dated 8 March 1994 which total $455.[334] There are no bank records in evidence which disclose that either Milic or Milan borrowed funds for the purpose of financing the 1993/1994 renovation. Counsel for Milan acknowledged in opening submissions that Milan did not borrow funds to undertake the renovations.[335] Similarly, it was not submitted on behalf of Milic that he had borrowed funds to finance the 1993/1994 renovations.
138 There is no direct evidence establishing the income of Milan and Milunka in 1993 and 1994. A group certificate for Milunka for the financial year ending 30 June 1996 is in evidence.[336] This discloses that her gross salary for that financial year was $31,841.14. An ATO notice of assessment for the financial year 30 June 1996 for Milan is also in evidence.[337] The notice of assessment records that for the year ending 30 June 1996 Milan had a taxable income of $27,669. I infer that Milan and Milunka's income for the period 1993/1994 would not have exceeded the amount disclosed for the financial year ending 30 June 1996.
139 During the course of opening submissions I observed that the renovation works undertaken at Glenlyon Road in 1993/1994 would 'easily have cost $75,000'.[338] This observation did not elicit any opposition from counsel. Rather, Milan's counsel responded: 'It was a very, very good renovation'.[339] Notwithstanding this submission, counsel for Milan subsequently cross-examined Milic on the basis that the cost of the renovations was only $40,000 as recorded in the building permit dated 27 April 1993.[340] Milic denied this, stating that it was standard practice for builders to underestimate the costs of works to minimise registration fees.[341] I accept this evidence. I reject the contention that the cost of the Glenlyon Road works in 1993/1994 was only $40,000. The building materials and labour costs to complete the 1993/1994 renovation would have been at least $75,000.
140 Milan and Milunka were in lowly paid employment in 1993/1994. They did not obtain finance to fund the renovations. There is therefore significant doubt as to how they could have afforded to have paid for all of the renovations. Equally, there are significant questions as to how Milic could have afforded to fund all of the renovations.
141 Milic gave evidence that during the 15 month period April 1993 to July 1994 he was working full time on the Glenlyon Road renovations. He gave unchallenged evidence that he had no income from any other work, save for his wife's (Jasmina) income who he was living with at the time.[342] He gave evidence that in 1993 Jasmina was working as a part time hairdresser occasionally.[343]
142 Prior to commencing the renovations Milic was working with the ACS. Milic was employed with the ACS from 16 June 1982 until he resigned on 11 November 1994.[344] During his employment with ACS Milic had extended periods of absence from work with ill-health. He developed difficulties related to breathing while working for ACS at the World Trade Centre.[345] From February 1990 until about January 1993, with the exception of a period of weeks or months from April 1990 to July 1991 he was absent from work due to ill health.[346]
143 On 5 March 1990 Milic made a claim for compensation in which he claimed incapacity for an allergic reaction to his nose aggravated by exposure to air conditioning at the World Trade Centre. Liability was admitted for periods of incapacity until 16 July 1990 when a determination was made denying liability. On 16 July 1991 this determination was affirmed. Milic sought a review of that decision by the Administrative Appeals Tribunal ('AAT') which resulted in a decision: Re Milic Milenkovic & Comcare.[347] The AAT decision records that when the decision was handed down by the AAT on 20 January 1993 Milic was in receipt of unemployment benefits.[348] Milic gave evidence in the present proceeding that after his workers compensation payments were terminated in mid-1990 he applied for and received unemployment benefits for a period of approximately two years.[349] Milic also gave evidence that prior to 20 January 1993 he had not received any income from ACS since mid-1991.[350]
144 In his final submissions Milic submitted that he had funds to pay for the 1993/1994 Glenlyon Road renovations from the proceeds of the sale of a property which he owned, Waratah Street, South Oakleigh and from savings.[351] Milic contends that he acquired Waratah Street in March 1990 notwithstanding that he was not registered on the title until 1 November 1993.[352] Milic says he acquired Waratah Street from the purchaser of his property, 16 Cabinda Drive, Keysborough as a swap for part of the purchase price. Although at face value this is a very unusual arrangement, Milic's evidence is supported by a letter from his solicitor Gerry Belleli & Co, dated 16 March 1990,[353] headed: 'Re: sale of 16 Cabinda Drive, Keysborough to Hammond & Lynch'. The letter records that after making allowance for payment of rates, the amount due to Milic at settlement was $182,947.10. The letter includes the following:
At settlement the above amount [$182,947.10] was dispersed as follows:
$123,117.10 to purchase of 51 Waratah Street, Oakleigh South
$1,500.00 to Gerry Belleli Trust Account to be held pending finalisation of works
$58,330.03 to NAB to discharge mortgage.[354]
145 The statement of adjustments attached to the letter states that after the discharge of a mortgage of $58,330.03 in favour of NAB over 16 Cabinda Drive there was a surplus of $7,530.04 to be distributed to Milic.[355] There is also a statement of adjustments in respect of Milic's purchase of Waratah Street which records the purchase price as $123,000.[356]
146 I accept Milic's evidence that he acquired Waratah Street in March 1990 and that he had clear title of the property when he sold the property on 15 October 1993 for $119,000.[357] I accept that a proportion of these funds was available for Milic to spend on the Glenlyon Road renovations in 1993 and 1994. However, I do not accept that he paid for most of the renovations. When Waratah Street was sold in October 1993 Milic had not had any income from paid employment since taking leave without pay from the ACS in March 1993. Prior to March 1993, save for a short period of time when he returned to work with ACS at 414 La Trobe Street, Melbourne following the decision of the AAT in January 1993, he had been receiving unemployment benefits. I do not accept that Milic would have been able to save money during this period of time. All of his income would have been required for the upkeep of his family and servicing mortgages over his residential property, 14 Cabinda Drive. The certificate of title for 14 Cabinda Drive[358] records two mortgages over the property which Milic was paying during 1993/1994:
147 The evidence of tradesmen who worked on Glenlyon Road in 1993/1994 supports a finding that some of them were paid by Milic and some by Milan. I am not satisfied that either Milic or Milan had the financial resources in 1993/1994 to pay for all of the costs of the renovation. It was much more likely that, consistent with the evidence of the tradesmen, Milic and Milan each paid a proportion of the costs of the renovation. Equally, I am not satisfied that either Milan or Milic had the financial resources to pay for all of the costs of the materials which were used in the 1993/1994 renovation.
148 Milic called Milan Dakic. Mr Dakic is a carpenter and builder. He undertook carpentry and demolition work at Glenlyon Road in 1993 for over a week.[359] He was engaged by Milic who directed him as to the work he was to undertake.[360] The building materials which he used were sourced by Milic who was on site every day.[361] Mr Dakic denied that it was more likely that he would have been paid by Milan than Milic.[362]
149 Milic identified several tradespeople who he engaged to work at Glenlyon Road in 1993/1994 but who were unavailable to give evidence. John Brewer who undertook plumbing work has relocated to Warrnambool.[363] 'Micha' the concreter has died.[364] Milic has lost the contact details for 'John' the roof tiler.[365] Mick Kostic the crane operator died 10 to 15 years ago.[366] Vlado Josic the tiler died 15-20 years ago.[367] Vukasin the cabinet maker has dementia.[368]
150 Petar Stojanovic is a retired carpenter who was called to give evidence by Milic. He gave evidence that he recommended to Milic that he use a subcontractor by the name of Vukasin to make the doors for Glenlyon Road. Mr Vukasin told Mr Petar Stojanovic that Milic had paid him for the work. Mr Vukasin was not available to give evidence because he has dementia.[369] The rule against hearsay evidence does not apply to Mr Petar Stojanovic's evidence that he was told by Mr Vukasin that he was paid by Milic: s 63(2)(a) Evidence Act 2008. Mr Petar Stojanovic's evidence corroborates Milic's evidence that he engaged Mr Vukasin and paid him to make all of the doors at Glenlyon Road.
151 Milan called four tradespeople to give evidence. Zoran Erovic undertook interior painting work in Glenlyon Road.[370] Milic asked him to do the work.[371] The job took five days.[372] He was paid $1,400 in cash by Milan.[373] Mr Erovic agreed that he would normally have charged $3,000 for the job but that he agreed with Milic to discount the price because he was Milic's neighbour.[374] Mr Erovic could not recall whether Milic had paid for the paint.[375]
152 Dragan Stojanovic is a carpenter and joiner who worked at Glenlyon Road for four days in 1994.[376] When he was working on the site the only other person working on the site was Milic.[377] He inserted steel beams to support the roof and installed the stumps underneath the kitchen, dining room and downstairs.[378] Milan was not on site because he was at work.[379] He denied that Milic paid him $5,000 for the work he did.[380] He said he did not charge for the work because 'he could not charge his uncle Milan'.[381]
153 Mirko Stankovic is a retired carpenter. He is 82 years old and retired at the age of 70. He gave evidence that he made interior doors and installed them at Glenlyon Road[382] but could not recall the year.[383] The building of the doors took one month and the installation took an additional two weeks.[384] Milan engaged him to do the work[385] and he reported to Milan.[386] He did not see anyone else on the site when he was installing the doors.[387] Milan paid him over $10,000 in instalments for the work he did.[388] In addition, Milan gave him money for materials.[389] He built and installed a total of 15 to 16 doors.[390] He gave evidence that Milan told him that he (Milan) had completely restumped the house, digging with pots and pans.[391] Mr Stankovic's evidence regarding Milan restumping the house is inconsistent with the evidence of Mr Dragan Stojanovic that he installed the stumps under the kitchen and the dining room with the assistance of Milic.[392] Mr Stankovic was shown photos of all the doors in the promotional material prepared for the sale of Glenlyon Road in September 2019. He accepted that he did not make any of the doors or cupboards shown in that material.[393]
154 I do not accept Mr Stankovic's evidence that he was engaged by Milan to build doors and cupboards at a cost of over $10,000 which was paid by Milan. No other tradesperson gave evidence that they had been engaged by Milan. Mr Stankovic's evidence that Milic was not on site for a two week period when he was installing doors is not credible. Nor is his evidence that Milan told him that he undertook restumping using pots and pans. No other witness gave evidence that Mr Stankovic was on site.
155 Aleksander Dukanac is a plasterer and carpenter. He gave evidence that he worked at Glenlyon Road for two weeks in 1994.[394] He returned to the site on a second occasion for about three days to prepare the property for painting.[395] The plastering was a complex and high quality job.[396] Milic brought him to site each day.[397] They were the only people on the site doing plastering work when he was on the site.[398] He acknowledged that Milic worked with him doing the plastering work some, but not all, of the time.[399] Milic was on site the whole time that he was on site.[400] Mr Dukanac did not know who paid for the materials which he used.[401] The materials included large Victorian style cornices and plaster rosettes. Mr Dukanac gave evidence that Milan paid him in cash after he completed the first round of work.[402] Milan also paid him in cash after he completed the second round of work.[403] He could not recall how much he was paid but he recalls that it was his cheapest price because he was doing the work for Milic's father.[404]
156 When giving evidence in chief Milic identified 'Alek the plasterer' as someone he had 'kicked off a building site' for stealing money and who would therefore refuse to give evidence on his behalf.[405] It was put to Mr Dukanac during cross-examination that his evidence was false and that he had a grudge against Milic because he had been sacked by him for stealing.[406] Mr Dukanac strongly denied this allegation.[407]
157 The evidence before the Court does not warrant a finding of fact that Mr Dukanac was sacked by Milic for stealing. There is ill-will between Milic and Mr Dukanac. This was apparent from the manner in which Mr Dukanac gave his evidence. However, this, of itself, does not warrant a finding that Mr Dukanac's evidence that he was paid by Milan should be rejected. It is noteworthy that Mr Dukanac did not give evidence that Milan had paid for the plaster cornices and rosettes which, I infer, would have cost thousands of dollars. Had he been motivated by a desire to damage Milic's case, he could have given evidence that Milan paid for the materials. The fact that he did not do so lends credibility to his evidence that he was paid for his labour by Milan.
158 Milic worked full time on Glenlyon Road for approximately 15 months from April 1993 until July 1994. He undertook this work in reliance upon the promise that had been made to him in 1992 that Glenlyon Road would be bequeathed to him if he undertook the renovation. Prior to commencing work on the renovation Milic had been working at the ACS. I accept his evidence that shortly after the AAT decision was handed down in January 1993 Milic returned to work at ACS's offices in La Trobe Street, Melbourne.[408] Milic gave evidence that the health issues which prevented him from working were due to an allergic reaction from working at the World Trade Centre. He did not suffer any allergic reaction from working at the ACS office at 414 La Trobe Street. I accept his evidence that following the AAT decision the ACS transferred him to 414 La Trobe Street.[409] Milic accepted a redundancy package in November 1994.[410] Correspondence from the ACS at the time of the termination of Milic's employment detailed his annual salary in November 1994 as being $34,848.[411]
159 Milic did not have any income from paid employment or government benefits during the 15 months he worked on Glenlyon Road. It is therefore possible to accurately quantify the amount of income which he lost by reason of forgoing the salary he would have received from the ACS if he had been working. Based on an annual salary of $34,848, during the 15 months he worked on Glenlyon Road Milic would have received $43,560. This loss of income is a detriment suffered by Milic acting in reliance on the 1992 promise. In addition, I am satisfied that Milic contributed a proportion of the costs of the renovation. It is common ground that the renovation was of high quality. Milan's counsel described the renovation as extensive and a very, very good renovation. I do not accept that the cost of the renovation could have been undertaken for $40,000 as recorded in the building permit. A cost of $75,000 for materials and labour is a conservative estimate.
160 It is not necessary to make a finding as to the exact amount of Milic's financial contribution to the project. I accept his evidence that when he agreed to undertake the renovation there was no discussion about who would pay for the renovation. Milan and Milunka promised to bequeath Glenlyon Road to Milic if he undertook the renovation. Milic did not agree to pay for the renovation in addition to providing his own labour. I accept that Milic suffered detriment by forgoing the income which he would have received if he had continued working for the ACS between April 1993 and July 1994. I also accept that he suffered detriment by contributing his own labour for approximately 15 months to undertake the renovation.
161 I have rejected the contentions of both Milan and Milic as to their respective financial contributions to the renovation. I reject Milic's contention that he paid for all labour and materials. Equally, I reject Milan's contention, which was supported by Radunka's evidence, that Milan paid for everything. That evidence is inconsistent with the unchallenged evidence of Mr Savic that he was told by Milic that he was paying for the renovation. It is also inconsistent with the direct evidence of Mr Dakic that he was paid by Milic and the evidence of Mr Petar Stojanovic that he was told by Mr Vukasin that Milic had paid him for the work which he did.
162 In 2006 Milan and Milunka asked Milic to construct a sunroom in the pergola at the rear of Glenlyon Road and to install a new kitchen into that room.[412] Milic gave evidence that the construction of the pergola required precise joinery techniques because it involved an hexagonal roof. Milic designed and constructed it himself.[413] The project took about seven to eight days. Milic worked mainly on the weekend because of other building jobs he was doing, so it took about a month and a half.[414]
164 Milic gave evidence that he paid for all of the materials for the sunroom. He gave evidence that he paid $3,000 for materials including timber, roof materials and paint.[418] He installed a high quality second hand kitchen he had salvaged from a building job he was working on, which he estimated had a market value of approximately $20,000.[419] He paid for the kitchen appliances: $5,500 for a refrigerator, $2,000 for a cooktop, $4,500 for a pyrolytic oven, $1,800 for a dishwasher, $3,000 to $4,500 for a steam combination oven.[420] Jasmina gave unchallenged evidence that Milic purchased appliances for the summer kitchen from her sister, who was a Kleenmaid franchisee.[421] Mr Savic could not recall the details of the 2006 renovation but did recall Milic talking about 'the top notch' appliances he had installed in the summer kitchen for Milunka.[422]
165 During the course of cross-examination the following exchange took place between Milic and Milan's counsel:
MR WELLS: You see, I suggest to you, Mr Milenkovic, that your evidence about having paid for basically all of the renovation at Glenlyon Road and also in relation to both the works that were done earlier, the double garage and the outdoor kitchen in 2006, that that is grossly exaggerated, if not a deliberate lie?
MILIC: Definitely not...
166 Although it was put to Milic that his evidence of his financial contribution to the construction of the summer kitchen was 'grossly exaggerated if not a deliberate lie', Milic was not asked any other questions about his evidence in relation to the construction of the summer kitchen. Nothing was put to Milic during cross-examination which laid the foundation for the proposition that his evidence in relation to the summer kitchen was grossly exaggerated, if not a downright lie. Further, Milic's evidence of his financial contribution to the summer kitchen was corroborated, at least in part, by the unchallenged evidence of Mr Vujic. It was also corroborated by Mr Savic who gave unchallenged evidence that Milic told him that he had purchased top of the range kitchen appliances for the summer kitchen.[423]
167 Milic gave unchallenged evidence that in 2006 his construction business was 'extremely successful'.[424] Milan and Milunka had both retired in the late 1990's. By 2006 their sole source of income was the aged pension. Milic's unchallenged evidence as to the success of his building business supports a finding that in 2006 he had capacity to pay the costs associated with the construction of the summer kitchen. Putting to one side the value of his own labour, the building materials and appliances, including the salvaged kitchen, had a value of approximately $50,000 in 2006.
168 Milan's outline of closing written submissions contain the following submission:
The greater likelihood is that Milic did the work on Glenlyon Road not on the strength of a promise, but in light of the assistance that he had already received from his father, and that he expected and did subsequently receive.[425]
169 I reject this submission. First, it was not put to Milic that he undertook the work on Glenlyon Road in return for the financial assistance or property that he had already received from Milan and which he expected and did subsequently receive. Rather, it was put to Milic that in 1992 he was absent from work with the ACS and that his parents simply asked him to use some of the time when he was not at the ACS to work on the renovation of Glenlyon Road.[426] It was put to Milic that when he was working on Glenlyon Road in 1993/1994 he would otherwise have been absent from the ACS because of the issues which led to the proceedings in the AAT.[427] Milic rejected this contention. His evidence, which I accept, is that he returned to work at the ACS shortly after the AAT decision in January 1993 and that he took leave without pay for the 15 months he was working on Glenlyon Road.
170 Second, I have made a finding that in 1992 Milic's parents promised to bequeath Glenlyon Road to him if he agreed to renovate the property. It is unlikely that Milic would have contributed his own labour and contributed to the cost of rebuilding Glenlyon Road if he was not relying upon the promise made to him.
171 I have set out earlier in this judgment my findings in relation to Milic's contribution to the construction of the summer kitchen in 2006. Milic gave evidence that he undertook the work on the summer kitchen because he believed Glenlyon Road was going to be left to him.[428] I accept this evidence. Milic built the summer kitchen in reliance upon the promise which had been made to him in 1992 that Glenlyon Road would be bequeathed to him if he renovated the house. When he constructed the summer kitchen he was making improvements to a property which he believed would eventually be his.
172 In order to make good his claim that Milan is estopped from resiling from the 1992 promise Milic must establish two things. First, that he acted in reliance on the promise. Second, that he changed his position to his detriment or would suffer detriment if the promise were resiled from.[429] Detriment may involve expenditure or labour on a property or may involve forgoing opportunities.[430]
173 The detriment suffered by Milic in reliance on the 1992 promise was substantial. He devoted 15 months of his working life to the renovation of Glenlyon Road. During that time he was not receiving income from any other employment or government benefits. Had he not been working at Glenlyon Road he would have earned approximately $45,000 with the ACS. He also made a financial contribution to the cost of construction, both by paying some of the tradespeople who worked on the site and by contributing to the cost of some of the materials. He subsequently built the summer kitchen in 2006 in reliance on the 1992 promise. This required 7 to 8 days of his labour and a financial contribution worth approximately $50,000.
174 Milan's counsel submitted that if Milic has an equitable interest in Glenlyon Road this may be satisfied in part or in full by events which post-date the completion of the Glenlyon Road renovation in 1994. He submits that if Milic had an equity in the property the equity was satisfied by the gift to Milic of Stanley Street in May 1999.[431] I reject this submission.
175 Under the 1988 agreement Milan and Milunka agreed to transfer Stanley Street to Milic in March 1998, provided he and Jasmina had not divorced. Nothing turns on the fact that the transfer did not occur until May 1999. In 1992 when Milan and Milunka promised to bequeath Glenlyon Road to Milic they had already agreed to transfer Stanley Street to him. There is no nexus between the promise to bequeath Glenlyon Road and the promise to transfer Stanley Street. If Milic had not agreed to undertake the renovation of Glenlyon Road, Milan and Milunka would still have been bound to transfer Stanley Street to Milic in accordance with the 1988 agreement.
176 The value of Stanley Street in May 1999, together with the $20,000-$30,000 that was received by Milic from the proceeds of sale of Andrea Street, did not exceed the value of the properties which had been transferred to Radunka by May 1999: Ballarat Road, Percy Street and Koala Court. Further, the transfer of Milan and Milunka's interest in Percy Street to Radunka had been subject to an agreement that Radunka's property at 213 Furlong Road, St Albans would be transferred to Milan and Milunka. In 1999 Milan waived this requirement and permitted Radunka to transfer Furlong Road to her daughter Natasha. I infer that Milan's decision to forgo the transfer of Furlong Road was linked to the transfer of Stanley Street to Milic. At the same time Milic received the transfer of Stanley Street (valued at $180,000 for stamp duty purposes),[432] Radunka received a significant financial benefit by being able to retain ownership of Furlong Road within her immediate family. Furlong Road was purchased for $38,000 in November 1980.[433] I infer that by 1999 the value of Furlong Road would have been similiar to the value of Stanley Street. The transfer of Stanley Street to Milic in May 1999 did not extinguish his proprietary interest in Glenlyon Road.
177 During the trial a considerable amount of evidence was led by both parties in respect of renovations undertaken by Milic at three properties other than Glenlyon Road: Furlong Road; Percy Street and 20 Beaver Street, St Albans ('Beaver Street'). It is common ground that Milic did undertake some renovation work on these three properties. The work on Furlong Road was undertaken in 1994/1995 when the property was owned by Radunka and Rajko. The work on Percy Street was undertaken in approximately 1996 when the property was owned by Radunka. The work on Beaver Street was undertaken in about 2008 when the property was owned by Radunka's son Nenad.[434]
178 Milic gave evidence that he undertook significant renovation of the three properties at his own expense. The extent of his contribution to the renovations, both in terms of time and money was strongly contested by Milan and Radunka.
179 I have concluded that in 1992 Milan and Milunka promised to bequeath Glenlyon Road to Milic in return for him undertaking renovations of the property. I have concluded that Milic relied on this promise to his detriment by working on the renovation project for 15 months, forgoing income he would have earned with the ACS, making a financial contribution to the cost of the renovation and then subsequently undertaking the construction of a summer kitchen in 2006. These findings provide the foundation for a finding that Milic has a proprietary interest in Glenlyon Road pursuant to a proprietary estoppel constructive trust. Any work undertaken by Milic on the other three properties subsequent to completing the renovation works on Glenlyon Road in July 1994 has no bearing on a question of whether Milic has a proprietary interest in Glenlyon Road pursuant to a proprietary estoppel constructive trust. There was no discussion between Milic and his parents at any time prior to the completion of the renovation of Glenlyon Road in mid-1994 to the effect that the fulfilment of the promise to bequeath Glenlyon Road to Milic was contingent upon him undertaking subsequent renovations of the properties in Furlong Road, Percy Street and Beaver Street.
180 The 1992 promise to bequeath Glenlyon Road to Milic is pleaded as follows:
PARTICULARS
The promise was oral and made Milan and Milunka [sic]. The promise was conditional upon Milic demolishing the house on the Property and building a new house on that site, using Milic's own money and time, as Milan and Milunka did not have the money to pay Milic. In the same discussion, they also told Milic that the Second Promise was additionally a reward for previous work he had done for Milan and Milunka, which Milic had done pursuant to the First Promise. Milic understood the Second Promise to be affirmation of the First Promise, recognition of the work Milic had done in goodwill towards the family pursuant to the First Promise, and a more specific form of the First Promise. Milan and Milunka reiterated the Second Promise to Milic shortly afterwards, in a family meeting that included Radunka. At that meeting, Milan and Milunka told Milic and Radunka that they were promising the Property to Milic because they had already given several gifts to Radunka and/or her children, including an apartment as a wedding present, payment of her wedding reception, a house in St Albans. Milan and Milunka also said that they were promising the Property to Milic because he had paid money to them to assist with their finance for the Property and other loans, he had paid for his own wedding when that was expected to be paid for by them, he had built the abovementioned garage on the Property. There was implicit mutual understanding between the members of the family, arising in those discussions and through their many interactions over the years since the First Promise, that Milic would not have felt goodwill towards his family or used his own money and time to perform work for the family, but for the First Promise, and that he would not continue to feel goodwill towards his family, or use his own money and time to perform work for the family, but for the Second Promise.[435]
181 The particulars of the 1992 promise do not refer to any discussion in 1992 between Milic and his parents that fulfilment of the promise to bequeath Glenlyon Road was contingent upon Milic undertaking renovations on other properties owned by family members subsequent to the completion of the renovation of Glenlyon Road. The particulars of the 1992 promise contend that 'there was an implicit mutual understanding between members of the family, arising in those discussions and through their many interactions over the years since the First Promise, that Milic would not have felt goodwill towards his family or used his own money and time to perform work for the family, but for the First Promise, and that he would not continue to feel goodwill towards his family, or use his own money and time to perform work for the family, but for the Second Promise'. The references to the 'Second Promise' is a reference to the 1992 promise.
182 Milic's counsel submitted that the pleading of an implicit mutual understanding was in aid of Milic's claim that the entire proceeds of sale of Glenlyon Road are held for his benefit under a joint endeavour constructive trust.[436] Even if there was an implicit mutual understanding of the type pleaded by Milic, there is no basis for finding that the proceeds from the sale of Glenlyon Road are held for Milic's benefit under a joint endeavour constructive trust. An essential element of a joint endeavour constructive trust is the acquisition of an asset in the course of and for the purposes of the joint endeavour.[437]
183 Glenlyon Road was not acquired in the course of, or for the purposes of, a joint relationship or endeavour between Milan, Milunka and Milic. It is common ground that Glenlyon Road was purchased by Milan and Milunka as joint proprietors in February 1984.[438] When Glenlyon Road was acquired in 1984 there was no joint endeavour or relationship between Milan, Milunka and Milic for the purposes of which Glenlyon Road was acquired. I reject Milic's contention that the proceeds of sale of Glenlyon Road are held for his benefit pursuant to a joint endeavour constructive trust.
184 The evidence in respect of Milic's contribution to the renovations of Furlong Road, Percy Street and Beaver Street does not support his claim that he has a beneficial interest in the proceeds from the sale of Glenlyon Road under a joint endeavour constructive trust. Nevertheless, the documentary evidence in relation to Beaver Street does reflect adversely on Milic's credit as a witness. It is common ground that Milic put time and effort into the renovation of Beaver Street.[439] The extent of his expenditure of his own funds on the project was disputed.
185 Milic gave evidence that he paid for tiles, plaster, underlay, nails, solid plaster, glue and stirrups for the roof.[440] He gave evidence that he paid 'about $20,000 all up' for materials.[441] Milic also gave evidence that he paid two tradesmen who worked on the site: Milutin Bogicevic (to assist with framing and plastering) and John Cucpic (to undertake tiling).[442] Milic's evidence that he paid the tiler John Cucpic and paid $3,000 for tiles is contradicted by invoices and records of payment produced by Radunka recording payments which she made. Radunka produced a Credit Union account statement for February and March 2007 recording the following payments for tiles:
186 In addition, Radunka produced a handwritten note recording payments of $3,700 and $548 paid for tiling at Beaver Street.[444] Radunka also produced an undated invoice from 'John the tiler' for tiling at Beaver Street and Percy Street for $3,700.[445] Radunka also produced a handwritten note made by Rajko recording that he had paid Milutin Bogicevic $250 and that Milutin was owed payment for four days work.[446]
187 Based on this documentary evidence I do not accept Milic's evidence that he paid Mr Bogicevic and Mr Cucpic. I also do not accept his evidence that he paid $3,000 for tiles for Beaver Street.
188 Milan's counsel submitted that in light of the discrepancy in respect of Beaver Street between the documentary evidence and Milic's evidence of payments he said he made for materials, the Court should reject his evidence that he paid for any of the work at Glenlyon Road.[447] I do not accept this submission. There are significant differences between the Glenlyon Road renovation and the renovation of Beaver Street. Glenlyon Road was a much larger project. The significant scale of the project and the fact that Milan and Milunka were in low paid employment supports a finding that it is unlikely that they would have had the financial resources to pay for all of the labour and materials. Second, Milic undertook the renovations at Glenlyon Road in circumstances where he had been promised that the property would ultimately be his. This provided him with an incentive to undertake a high quality renovation and contribute to the cost of the renovation. Third, his evidence that he paid for materials is corroborated by Mr Savic, who I found to be a very credible witness. Fourth, his evidence as to the particular payments which he made in respect of the construction of the summer kitchen in 2006 was not meaningfully challenged. Fifth, I am satisfied that Milic did have financial resources in 1993 and 1994 from the sale of Waratah Street to have made a contribution to the cost of materials for the renovation project.
189 On 22 May 2024, the second day of the trial, Milan was granted leave to file a second further amended reply and defence to counterclaim ('SFAD') to plead a defence of laches. The SFAD was filed on 27 May 2024. Milan pleads two forms of laches. First, that Milic's conduct amounted to acquiescence and consent to Milan and Milunka having the whole of the legal and equitable interest in the freehold title to Glenlyon Road.[448] Second, that by failing to file his counterclaim until 24 August 2021 Milan's ability to defend the counterclaim has been seriously prejudiced.[449]
190 Milan contends that Milic's letter of 14 January 2009 constitutes acquiescence and consent to Milan and Milunka having the whole of the legal and equitable interest in Glenlyon Road. The 14 January 2009 letter commences with the following statement:
I Milic Milenkovic of 14 Cabinda Drive, Keysborough 3173 with this letter Renounce my inheritance in the house of my Parents which is located at the address 285 Glenlyon Road, East Brunswick.
191 The letter also includes the following: 'Also enclosed with this is a copy from the sale of the house in Konvaluk, Kraljevo which I also publicly Renounce [sic], it had to be on a copy because that is what I received from you and the original you gave to Rajko Nikolic (that is according to our agreement because Radunka Nikolic demanded this once a long time ago and now that is not enough, like the other inheritance already received)'.[450]
192 Further, the letter states: 'If Dad hadn't blurted and said that you signed Brunswick over to Radunka and Rajko I would never even have known that you could've easily lied to me more, harassed and criticised and Radunka to have used me to the end of my life. But according to you I'm a liar, a bloodsucker and total user and what I say is a lie. That is why you insisted that I make a room and a bathroom in the garage before I find out the truth so that Radunka and Rajko would have better use of that. Good luck to everyone with that damned property'.[451]
193 Milic claims an interest in Glenlyon Road pursuant to a proprietary estoppel constructive trust. Milan and Milunka promised to bequeath Glenlyon Road to Milic if he agreed to undertake renovations of Glenlyon Road. Milic relied on that promise to his substantial detriment by working on the property for 15 months between April 1993 and July 1994, forgoing income from the ACS and contributing to the cost of the renovation. A proprietary estoppel creates an interest in land.[452] Milic's interest in Glenlyon Road as a beneficiary of a proprietary estoppel constructive trust came into existence at the time of the conduct which gave rise to the trust.[453] Milic's interest in Glenlyon Road came into existence when he relied upon Milan and Milunka's promise to his detriment. By July 1994, having worked on the renovation for 15 months, he had a proprietary interest in Glenlyon Road.
194 Milic's claim is not based on breach of contract. Nor is his claim dependent upon the terms of Milan and Milunka's wills. His claim is to recover the proceeds of sale of trust property, 285 Glenlyon Road. Milic's letter of 14 January 2009 does not constitute consent or acquiescence to Milan and Milunka having the whole of the legal and equitable interest in Glenlyon Road to the exclusion of his interest in Glenlyon Road under a proprietary estoppel constructive trust. That interest exists independently of any contingent interest which Milic had under Milan and Milunka's wills when he wrote the 14 January 2009 letter.
195 Further, Milic's conduct subsequent to January 2009 is inconsistent with him having acquiesced and consented to Milan and Milunka having the whole of the legal and equitable interest in Glenlyon Road. In 2011 Milic travelled to Serbia to meet his parents. During a meeting with his father he discussed the fact that Radunka had been given a half share in Glenlyon Road. Milic attempted to persuade his father to comply with the 1992 promise to leave the whole of Glenlyon Road to him.[454] If the 14 January 2009 letter did constitute acquiescence and consent to Milan having ownership of the whole of the legal and equitable interest in Glenlyon Road to the exclusion of Milic's proprietary interest, the acquiescence and consent concluded in 2011 when Milic met his father in Serbia.
196 Milan also contends that the defence of laches applies to Milic's claim by reason of the 11 year delay between 2008 (when he became aware that Milan had bequeathed 50% of Glenlyon Road to Radunka) and 2019 (when Milic lodged a caveat on the title of Glenlyon Road).[455] Milan submits that during that period:
(a) Milunka has developed dementia and subsequently died;
(b) Milan's mental capacity has declined to the point that he is unable to give evidence;
(c) Rajko Nikolic has died;
(d) documentary [sic] relating to alleged expenditure, in particular bank statements and other financial records, are no longer available; and
(e) numerous witnesses who worked on or could attest to work done at Glenlyon Road have either died or lost capacity, or cannot be found.
197 In Lindsay Petroleum Company v Hurd[456] Lord Selborne stated:
Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.[457]
198 In Fysh v Page[458] the plurality stated:
If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the oppose party, these are matters which may suffice to answer the prima-facie grounds for relief.[459]
199 In Orr v Ford,[460] Deane J noted the 'intentionally imprecise' nature of the defence of laches, and observed that it:
involves not merely considerations of the period of the relevant delay but...invokes the traditional notions of equity and good conscience which are the general determinants of whether a plaintiff should be refused relief by reason of laches in the circumstances of a particular case ... the phrase refers to circumstances where inaction or standing by (with knowledge) by a plaintiff over a substantial period of time assumes an aggravated character in that it will, if the plaintiff is granted the relief which he seeks, give rise to serious and unfair prejudice to the defendant or a third party.[461]
200 Whether laches is made out requires consideration of:
(a) the extent of delay, which involves an evaluative judgement insofar as delay is constituted by:
the period of time beyond that within which, in ordinary expectation, the act in question should have been done. In quantifying delay it is necessary to determine what time is ordinarily to be allowed for the doing of that which is in question. It is only the time beyond this which, in the strict sense, represents delay...[462]
(b) the time from which the reasonableness of a plaintiff's delay is assessed is the time at which the plaintiff became aware of the facts that constituted the right in respect of which equitable relief is claimed;[463]
(c) what is done by the plaintiff short of instituting proceedings in the alleged period of delay is a relevant consideration;[464]
(d) the Court looks to the prejudice caused throughout the entire period since the cause of action accrued;[465]
(e) regarding prejudice suffered by way of loss of evidence, the majority in Orr noted:
The question of prejudice resulting from unavailability of evidence necessarily involves some degree of speculation, but it is not a question of pure speculation. The issue is not whether evidence may have been lost but whether evidence which may have cast a different complexion on the matter has been lost.[466]
(f) the type of transaction and, relatedly, the complexity of potential litigation is a relevant matter to consider in determining whether laches is made out.[467]
201 Before addressing the question of delay it is important to identify the matters which underpin Milic's claim for the proceeds of the sale of Glenlyon Road. Milic had a proprietary interest in Glenlyon Road under a proprietary estoppel constructive trust from July 1994. Between July 1994 and September 2019 Milan and Milunka were the registered proprietors of the trust property. Milic did not have a claim for the proceeds of sale of Glenlyon Road in March 2008 when Milan bequeathed 50% of Glenlyon Road to Radunka because the property was not for sale. Between March 2008, when Milan made a new will, and September 2019, when Glenlyon Road was sold, Milan retained ownership of the trust property. His testamentary intention in March 2008 to bequeath 50% of Glenlyon Road to Radunka was inconsistent with the 1992 promise he made to Milic, which underpins Milic's interest in Glenlyon Road under a proprietary estoppel constructive trust. However, Milic did not have knowledge of the facts which underpin his claim for recovery for the proceeds of sale of Glenlyon Road until 2019 when he became aware that the property was for sale. As soon as Milic became aware of this he placed a caveat on the Glenlyon Road title. On this basis, the time for assessing any delay by Milic should be assessed from 2019, rather than 2008, when he became aware that Milan had bequeathed 50% of Glenlyon Road to Radunka.
202 If the analysis set out above is incorrect the earliest date from which delay should be assessed is 2011, when Milic met Milan in Serbia and asserted a right to receive all of Glenlyon Road. It is common ground that Milunka lost cognitive capacity in 2010 due to dementia and then subsequently died in 2020.[468] Even if proceedings had been commenced immediately after Milic met Milan in Serbia in 2011, Milunka would not have had capacity to give evidence.
203 It is common ground that by virtue of s 21(1)(b) of the Limitations of Actions Act 1958 Milic's claim, based on a proprietary estoppel constructive trust, is not subject to a limitation period. Section 21(1)(b) relevantly provides that no limitation period prescribed by the Act applies to an action by a beneficiary under a trust to recover from the trustee proceeds of trust property in the possession of the trustee. Although Milic's claim is not subject to a limitation period, if a limitation period did apply that period would not have expired until some time in 2017 assuming that time commenced to run in 2011 when Milic and Milan met in Serbia.
204 Rajko Nikolic died on 5 October 2015. He died within four years of Milic meeting Milan in Serbia. Further, any evidence which Rajko might have been able to give on the question of whether the 1992 promise was made to Milic would not have been of any more probative value than the evidence of Radunka. Any evidence he might have given would not have altered my finding that the 1992 promise was made.
205 Milan's counsel submits that documentary evidence relating to alleged expenditure, in particular bank statements and other financial records, is no longer available. The transaction at the heart of the proceeding is the renovation of Glenlyon Road in 1993/1994. A period of 17 years had lapsed between the completion of the renovation in July 1994 and 2011 when Milic met Milan in Serbia. The absence of documentation in respect of the financing and construction of Glenlyon Road has had an adverse effect on the Court's ability to make definite findings as to the respective financial contributions of Milic and Milan to the Glenlyon Road renovation. The absence of documentation is relevant to the Court's assessment of the detriment suffered by Milic in reliance on the 1992 promise. However, the absence of documentation has had no bearing on the Court's ability to make a finding as to whether the 1992 promise was made. Nor has it had any bearing on the Court's ability to make a finding as to whether Milic suffered substantial detriment in reliance on the 1992 promise by reason of having worked on the renovation project for approximately 15 months.
206 Milan's counsel submits that numerous witnesses who worked on or could attest to work done at Glenlyon Road have either died or lost capacity or cannot be located. Paragraph 22(c)(iii) of the SFAD identifies five individuals who died prior to the commencement of the trial: Radivosi Maksimovic; Zoro Krevaski; Vlado Josic; Milos Milenkovic and Savo Loncarevic. Milic gave unchallenged evidence that Vlado Josic died 15 to 20 years ago.[469] There is no evidence as to when the other individuals died. The extent of the involvement on the Glenlyon Road site of Messrs Maksimovic, Krevaski, Milenkovic and Loncarevic was not put to Milic in cross-examination. Milan bears the onus of establishing the prejudice which he contends he has suffered as a consequence of Milic's delay.[470] He has failed to establish that the unavailability of the witnesses referred to above was a consequence of unreasonable delay on the part of Milic.
207 Assuming that the assessment of the reasonableness of Milic's delay commences in 2011 when he returned from meeting his father in Serbia, there are two additional factors which militate against a finding that Milic's delay was unreasonable. First, there is no evidence to support a finding that prior to the commencement of the proceeding Milic was aware that Glenlyon Road would be left solely to Radunka. Rather, the evidence supports a finding that, at all relevant times post-March 2008, Milic believed he was to inherit 50% of Glenlyon Road. It is one thing for Milic to have refrained from bringing proceedings in circumstances where he believed that he stood to inherit 50% of a valuable property. It is quite a different matter for him to have refrained from bringing proceedings if he understood that he was to receive no part of Glenlyon Road. Second, when considering the reasonableness of Milic's delay in making his counterclaim, it is reasonable to take into consideration the fact that any proceeding commenced by Milic between 2011 and 2019 would have required him to sue his mother. It is clear that the relationship between Milic and Milan post-2008 was very strained and somewhat tempestuous. There is no evidence that Milic had a poor relationship with his mother. Mr Savic gave evidence, which I accept, that he spoke to Milunka when he accompanied Milic to visit his parents in Serbia in 2011: 'Milunka was a little bit distressed and she was at pains to tell me that she had nothing to do with what was going on'.[471]
208 I accept Milic's counsel's submission that the tenor of Milic's evidence was that he had a deep affection for his mother. It is reasonable for Milic to have refrained from commencing legal proceedings against his mother, particularly as she was in decline post-2010 with dementia.
209 I reject Milan's contention that Milic should be denied relief by reason of laches. Until the sale of Glenlyon Road in 2019 Milan retained ownership of the trust property in which Milic had a proprietary interest by reason of a proprietary estoppel constructive trust. Milic pleaded estoppel in response to a claim for declaratory relief commenced by Milan. There was no delay by Milic in pleading estoppel. If I am wrong, and there was delay on Milic's part, the delay was not unreasonable and did not result in the loss of evidence which may have resulted in a different finding as to the three key elements of Milic's claim based on a proprietary estoppel constructive trust:
(i) Whether Milan and Milunka made the 1992 promise;
(ii) Whether Milic relied on the promise; and
(iii) Whether Milic did so to his detriment by working on the Glenlyon Road project for 15 months, forgoing income he would have earned with the ACS and contributing to the cost of the renovation.
210 Milic contends that in late 1989 Milan and Milunka promised him that he would inherit their entire estate if he built a double brick garage and pergola[472] ('first promise'). It is common ground that in about 1989 Milic invested time and effort into the construction of a large double brick garage and pergola at Glenlyon Road. The amount of time and the nature of the effort and the extent of expenditure by Milic are all matters in dispute.[473]
211 It is unnecessary to address in detail the evidence in relation to the first promise. In particular, it is unnecessary to address the evidence which was led regarding the extent of Milic's contribution of labour and money to the construction of the garage and pergola. I am not satisfied that Milan and Milunka made the first promise. I consider it unlikely that Milan and Milunka would have promised to bequeath their entire estate to Milic in 1989. First, I have accepted Milic's evidence that the 1988 agreement records a gift of Stanley Street to Milic. Although legal title to the property was not transferred to Milic until May 1999, he was the beneficial owner of Stanley Street from March 1988. It is unlikely that Milan and Milunka would have offered to bequeath their entire estate to Milic twelve months after gifting Stanley Street to him.
212 Further, it is unlikely that Milan and Milunka would have agreed to bequeath their entire estate to Milic in return for him building a garage and a pergola. In 1989 Milic was working full time for the ACS. Unlike the work which he undertook in 1993/1994 he did not work full time on the construction of the garage and pergola in 1989. Further, the scale of the construction of the garage and pergola was relatively insignificant compared to the scale of the renovation which he undertook in 1993 and 1994. It is plausible that in 1992 Milan and Milunka would have offered to bequeath Glenlyon Road to Milic in return for him agreeing to undertake a very substantial renovation of Glenlyon Road which would require a significant investment of his time and effort. However, the same cannot be said in relation to his agreement to construct a garage and pergola.
213 Given the inherent unlikelihood of Milan and Milunka making the first promise, I would not be satisfied that the promise was made unless other witnesses corroborated Milic's account. Both Mr Savic and Mr Susanj corroborated Milic's evidence that the 1992 promise was made. However, neither gave any evidence corroborating Milic's contention that the first promise was made. In light of the inherent unlikelihood of the first promise having been made and the absence of any corroborating evidence, I am not satisfied that the first promise was made.
214 In Harris v Harris[474] the Court of Appeal summarised the principles which apply when determining the proper remedy in a case of proprietary estoppel:
In summary, then, the authorities establish that in determining the proper remedy in a case of proprietary estoppel:
- the promisee is prima facie entitled to have the promisor held to the promise or expectation, ie the relief which is necessary is 'usually' that which reflects the value of the promise;
- the court will then consider all the circumstances to determine whether it is necessary to mould or modify the relief to avoid going beyond what is required for conscientious conduct, or to avoid injustice to others. The equity may be satisfied in another more limited way where a plaintiff's expectation or assumption is uncertain, or extravagant, or out of all proportion to the detriment suffered;
- proportionality is a relevant consideration, but it should not be viewed as a 'necessary constitutive element' to be proved by the party seeking relief;
- the character of the promise/expectation is also a relevant consideration, including whether it is vague or imprecise;
- while the character of the detriment is a relevant consideration, the exercise is not one of 'weighing detriment too minutely in order that it be converted into some equivalent of cash or kind', nor does it require 'substantial correspondence' between the expectation and the monetary value of the detriment. The detriment should also not be treated as 'consideration' for the proprietary interest;
- the detriment need not consist of expenditure of money or other quantifiable financial disadvantage, so long as it is something substantial.[475]
215 Consistent with the principles set out above, Milic is prima facie entitled to relief which reflects the value of the promise made to him in 1992 that Glenlyon Road would be bequeathed to him. The value of that promise equates to the $1.83 million realised from the sale of Glenlyon Road, together with any accrued interest held in the trust account of the second defendant. It is necessary to consider all of the circumstances of the case to determine whether if Milic received all of the proceeds of the sale of Glenlyon Road this would exceed what is required for conscientious conduct, or would result in injustice to third parties.[476]
216 Milic's expectation based on the 1992 promise that he would receive the whole of Glenlyon Road was neither uncertain nor extravagant. An unequivocal promise was made to him in 1992 that he would inherit the whole of Glenlyon Road. He acted in reliance of that promise to his substantial detriment. He worked full time on the project for 15 months, forgoing income he would otherwise have received if he had been working for the ACS. He contributed directly to the cost of the renovation in 1993/1994 and again in 2006 when he built the summer kitchen. Milic's entitlement to the whole of the proceeds of sale of Glenlyon Road is not out of all proportion to the detriment he suffered. The detriment was substantial. It stands in stark contrast to the example given by Nettle JA in Donis v Donis[477] of a party not being held to a promise to transfer property worth $1 million in return for the promisee having outlaid a couple of hundred dollars in construction of a shed on land.[478]
217 Milan submits, referring to the judgment of Nettle JA in Donis, that Milic did not make 'life changing decisions with irreversible consequences of a profoundly personal nature'.[479] Donis is not authority for the proposition that a promisor will only be estopped from resiling from a promise if the promisee has suffered detriment in the nature of life changing decisions with irreversible consequences of a profoundly personal nature. Rather, Donis is authority for the proposition that detriment need not consist of expenditure of money or other quantifiable financial advantage so long as it is something substantial.[480] Milic's contribution of his own labour over a period of 15 months constitutes substantial detriment. This finding is reinforced by his financial contribution to the renovations in 1993/1994 and the construction of the summer kitchen in 2006 as well as loss of income from ACS which he could otherwise have earned in 1993 and 1994.
218 It is necessary to address the proportionality of the interest claimed by Milic in the proceeds of the sale of Glenlyon Road compared to the detriment which he suffered. It is common ground that of the $1.83 million realised from the sale of Glenlyon Road approximately $1.5 million is attributable to the value of the land.[481] The increase of the value of Glenlyon Road since the renovations were undertaken in 1993/1994 is largely attributable to the increase in the value of the land as distinct from the capital improvements undertaken by Milic. The proportionality of Milic's claimed interest in 100% of the proceeds of sale relative to his contribution of labour and money to the renovations is a relevant consideration and may be of considerable importance when assessing whether it would be unconscionable for Milan to resile from his promise to bequeath Glenlyon Road to Milic.[482]
219 In Delaforce v Simpson-Cook[483] Allsop P made the following observations regarding the issue of proportionality:
220 Although the majority of the $1.83 million realised from the sale of Glenlyon Road is attributable to the increased value of the land, it does not follow that it would be conscionable for Milan to resile from the 1992 promise. Proportionality between the detriment suffered by Milic and the interest he claims in the proceeds of the sale of Glenlyon Road is not an element of Milic's claim based on a proprietary estoppel constructive trust. Proportionality is a relevant consideration but is not to be elevated above the importance of making good the promise that Milic would receive the whole of Glenlyon Road if he renovated the property. The 1992 promise was a promise that Milic would receive both the house and the land at 285 Glenlyon Road. The promise was not subject to any qualification to the effect that Milan would not be bound by it if there was a significant increase in the unimproved value of the land in the years following 1994. It is significant that Milic returned to Glenlyon Road 12 years later in 2006 and undertook further works constructing a summer kitchen and contributing approximately $30,000 of his own funds towards that construction, as well as a salvaged kitchen valued at approximately $20,000. Fourteen years after the 1992 promise was made he undertook further significant renovation works relying upon the 1992 promise. The interest which Milic claims in the proceeds of sale of Glenlyon Road is not disproportionate to the detriment which he suffered in reliance upon the promise to such an extent that it would not be unconscionable for Milan to resile from the 1992 promise.
221 Milan submits that the Court should find that Milic stole $15,000 from Milan in August 2007. He submits that this conduct precludes Milic from having any entitlement to the proceeds of sale of Glenlyon Road.[485]
222 It is common ground that on 13 August 2007 Milic withdrew $15,000 from his parents' AMP account,[486] exercising a power of attorney which he held at that time.[487] It is also common ground that on 22 August 2007 $11,373.64 was transferred from Westpac bank account number 0333 7226 1843 for the purchase of a Corvette motor vehicle.[488] Milic gave unchallenged evidence that this is the personal account of his daughter.[489] Milic gave evidence that he signed the Bill of Sale for the purchase of the corvette.[490] He said he did so because the vehicle was going to be imported from the USA and he had experience with customs requirements due to his work experience with the ACS.[491] He gave evidence that although he signed the Bill of Sale his daughter paid for the vehicle with funds she had borrowed.[492]
223 The characterisation of Milic's withdrawal and expenditure of $15,000 from the AMP account was hotly contested. On the one hand, Milan submits that the funds were stolen and used for the purchase of a Corvette. On the other hand, Milic submits that Milunka had agreed with him prior to August 2007 that he could withdraw $15,000 from the AMP account at any time he was in need of funds.[493]
224 The contention that Milic stole $15,000 from his parents and used the funds to purchase a Corvette is a very serious allegation. Milan bears the evidentiary onus of establishing the truth of the allegation. The evidentiary onus is subject to the balance of probabilities taking into account the gravity of the matters alleged.[494]
225 Milic's bank account statement with the Commonwealth Bank of Australia for August to October 2007 is in evidence.[495] On 15 August 2007 the balance in the account was $54.61. On 20 August 2007 the following entry is recorded: 'AMP withdrawal' with the account credited $15,000. Between 20 August 2007 and 1 October 2007 there were numerous withdrawals from the account until the balance was $5.28. On 14 September 2007 there was a withdrawal of $2,500. On 25 September 2007 there was a withdrawal of $3,712.59. On the face of the bank statement it appears that all of the other withdrawals were for relatively small amounts for living expenses. The CBA bank statement supports Milic's contention that he did not purchase a Corvette motor vehicle with the $15,000 he withdrew from his parents' AMP account in August 2007. Rather, the bank statement supports a finding that the funds were used primarily to meet routine living expenses.
226 It is common ground that on numerous occasions Milan and Milunka gave money to Milic.[496] The actual amount of money gifted to Milic is not agreed. There is documentary evidence which records payments made to Milic or for his benefit. Milan's TransComm Credit Co-op statement dated 31 March 1990 contains an entry 'bank cheque Veridian $8,300'. Veridian Pty Ltd was the vendor of 9 and 11 Ellsa Close purchased by Milic and Jasmina in July 1990. 11 Ellsa Close was purchased for $80,000.[497] I infer that Milan provided Milic with $8,000 to pay the 10% deposit for 11 Ellsa Close.
227 Milan's credit union statement for April 1998 records a payment to Milic's construction company, Unique Constructions Pty Ltd, on 24 April 1998 in the sum of $4,000.[498] Milic denied that this was a gift. Rather, he described the payment as a short term loan.[499] Milic produced no evidence of a repayment. I am satisfied that the $4,000 was a gift.
229 Milic gave evidence that prior to his parents leaving Australia to go to Serbia on holiday in 2007 his mother told him that if he needed money he could withdraw $15,000 from her AMP account after she had left for Serbia.[502] The AMP statement recording the withdrawal of $15,000 on 7 August 2007 discloses that the payment of $15,000 was made to Milic's account with the CBA.[503] There was no attempt on Milic's part to conceal the fact that he had received payment. The AMP statements were collected by Radunka whilst Milan and Milunka were overseas. Radunka gave evidence that she collected the AMP statements from Glenlyon Road and filed them away whilst her parents were overseas.[504] Initially her evidence was that she did not look at the August 2007 statement.[505] Subsequently, Radunka gave evidence that she could not remember whether she had opened the August 2007 statement.[506] However, she then gave evidence that if she had opened the statement she would have remembered having done so because of the large amount of the withdrawal.[507]
230 Milan's letter to Milic in response to Milic's letter of 14 January 2009 includes the following:
Whenever you came we gave you money - 10 thousand, 6 thousand at the airport, at 10 o'clock at night 6 thousand. Then 15 thousand that we did not know about and numerous times when you left the customs one thousand, two thousand, three thousand and I had never written anything down.[508]
231 In Milic's May 2009 response to this letter, under the heading 'Dad - from 1990 to 2009' the following appears: 'Let's say he gave me $60,000'.[509] This entry is qualified by the comment, 'Although it is excessive', which I infer to be Milic contending that the figure of $60,000 is an overestimate of how much money Milan had given him between 1990 and 2009.
232 It is an agreed matter that Milan gave money to Milic on many occasions. Milan's letter in response to Milic's letter of 14 January 2009 describes the $15,000 as '$15 thousand that we did not know about'.[510] Milan does not describe the withdrawal of $15,000 as theft. The letter does state that 'we did not know about' the $15,000. However, this statement is explicable if Milan was not aware that Milunka had previously agreed with Milic that he could withdraw the $15,000. Milunka had a direct interest in the superannuation account which was in both her name and Milan's name.
233 Milic's withdrawal of $15,000 in August 2007 occurred approximately 12 months after he had completed construction of the summer kitchen at Glenlyon Road. Milic's unchallenged evidence is that he outlaid approximately $30,000 of his own funds to build the summer kitchen, as well as a salvaged kitchen worth $20,000. If Milunka agreed that Milic could withdraw $15,000 from the AMP account this represented a reimbursement of half of the money which Milic had outlaid when building the summer kitchen (putting to one side the value of the salvaged kitchen).
234 I reject Milan's attempt to characterise the withdrawal of the $15,000 as theft. I accept Milic's evidence that he did not use the $15,000 to purchase a Corvette. On balance, I consider it more likely than not that Milic had been authorised by Milunka to withdraw $15,000 from the AMP account. Milic's conduct is consistent with this. He made no attempt to conceal the payment. The AMP statement disclosed that he was receiving the funds. I infer that Milic was aware that the statements were being collected by Radunka from Glenlyon Road and could have been read by her, thereby exposing any wrong doing on his part if he had not been authorised to withdraw the funds. Further, the withdrawal of $15,000 must be viewed in the context of a long history of Milan and Milunka advancing funds to Milic. It must also be viewed in the context of the work undertaken and funds outlaid by Milic approximately 12 months earlier in 2006 when he built the summer kitchen.
235 Having regard to the gravity of the allegation, I am not satisfied, on the balance of probabilities, that Milic stole $15,000. Milic did not engage in conduct which precludes him from holding the benefit of the 1992 promise.
236 Milic is entitled to an order that the proceeds of sale of Glenlyon Road, together with any accrued interest held in the trust account of the second defendant be paid to him forthwith. I shall provide the parties with an opportunity to make submissions on the costs of the proceeding. My provisional view is that Milan should pay Milic's costs of the proceeding on a standard basis, to be taxed in default of agreement.
[1] Transcript ('T') T 60 L 23-27 (Mr Wells).
[2] T 861 L 7-18 (Exchange between Milan, Mr Wells and his Honour).
[8] Milan's Outline of Closing Submissions dated 20 August 2024 at [19].
[16] Court Book ('CB') 769, Milunka's 1996 Tax Return dated 30 October 1996.
[17] CB 798, Letter from Bayside Trains to Milan dated 23 December 1998.
[18] CB 140, Contract of Sale Kraljevo dated 18 June 1986.
[19] CB 142-143, Agreement Regarding Gifting of Real Estate dated 26 July 2011.
[20] CB 132, Judgment of Serbian Magistrates' Court dated 21 November 2017.
[28] T 243 L 5-28 (Milic), T 465 L 14 (Milic).
[31] T 244 l 31 (Milic), T 894 L 7-8 (Radunka).
[33] CB 310, Will of Milunka Milenkovic dated 22 April 1975, CB 313, Will of Milan Milenkovic dated 22 April 1975.
[34] CB 294, Historical Title Search Cecil Street.
[35] CB 308, Transfer of Land 46 Andrea Street (purchase) dated 4 March 1975.
[36] CB 409, Will of Milan Milenkovic dated 28 March 2008, CB 412, Will of Milunka Milenkovic dated 28 March 2008.
[37] CB 747, Will of Milan Milenkovic dated 28 May 2010, CB 745 Will of Milunka Milenkovic dated 28 may 2010.
[38] CB 749-753, Will of Milan Milenkovic dated 9 August 2019.
[39] CB 426, Letter from Milan and Milunka to Milic (English Translation) undated.
[40] T 920 L 29 - 921 L 6 (Radunka), T 922 L 5-18 (Radunka).
[41] CB 440, Letter from Milic to Milan (Serbian Original) undated, CB 526, Express Post Envelope dated 17 May 2009; T 985 L 30 - 986 L 13 (Radunka).
[43] CB 900, Letter from Milic to Milan (English Translation) undated ('May 2009 Letter').
[47] Milan's Outline of Closing Submissions dated 20 August 2024 at [23].
[48] CB 494, Transfer of Land Stanley Street (purchase) dated 4 March 1988, CB 268, Historical Title Search Stanley Street.
[50] CB 353, CBA Loan Statement dated 1 June 1990.
[52] T 309 L 24-26 (Milic), T 319 L 23 (Milic).
[53] T 229 L 21-23 (Milic), T 237 L 14 (Milic).
[54] CB 673, Transfer of Land Highett Road (purchase) dated 19 October 1979.
[56] CB 524, Transfer of Land Highett Road (sale) dated 20 January 1988.
[58] T 240 L 22 (Milic), T 506 L 17-18 (Milic).
[59] CB 289, Historical Title Search Highett Road.
[63] Milenkovic v Belleli & Ors [2015] VSC 349.
[64] T 181 L 4-8 (Milic), T 216 L 23-26 (Milic).
[65] Milenkovic v Belleli & Ors [2015] VSC 349 at [2]-[10] (Lansdowne AsJ).
[68] CB 352, Agreement (English Translation) dated 11 March 1988.
[69] T 314 L 23-31 (Exchange between Milic and Mr Wells).
[70] In final submissions Milan was represented by Mr Reynolds rather than Mr Wells who did not appear after 26 June 2024.
[72] Unreported, Supreme Court of Victoria, Hayne J, no N07678 of 1994, 27 April 1995.
[73] Ibid at 11-12 (Hayne J). See also Finance Sector Union of Australia v Commonwealth Bank of Australia Ltd [2005] FCA 796; (2005) 147 FCR 158 at [129] (Merkel J); Damevski v Giudice (2003) 133 FCR 438 at [140] (Merkel J).
[74] CB 784 Centrelink Application Form - Income & Assets dated 20 September 1999.
[78] CB 316, Sale Note Percy Street (purchase) dated 15 November 1976.
[79] CB 271, Historical Title Search Percy Street.
[82] CB 294, Historical Title Search Cecil Street; T 243 L 30-31 (Milic), T 886 L 11-14 (Radunka).
[83] T 238 L 17 (Milic), T 619 L 22 (Jasmina).
[85] T 243 L 5-28 (Milic), T 465 L 14 (Milic).
[86] CB 271, Historical Title Search Percy Street.
[90] CB 223, Contract of Sale Furlong Road (purchase) dated 27 November 1980.
[92] T 585 L 13-22 (Jasmina), T 627 L 20 (Jasmina).
[95] CB 348-349, Bank Statement National Mutual Royal Savings Bank Limited dated 30 June 1986.
[98] CB 273, Historical Title Search Percy Street.
[103] CB 273, Historical Title Search Percy Street.
[106] CB 892, Historical Title Search Furlong Road at CB 892.
[108] T 881 L 20 (Radunka); CB 232, Outline of Evidence of Radunka Nikolic dated 1 June 2023.
[115] T 767 L 19-20, 25-26 (Tom Savic).
[119] T 787 L 21-31 (Exchange between Tom Savic and Mr Wells).
[121] CB 316, Sale Note Percy Street dated 15 November 1976.
[122] CB 324, Contract of Sale Furlong Road (purchase) dated 8 December 1980.
[126] CB 316, Sale Note Percy Street (purchase) dated 15 November 1976.
[127] CB 322, Sale Note Furlong Road (purchase) dated 27 November 1980, CB 323-324, Contract of Sale Furlong Road (purchase) dated 8 December 1980.
[131] CB 893, Transfer of Land Ballarat Road (purchase) dated 4 June 1976.
[135] CB 349, Royal Bank Statement of Mortgage Account dated 30 June 1986.
[136] CB 273, Historical Title Search Percy Street.
[137] CB 355, Market Appraisal Percy Street dated 30 September 1992.
[138] CB 308, Transfer of Land Andrea Street (purchase) dated 4 March 1975.
[139] T 203 L 13-18 (Milic); CB 346, Transfer of Land Andrea Street (sale) dated 2 July 1984.
[146] CB 388, Transfer of Land Stanley Street (transfer) dated 14 May 1999.
[159] T 768 L 19 - 769 L 22 (Exchange between Tom Savic and Mr Clough).
[170] Milan's Outline of Closing Submissions dated 20 August 2024 at [36].
[172] T 774 L 9-23 (Tom Savic), T 774 L 30 - 775 L 3 (Tom Savic).
[176] T 787 L 9 - 788 L 1 (Tom Savic).
[184] T 723 L 30 - 724 L 1 (Drago Susanj).
[189] See T 715 L 15-16 (Drago Susanj), T 748 L 20 (Drago Susanj).
[191] T 715 L 27 - 716 L 2 (Drago Susanj), see also T 717 L 7-10 (Drago Susanj), T 718 L 19-22 (Drago Susanj).
[195] Milan's Outline of Closing Submissions dated 20 August 2024 at [18] (emphasis omitted).
[198] T 753 L 21-25 (Petar Stojanovic).
[200] T 757 L 26-30 (Petar Stojanovic).
[202] T 763 L 13-14 (Milutin Bogicevic).
[203] T 763 L 11-14 (Milutin Bogicevic).
[205] T 764 L 2-4, 18-19 (Milutin Bogicevic).
[207] T 75 L 28 - 76 L 17 (Milic), T 145 L 15-19 (Exchange between Milic and his Honour).
[209] T 117 L 20-24 (Milic), T 574 L 30 - 575 L 1 (Jasmina).
[211] T 144 L 27 - 145 L 5 (Exchange between Milic and his Honour); CB 160, City of Brunswick Building Approval Glenlyon Road dated 27 April 1993.
[212] CB 160, City of Brunswick Building Approval Glenlyon Road dated 27 April 1993.
[213] T 145 L 15-19 (Exchange between Milic and his Honour).
[214] T 84 L 7 (Milic), T 116 L 18-20 (Milic); CB 359, Kostic Design & Construction Pty Ltd Plans re Glenlyon Road, dated February 1993; CB 360, Kostic Design & Construction Pty Ltd Engineering Computations re Glenlyon Road dated 11 February 1993; CB 367, Kostic Design & Construction Pty Ltd Specifications re Glenlyon Road dated 11 March 1993.
[217] CB169, Various Plans Including Variations to Plan for Works Completed on Glenlyon Road undated.
[220] T 117 L 20-24 (Milic), T 574 L 30 - 575 L 1 (Jasmina).
[225] T 118 L 6-10 (Exchange between Milic and Mr Clough).
[227] T 118 L 16-17 (Milic), T 137 L 3-4 (Milic).
[235] T 113 L 28-30 (Milic); CB 369, Kostic Design & Construction Pty Ltd Specifications re Glenlyon Road dated 11 March 1993.
[237] T 1039 L 8-10 (Dragan Stojanovic).
[238] T 1039 L 10-12 (Dragan Stojanovic).
[239] T 160 L 6-15 (Exchange between Milic and Mr Clough).
[240] T 76 L 13-14 (Milic), T 157 L 16-21 (Milic).
[242] CB169, 172, Various Plans Including Variations to Plan for Works Completed on Glenlyon Road undated.
[243] T 871 L 13-14; T 871 L 3-5 (Milan Dakic).
[244] T 1018 L 30-31 (Aleksander Dukanac).
[245] T 157 L 11-21 (Exchange between Milic and Mr Clough).
[250] T 77 L 9-13 (Milic), T 78 L 27-29 (Milic).
[259] T 76 L 7-8 (Milic), T 163 L 18-21 (Milic).
[261] T 83 L 5 - 19 (Milic), T 163 L 6-9 (Milic).
[262] T 1019 L 1-2 (Aleksander Dukanac).
[274] T 167 L 14-18 (Milic), T 84 L 16-17 (Milic).
[275] T 158 L 21 - 25 (Exchange between Milic and Mr Clough).
[276] T 1027 L 1-2 (Aleksander Dukanac).
[277] T 1019 L 27-29 (Aleksander Dukanac).
[280] T 80 L 25-27 (Milic), T 164 L 3 (Milic).
[283] T 1031 L 7-9, 17-18 (Aleksander Dukanac).
[284] T 1032 L 4-9 (Exchange between Aleksander Dukanac and Mr Clough).
[285] T 1030 L 28 (Aleksander Dukanac).
[287] T 1030 L 9-10 (Aleksander Dukanac).
[288] T 165 L 1-17 (Exchange between Milic and Mr Clough).
[290] T 1020 L 21-24 (Aleksander Dukanac).
[296] T 81 L 4-6 (Milic), T 168 L 7-15 (Milic).
[297] T 81 L 11-12 (Milic), T 168 L 11 (Milic).
[306] T 168 L 11 (Milic), T 81 L 12 (Milic).
[307] T 81 L 14-16 (Milic), T 167 L 11-13 (Milic).
[310] T 190 L 27-28 (Exchange between Milic and Mr Clough).
[311] T 179 L 18 (Exchange between Milic and Mr Clough).
[314] T 193 L 6-8 (Exchange between Milic and Mr Clough).
[316] T 80 L 1-4 (Milic), T 193 L 10-13 (Milic).
[319] T 646 L 31 - 647 L 2 (Jordan Vujic).
[327] T 58 L 24-30 (Exchange between Mr Wells and his Honour).
[329] T 394 L 2-3 (Exchange between Milic and Mr Wells), T 396 L 1-12 (Exchange between Milic, Mr Wells and Mr Clough).
[331] Harris v Harris [2021] VSCA 138 at [79] ('Harris'); Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 at 583 [20] ('Donis').
[332] T 168 L 23 - 169 L 7 (Milic), T 387 L 7-17 (Exchange between Milic and Mr Wells).
[333] Milic's Outline of Closing Submissions dated 20 August 2024 at [104]-[105] (citations omitted).
[334] CB 372, Reivers Industries Invoices 97042 dated 8 March 1994, CB373, Reivers Industries Invoice 97053 dated 8 March 1994.
[335] T 60 L 10-12 (Exchange between Mr Wells and his Honour).
[336] CB 761, ATO Group Certificates for Milan and Milunka Milenkovic undated.
[337] CB 774, ATO Notice of Assessment for Milan Milenkovic dated 17 December 1996.
[339] T 58 L 24-30 (Exchange between Mr Wells and his Honour).
[340] CB 371, City of Brunswick Building Approval - Glenlyon Road dated 27 April 1993.
[342] T 266 L 15-19 (Exchange between Milic and his Honour).
[344] CB 475, Letter from Australian Customs Service to Milic dated 14 November 1994.
[346] Re Milic Milenkovic and Comcare [1993] AATA 17 (20 January 1993) at [6]-[7]; T 403 L 5-12 (Milic), T 458 L 24-27 (Milic), T 513 L 8 - 514 L 30 (Exchange between Milic and Mr Clough), T 514 L 26 - 515 L 7 (Milic), T 517 L 3-4 (Milic).
[347] [1993] AAT 17 (20 January 1993).
[349] T 457 L 11 - 458 L 29 (Exchange between Milic and his Honour).
[350] T 457 L 11 - 458 L 29 (Exchange between Milic and his Honour).
[351] Milic's Outline of Closing Submissions dated 20 August 2024 at [109].
[352] CB 483, Historical Title Search Waratah Street.
[353] CB 708, Letter from Jerry Belleli & Co to Milic Milenkovic dated 16 March 1990.
[355] CB 706, Statement of Adjustments for 16 Cabinda Drive dated 26 February 1990.
[356] CB 707, Statement of Adjustments for Waratah Street dated 2 March 1990.
[357] CB 486, Transfer of Land Waratah Street dated 15 October 1993.
[358] CB 278, Historical Title Search 14 Cabinda Drive.
[361] T 871 L 15-20, 29 (Milan Dakic).
[363] T 217 L 12 - 218 L 23 (Exchange between Milic, Mr Clough and his Honour).
[368] T 168 L 14-17 (Milic), T 223 L 8-12 (Milic).
[369] T 168 L 14-17 (Milic), T 223 L 8-12 (Exchange between Milic and Mr Clough).
[373] T 994 L 18-21 (Exchange between Zoran Erovic and Mr Reynolds).
[376] T 1037 L 20-23 (Dragan Stojanovic).
[377] T 1037 L 26-27 (Dragan Stojanovic).
[378] T 1039 L 8-19 (Dragan Stojanovic).
[379] T 1039 L 24-25 (Dragan Stojanovic).
[380] T 1039 L 30-31 (Dragan Stojanovic).
[381] T 1040 L 29-30 (Dragan Stojanovic).
[382] T 998 L 8-14 (Exchange between Mirko Stankovic and Mr Reynolds).
[385] T 1017 L 22-23 (Exchange between Mirko Stankovic and his Honour).
[386] T 1008 L 13-14 (Mirko Stankovic).
[388] T 1000 L 5-7 (Exchange between Mirko Stankovic and Mr Clough).
[389] T 1000 L 19-20 (Mirko Stankovic).
[391] T 1002 L 8-11 (Mirko Stankovic).
[392] T 1039 L 14-21 (Dragan Stojanovic).
[393] CB 465-472, Photos and Floorplan of Glenlyon Road undated; T 1015 L 26 -1016 L 13 (Exchange between Mirko Stankovic and Mr Clough).
[394] T 1021 L 31 - 1022 L 2 (Exchange between Aleksander Dukanac and His Honour).
[395] T 1022 L 17-18 (Aleksander Dukanac).
[396] T 1031 L 7-8 (Aleksander Dukanac).
[397] T 1019 L 6 (Aleksander Dukanac).
[398] T 1027 L 6 (Aleksander Dukanac).
[399] T 1032 L 2-3 (Aleksander Dukanac).
[400] T 1032 L 13 (Aleksander Dukanac).
[401] T 1032 L 15-18 (Exchange between Aleksander Dukanac and Mr Clough).
[402] T 1020 L 8-14 (Exchange between Aleksander Dukanac and his Honour).
[403] T 1022 L 22-25 (Aleksander Dukanac).
[404] T 1021 L 25-29 (Aleksander Dukanac).
[405] T 221 L 12-19 (Exchange between Milic and Mr Clough).
[407] T 1033 L 16-20 (Exchange between Aleksander Dukanac and Mr Clough).
[408] T 403 L 7-8 (Milic), T 403 L 30 - 404 L 1 (Milic).
[409] T 376 L 26 (Milic), T 378 L 17-18 (Milic), T 403 L 7-12 (Milic).
[410] CB 475 Letter from Australian Customs Service to Milic dated 14 November 1994; T 42 L 22 (Mr Clough), T 132 L 23 (Milic).
[411] CB 475, Letter from Australian Customs Service to Milic dated 14 November 1994.
[412] T 178 L 3 - T 179 L 6 (Exchange between Milic and Mr Clough).
[413] T 190 L 20-26 (Milic), T 194 L 29-30 (Milic).
[415] T 162 L 18-24 (Milic), T 221 L 3 (Milic).
[417] T 647 L 26-27 (Exchange between Jordan Vujic and Mr Clough).
[418] T 190 L 27 - T 191 L 3 (Exchange between Milic and Mr Clough), T 193 L 6-28 (Milic).
[425] Milan's Outline of Closing Submissions dated 20 August 2024 at [27].
[426] T 483 L 5-29 (Exchange between Milic and Mr Wells).
[427] T 375 L 7-23 (Exchange between Milic and Mr Wells).
[428] T 195 L 20-21 (Exchange between Milic and Mr Clough).
[429] Grundt v Great Boulder Gold Mines Pty Ltd [1937] HCA 58; (1937) 59 CLR 641 at 674-5 (Dixon J); Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 at [80] (French CJ, Kiefel, Bell and Keane JJ).
[430] Donis at 583 [20] (Nettle JA).
[431] Milan's Outline of Closing Submissions dated 20 August 2024 at [127]-[128].
[432] CB 496, Transfer of Land Stanley Street (transfer) dated 14 May 1999.
[433] CB 322, Sale Note Furlong Road (purchase) dated 27 November 1980.
[434] Statement of Agreed Facts dated 10 May 2024 at [12].
[435] Amended Defence and Counterclaim dated 7 July 2023 (emphasis omitted).
[436] T 7 L 5-15 (Mr Clough); Milic's Outline of Closing Submissions dated 20 August 2024 at [199]-[202].
[437] Zheng v Metcalfe [2020] NSWCA 228 at [57] (Gleeson JA); McKinley v Woods [2024] NSWCA 122 at [89] (Leeming JA); West v Mead [2003] NSWSC 161 at [58] (Campbell J).
[438] CB 254, Historical Title Search Glenlyon Road.
[439] Agreed Statement of Facts dated 10 May 2024 at [12].
[440] T 273 L 16-19 (Exchange between Milic and Mr Clough).
[441] T 273 L 31 -274 L 1 (Exchange between Milic and Mr Clough).
[442] T 272 L 4-5 (Milic), T 272 L 9-10 (Exchange between Milic and his Honour).
[443] CB 841, CUA Statement R Nikolic Showing Purchases of Building Materials dated 28 February 2007, CB 862, CUA Statement R Nikolic Listing Expenditure on Hardware dated 31 March 2007.
[444] CB 856, List of Labour Payments for Tiling Beaver Street dated 23 March 2007.
[445] T 912 L 5 - 914 L 20 (Radunka); CB 943, Handwritten Note with PostIt Note dated 3 March 2007.
[446] CB 942, Handwritten Note with Postit Note dated March 2007; T 908 L 21-30 (Radunka).
[447] Milan's Outline of Closing Submissions dated 20 August 2024 at [51].
[448] SFAD dated 27 May 2024 at [21].
[450] CB 144, Letter from Milic to Milan and Milunka (English Translation) dated 14 June 2009 (emphasis omitted).
[452] McNab v Graham [2017] VSCA 352 at 341-342 [98], [101] (Tate JA).
[453] Ibid at [102], [108] (Tate JA); Varma v Varma (2010) 6 ASTLR 152 at 259 [507] (Ward J).
[455] Milan's Outline of Closing Submissions dated 20 August 2024 at [183].
[457] Ibid at 239-240 (Lord Chancellor Selborne).
[459] Ibid at 243 (Dixon CJ, Webb and Kitto JJ); see also Lamshed v Lamshed [1963] HCA 60; (1963) 109 CLR 440 at 453-54 (Kitto J).
[460] [1989] HCA 4; (1989) 167 CLR 316 ('Orr').
[461] Ibid at 340-41 (Deane J); see also Merrett v Mackay [2022] VSC 220 at [257] (Daly AsJ).
[462] Nowell v Palmer [1993] NSWCA 199; (1993) 32 NSWLR 574 at 580 (Mahoney JA; Meagher and Handley JJA agreeing) (emphasis added).
[463] Wright v Lemon [2024] WASCA 19 at 237 [661] (Buss P; Vaughan and Hall JJA relevantly agreeing) ('Wright').
[464] Erlanger v New Sombrero Phosphate Co (1874) 3 App Cas 1218 at 1253-1254 (Lord Hatherley), 1285 (Lord Gordon) ('Erlanger'); The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 8) [2008] WASC 239; (2009) 39 WAR 1 at 832 [9339]-[9341] (Owen J) ('Bell Group'); Gillespie v Gillespie [2013] 2 Qd R 440 at 460-61 [88]-[92], 462 [102] (Wilson J; McMurdo P and White JA agreeing) ('Gillespie').
[465] Wright at 240 [674] (Buss P; Vaughan and Hall JJA relevantly agreeing); Bell Group at 827 [9314] (Owen J).
[466] Orr at 330 (Wilson, Toohey and Gaudron JJ).
[467] Erlanger at 1232 (Lord Penzance), 1252 (Lord Hatherley), 1259 (Lord O'Hagan), 1285 (Lord Gordon); Bell Group at 829 [9326] (Owen J); Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654 at 679 [180] (Young JA; Allsop P and Macfarlan JA relevantly agreeing).
[468] SFAD dated 27 May 2024 at [22(c)(iv)].
[470] Savage v Lunn [1998] NSWCA 203 at 28 (Sheppard AJA, Handley and Sheller JJA) ('Savage'); Gillespie at 460 [84] (Wilson J; McMurdo P and White JA agreeing).
[472] T 87 L 20-25 (Exchange between Milic and his Honour).
[473] Agreed Statement of Facts dated 10 May 2024 at [8].
[475] Ibid at [79] (Beach, Niall and Kennedy JJA) (citations omitted).
[476] Giumelli v Giumelli (1999) 101 at 123 [42], 125 [50]; Donis at 588 [32], 594 [56].
[479] Milan's Outline of Closing Submissions dated 20 August 2024 at [158].
[481] T 1116 L 16-25 (Mr Reynolds); CB 528, Glenlyon Road Property Land Tax Clearance Certificate dated 6 August 2019.
[482] Harris v Harris [2021] VSCA 138 at [75] (Beach, Niall and Kennedy JJA).
[485] Milan's Outline of Closing Submissions dated 20 August 2024 at [168], [169].
[486] CB 397, AMP Flexible Lifetime Investments Withdrawal Statement dated 13 August 2007; T 430 L 27-28 (Exchange between Milic and Mr Wells).
[487] CB 394, Enduring Power of Attorney - Milan dated 14 May 2003, CB 396, Enduring Power of Attorney - Milunka dated 14 May 2003.
[488] CB 402, Overseas Telegraphic Transfer dated 22 August 2007.
[489] T 430 L 14-18 (Milic), T 431 L 4, 11-12, 18 (Milic).
[492] T 430 L 24 (Milic), T 432 L 9 (Milic).
[494] Evidence Act 2008 (Vic) s 140(2)(c); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170-171 (Mason CJ, Brennan, Deane and Gaudron JJ); Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 (Dixon J).
[495] CB 648-652, CBA Streamline Account Statement dated 31 October 2007.
[496] Agreed Statement of Facts dated 10 May 2024 at [15].
[497] CB 539, Transfer of Land 9 Ellsa Close dated 23 July 1990.
[498] CB 386, Statement Transcomm Credit Union dated 30 June 1998.
[499] T 326 L 27-29 (Exchange between Milic and Mr Wells).
[500] CB 392, CBA Streamline Account Statement dated 30 August 2002.
[503] CB 397, AMP Flexible Lifetime Investments Withdrawal Statement dated 13 August 2007.
[504] T 982 L 2-4 (Exchange between Radunka and his Honour).
[506] T 982 L 27 (Exchange between Radunka and his Honour).
[508] CB 425, Letter from Milan and Milunka to Milic (English Translation) undated.
[510] CB 425, Letter from Milan and Milunka to Milic (English Translation) undated.
Milenkovic
Milenkovic [2024] VSC 763
(1988) 18 NSWLR 540
(2005) 147 FCR 158
(2003) 133 FCR 438
(2007) 19 VR 577
(1937) 59 CLR 641
(2014) 251 CLR 505
(1956) 96 CLR 233
(1963) 109 CLR 440
(1989) 167 CLR 316
(1993) 32 NSWLR 574
(2009) 39 WAR 1
(2009) 262 ALR 654
(2010) 78 NSWLR 483
(1992) 67 ALJR 170
(1938) 60 CLR 336