Sivritas v Sivritas & Anor [2008] VSC 374 (30 September 2008)- resulting trusts and constructive trust

October 3, 2008 |

 Sivritas v Sivritas involves an interesting analysis by Kyrou J’on constructive and resulting trusts. Kyrou J clearly had a difficult time working his way through conflicting evidence.   

There were significant conflicting factual issues which prompted  Kyrou to state, at 41::

In these circumstances, the most reliable evidence was the evidence in contemporaneous records and oral evidence that was supported by such records.

Resulting Trust (paragraphs 118 – 127):

In a purchase money resulting trust claim (at 118):

  • (at 118)where one party purchases property in the name of another or in joint names of both there is a presumption of a resulting trust in favour of the purchasing party;
  • (at 118)where more than one person contributes unequal sums to the purchase price and the property is placed in only one person’s name there is a  resulting trust with each party being tenants in common to the extent of their contributations.
  • (at 119) the presumption of a resulting trust can be rebutted by evidence of cotrary intention such as shared intention, contrary intention or a intention to make a gift;
  • (at 121) a contrary intention needs to be expressed at the time of the transaction or immeidiately after it.  Subsqeuent acts are only admissible as admissions against interest.  Intention is evidenced from words or conduct (@ 122).
  • (at 122) often there is a counterveilling presumption, commonly the presumption against advancement.
  • (at 124 – 7) beneficial interest is determined solely by direct financial contribuation to the purchase price
  • (at 135) where there is a resulting trust and the parties are tenants in comon and there is mortgage over the property the party who pays more than his fair share of the mortgage chas an equitable charge securing contribution from the other party.

 Constructive Trust

Muschinski v Dodds constructive trusts arises when a non legal owner contributes to the property.  Kryou J @ par 129 describes the trust as:

129 A Muschinski v Dodds constructive trust arises:[28]

where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do …

 In determinig the scope of the trust the Court can consider (at 132): financial contributions to the purchase price of the property and incidental costs such as stamp duty, registration fees, solicitors’ fees and bank fees. …the pooling of financial resources,[33] other financial contributions even in the absence of pooling,[34] contributions of labour,[35] and non-financial contributions or contributions in kind such as homemaking and parenting contributions.[36] Further, the inquiry into whether the assertion by a party of his or her legal rights would be unconscionable can encompass events that occurred after the property was initially acquired. Expenditure on repairs and renovations of the property by a person asserting a constructive trust in respect of the property, where the expenditure is accepted by the legal owner of the property in the knowledge that it would improve the home and add to its value…

In short a wide ambit. 

Common intention constructive trust arises (at 134)when:

  • there is actual or inferred common intention of the parties to a beneficial interest in the property; and
  • the claimant has acted to his/her detriment on that intention; and
  • it would be equitable fraud on the claimant to deny the claimant’s interest.

Kyrou J’s exercise is calculating the interest in the property is worth reading though such calculations will vary from case to case.


The court found for the plaintiff, with an interest of 73.61%,  and found that the defendant’s hold the property on constructive trust for him.   

There is no substitution for discovery.  Then again cases like these involving families which go from a loving and close relationships to a state of bitter civil war rarely involve detailed record keeping. It is all the more complicated when the critical events track back a decade or two and the parties are not particularly well educated.  The best fall back is subpoenas on anyone who had anything to do with the purchase, the bank, the lawyers, the real estate agent etc…

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