Contents Bill Rolfe appointed Repatriation Commissioner 2
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- History of the litigation
DecisionThe Court dismissed the appeal and awarded costs to the Repatriation Commission. What this case meansFor the purpose of applying the ‘inability to obtain appropriate clinical management’ factor, the relevant disease must have existed before the end of the service that is said to have caused the inability to obtain appropriate clinical management. A disease cannot be said to have been contracted until the time when sufficient signs and symptoms of the disease were present such that a medical practitioner could have diagnosed it. Section 119 (and s138(1) the equivalent provision that applies to the VRB) does not lower the standard of proof or take the place of missing evidence.
[2007] FCAFC 29 15 March 2007 Service pension – assets test – value of beneficial interest in real property This case concerned the value, for the purposes of the service pension assets test, of any interest that Mr and Mrs Tsourounakis had in a house at West End, Qld. Their son, Michael, and his wife, Mary, moved into the house in 1991, and have resided there ever since. The parents claimed that, as a result of the circumstances in which their son and his wife came to reside in the house, and the expenditure by his son and daughter-in-law on improvements to the property since they first came to live in it, the parents are estopped from denying that the property is now beneficially owned by their son. The Commission argued that Mr and Mrs Tsourounakis are the legal and beneficial owners of the property. History of the litigationIn 2004 the AAT found that in 1992, the beneficial ownership of the property had passed to the son. On appeal, the Full Federal Court31 held that there was no evidence capable of supporting that finding. At para [45] their Honours observed that: Counsel for Mr and Mrs Tsourounakis, quite properly, made no concerted effort to support the decision of the Tribunal. The real debate concerned the extent to which it would have been open to the Tribunal to conclude that the value of the interest of Mr and Mrs Tsourounakis in the property should be treated as diminished by reason of the contribution made by Michael and Mary to the renovation and improvement of the property. In essence, the question is whether Mr and Mrs Tsourounakis are free to dispose of the property and to retain the whole of the proceeds of sale for their own benefit or whether, by reason of their conduct, their freedom to deal with the property as their own has been severely constrained. The Court remitted matter to the AAT for its consideration of that question, the Full Court observed at para [53]: The task of the Tribunal on reconsideration of the matter according to law would be to examine the extent to which a court of equity would require Mr and Mrs Tsourounakis to compensate Michael as a term of being permitted to dispossess him and his family and to sell the property. That is to say, it would be necessary to enquire whether the assurances that were given by Mr Tsourounakis in 1992 and the conduct of Mr and Mrs Tsourounakis since that time have given rise to an estoppel against their assertion of full beneficial ownership in the property. At one end of the spectrum, a court of equity may impose a constructive trust, if that is the only way in which equity can be done as between Mr and Mrs Tsourounakis on the one hand and Michael on the other. However, a court must first decide whether there is an appropriate equitable remedy that falls short of the imposition of a trust. The Full Court suggested that an alternative remedy might be to require Mr and Mrs Tsourounakis to pay some amount to Michael. On remittal, the AAT found that a court of equity would declare that Michael had a beneficial interest in the property to the extent of one half and remitted the matter to the Commission for assessment of service pension. The Commission appealed from that decision and Mr and Mrs Tsourounakis cross-appealed. FactsBefore 1991 Michael had an interest in a business which failed. He had guaranteed certain of the business debts and in attempting to meet his obligations, he sold his home. At that time, Mr Tsourounakis (the veteran) told Michael that as the property would, in any event, be left to him, there was no reason why he should not have it now. He invited Michael to move into the property and to ‘consider it as his own to do with as he wished’. The property needed substantial repair. They agreed, or understood, that the property would not, at that time, be transferred to Michael because of the risk that his creditors would have recourse to it, leaving his family without a place to live. Michael claimed that his parents were to retain title to the property until he emerged from his financial difficulties. Michael and his family moved into the property in 1991 and have resided there ever since, save when building works have compelled them to vacate it. They have not paid rent, but Michael has paid all rates and other outgoings. He and his wife have also incurred substantial renovation costs. In December 1994 Michael became bankrupt on his own petition. He did not disclose any interest in the property as an asset in his statement of affairs. He was discharged from bankruptcy in 1997. In 2000 Michael and his wife wished to carry out further renovations. A bank was prepared to lend the necessary funds, but it required a mortgage over the property as security. The property was still registered in the names of Mr and Mrs Tsourounakis, and they were unwilling to give such security. They said that the property belonged to Michael, and that the proposed renovations were none of their concern. They were not willing to act as guarantors. Mary’s father, Mr Carter, borrowed $100,000 in July 2001 and a further $30,000 in December 2001. Those funds were applied to the renovations. Michael and Mary agreed with Mr Carter that they would pay the interest and repay the principal. Mr and Mrs Tsourounakis had no involvement in that arrangement. The property is insured in the veteran’s name. The contents are insured in Michael’s name. Michael pays both premiums. Since 1991 he has considered the property to be his home. He said that he would not otherwise have spent time, energy and money in renovating it and living in it. In 2001 Mr and Mrs Tsourounakis made mutual wills in favour of each other, with the property going to Michael.
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pender, Dowsett and Edmonds JJ