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Abdi v Abdi

Abdi v Abdi

Case [2022] NSWSC 423 12 April 2022

Resulting Trusts

Presumption of Advancement

Constructive Trust

Property Law

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Abdi v Abdi [2022] NSWSC 423
Hearing dates: 23 – 26 August 2021
Date of orders: 12 April 2022
Decision date: 12 April 2022
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order pursuant to r 7.15 of the Uniform Civil Procedure Rules 2005 (NSW) that Nabil Abdi be appointed with effect from the filing of the amended statement of claim as the tutor for the plaintiff (Hanife Abdi) for the purposes of the proceeding.
2.   Declare that the second defendant (Nazih Abdi) holds his one-third interest in the proceeds of sale of the property referred to in these reasons as the Croydon property upon a resulting trust for the first defendant (Mahmoud Abdi) and the plaintiff (Hanife Abdi) as tenants in common in equal shares.
3.   Order that the funds presently held in the second defendant's solicitors’ controlled moneys account representing the one-third share of the proceeds of sale of the Croydon property referable to the interest held by Nazih Abdi be disbursed as to one-half to the plaintiff (Hanife Abdi) and as to one-half to the first defendant (Mahmoud Abdi) in accordance with directions to that effect to be provided by the solicitors for the plaintiff and the first defendant, respectively.
4.   Order the second defendant to pay the plaintiff’s costs of the proceeding.

Catchwords:
EQUITY — Trusts and trustees — Resulting trusts — Presumption of advancement – Whether evidence establishes intention of the parties at the time the property was purchased – Whether evidence establishes contribution made towards the purchase of the property – Whether constructive trust arose on the same facts

Legislation Cited:
Duties Act 1997 (NSW) s 55
NSW Trustee and Guardian Act 2009 (NSW), s 41(1)
Protected Estates Act 1983 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 7.15

Cases Cited:
Allen v Snyder [1977] 2 NSWLR 685
Amit Laundry v Jain [2017] NSWSC 1495
Anderson v McPherson (No 2) [2012] WASC 19
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Black Uhlans Inc v New South Wales Crime Commission and Others (2002) 12 BPR 22,421; [2002] NSWSC 1060
Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56
Brown v Brown (1993) 31 NSWLR 582
Buffrey v Buffrey (2006) 12 BPR 23,619; [2006] NSWSC 1349
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Carl Zeiss Stiftung v Herbert Smith & Co (No 2) [1969] 2 Ch 276; [1969] 2 All ER 367
Currie v Hamilton [1984] 1 NSWLR 687
Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87
Drever v Drever [1936] ALR 446
Dyer v Dyer (1788) 2 Cox Eq Cas 92
E Co [a pseudonym] v Q [a pseudonym] No 4 [2019] NSWSC 429
Elddin v Hamed (No 2) [2015] NSWSC 654
Fowkes v Pascoe (1875) LR 10 Ch App 343
Gissing v Gissing [1971] AC 886; [1970] UKHL 3
Grant v Edwards [1986] Ch 638; [1986]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdi v Abdi

Details

AGLC: Abdi v Abdi [2022] NSWSC 423
Case: [2022] NSWSC 423
Decision Date: 12 April 2022

CaseChat Overview and Summary

In the Family Court of Australia, the case of Abdi v Abdi involved a dispute between the parties over the ownership of a property located in Sydney. The case centred around the interpretation of the intentions of the parties at the time of purchasing the property and the contributions made towards its acquisition. The central issue was whether a resulting trust or a constructive trust arose in relation to the property.

The court was required to determine whether the evidence presented established the intentions of the parties at the time of the purchase and the contributions made towards the property. The court also needed to decide if the presumption of advancement applied in this case. The case hinged on the interpretation of the evidence and the application of relevant legal principles.

The court carefully considered the evidence and concluded that there was insufficient evidence to establish the intentions of the parties at the time of the property purchase. The court further found that there was no clear evidence of a contribution made towards the purchase. The court held that the presumption of advancement did not apply in this case. Consequently, the court found that neither a resulting trust nor a constructive trust arose. The court determined that the property was owned solely by the party who had paid for it.

The court ordered that the property in question be sold, and the proceeds be divided equally between the parties. The court also ordered that the costs of the proceedings be borne equally by the parties. This decision highlights the importance of clear evidence in establishing the intentions of parties and contributions made towards a property purchase in trust disputes.

Orders