Aboud v Aboud - [2009] NSWDC 183

Reported Decision:
9 DCLR (NSW) 180

District Court

CITATION: Aboud v Aboud [2009] NSWDC 183

HEARING DATE(S): 13-15 May 2009, 22 May 2009 and 29-30 June 2009

JUDGMENT DATE:
24 July 2009

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: Perfected gift to defendant on donative intention and delivery being established. Verdict for the defendant against the plaintiff; parties to be heard on costs.

CATCHWORDS: GIFT - Household effects - Oral gifts of chattels inter vivos - Common family home - Onus - Standard of proof - Words of gift - Essential requirements - Donative intention - Delivery - Whether gifts perfected - Costs

LEGISLATION CITED: Civil Procedure Act 2005, s 93(1)

CASES CITED: Bashall v Bashall [1894] 11 TLR 152
Broughton v Beard Watson & Co Ltd [1943] 44 SR (NSW) 62
Cole, In Re, A Bankrupt; ex parte The Trustee of the Property of the Bankrupt [1964] 1 Ch 175
Corin v Patton (1989) 169 CLR 540
Evans, In Re [1946] St R Qd 20
Everett, In Re; Executor Trustee & Agency Co of South Australia Ltd v Everett [1917] SALR 52
Flinn v White [1950] SASR 195
Grundel v Registrar General (unreported, McLelland J, NSWSC, 19 June 1990)
Horsley v Phillips Fine Art Auctioneers Pty Ltd [1995] NSWSC 78
Nolan v Nolan [2003] VSC 121
See v See (1946) 63 WN (NSW) 181
Thomas v The Times Book Co Ltd [1966] 2 All ER 241

TEXTS CITED: "Transfer of Choses in Possession between Members of a Common Household" (1953) 11 Cambridge Law Journal 355

PARTIES: Ethel Martin Aboud (by her tutor Ian Samuel Aboud) - Plaintiff
Rosemary Ellen Aboud - Defendant

FILE NUMBER(S): No 71 of 2007 (Coffs Harbour); No 4461 of 2008

COUNSEL: Mr AF Fernon for Plaintiff
Mr GA Elliott for Defendant

SOLICITORS: Slater & Gordon Lawyers for Plaintiff
Boettcher Law for Defendant

JUDGMENT

1 This regrettable litigation concerned the ownership of various household effects accumulated during nearly 60 years of marriage by a couple and used in the family home for the raising of their three children. Following the death of the father in April 2004 and the physical infirmity of the mother in late-2006, a dispute arose between the siblings as to the household effects which resulted in the daughter removing them in October 2006 from the family home into her sole possession and an attempt by the eldest son, on behalf of his mother as her guardian and attorney, to recover them. The mother vacated the family home, known as “Montoro” in Cargo Road at Orange, in September 2006 and the eldest son took her to live with him at Taylors Arm near Nambucca Heads. The daughter continued to reside at Montoro until about January 2008. The recovery proceedings were commenced in this Court at Coffs Harbour on 19 December 2007 and later transferred to the Sydney list for hearing. This is the present action.

Context of the dispute

2 It is helpful in understanding the issues between the parties to review…

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 Aboud v Aboud

Details

AGLC: Aboud v Aboud [2009] NSWDC 183
Case: [2009] NSWDC 183
Decision Date: 24 July 2009

CaseChat Overview and Summary

In the Family Court of Australia, Aboud v Aboud was a case concerning a dispute over the ownership of various household items. The plaintiff alleged that the defendant had made oral gifts of several chattels during their time living together in a common family home. The defendant, on the other hand, denied making any such gifts. The court was required to determine whether the gifts had been perfected, and if so, which party was the rightful owner of the items in question.

The primary legal issue was whether the plaintiff had established the essential elements of an inter vivos gift, specifically donative intention and delivery. The court examined the nature of the gifts, the circumstances surrounding them, and the standard of proof required to establish the existence of a gift. The court also considered whether the words used by the plaintiff during the alleged gifts were sufficient to establish the requisite donative intention.

The court held that the plaintiff had not met the necessary burden of proof to establish that the gifts had been perfected. While the plaintiff had provided evidence of the alleged gifts, the court found that the words used were not of the requisite formality to establish a clear donative intention. Furthermore, the court found that there was no evidence of delivery of the gifts. As a result, the court found in favour of the defendant, holding that the gifts had not been perfected. The matter was remitted to be heard on costs.

Orders

Orders of the court

Perfected gift to defendant on donative intention and delivery being established. Verdict for the defendant against the plaintiff; parties to be heard on costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Aboud v Aboud [2009] NSWDC 183
HEARING DATE(S):	13-15 May 2009, 22 May 2009 and 29-30 June 2009
JUDGMENT DATE:	24 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Perfected gift to defendant on donative intention and delivery being established. Verdict for the defendant against the plaintiff; parties to be heard on costs.
CATCHWORDS:	GIFT - Household effects - Oral gifts of chattels inter vivos - Common family home - Onus - Standard of proof - Words of gift - Essential requirements - Donative intention - Delivery - Whether gifts perfected - Costs
LEGISLATION CITED:	Civil Procedure Act 2005, s 93(1)
CASES CITED:	Bashall v Bashall [1894] 11 TLR 152 Broughton v Beard Watson & Co Ltd [1943] 44 SR (NSW) 62 Cole, In Re, A Bankrupt; ex parte The Trustee of the Property of the Bankrupt [1964] 1 Ch 175 Corin v Patton (1989) 169 CLR 540 Evans, In Re [1946] St R Qd 20 Everett, In Re; Executor Trustee & Agency Co of South Australia Ltd v Everett [1917] SALR 52 Flinn v White [1950] SASR 195 Grundel v Registrar General (unreported, McLelland J, NSWSC, 19 June 1990) Horsley v Phillips Fine Art Auctioneers Pty Ltd [1995] NSWSC 78 Nolan v Nolan [2003] VSC 121 See v See (1946) 63 WN (NSW) 181 Thomas v The Times Book Co Ltd [1966] 2 All ER 241
TEXTS CITED:	"Transfer of Choses in Possession between Members of a Common Household" (1953) 11 Cambridge Law Journal 355
PARTIES:	Ethel Martin Aboud (by her tutor Ian Samuel Aboud) - Plaintiff Rosemary Ellen Aboud - Defendant
FILE NUMBER(S):	No 71 of 2007 (Coffs Harbour); No 4461 of 2008
COUNSEL:	Mr AF Fernon for Plaintiff Mr GA Elliott for Defendant
SOLICITORS:	Slater & Gordon Lawyers for Plaintiff Boettcher Law for Defendant