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Assoum v Barrett

Assoum v Barrett

Case [2021] NSWDC 641 23 November 2021

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District Court

New South Wales

Medium Neutral Citation: Assoum v Barrett [2021] NSWDC 641
Hearing dates: 25 – 27 August 2021; 30 August 2021 – 1 September 2021; 17 September 2021 (written submissions); 21 September 2021 (written submissions); 14 October 2021 (oral submissions)
Date of orders: 23 November 2021
Decision date: 23 November 2021
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff.
(2) The parties are to bring in agreed short minutes of order within seven days reflecting these reasons for decision.
(3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(4) Liberty is granted to the parties to apply within 14 days for a different costs order to that set out in (3) above.

Catchwords:
PERSONAL PROPERTY - whether advances of moneys by deceased person constituted absolute gifts, conditional gifts or a loan - relevance of deceased signing a letter to a financial institution indicating the main advance was a gift - relevance of later entry by deceased and defendant into a deed
DEEDS - proper construction of deed - whether executing the deed could alter the status of a prior advance of money
RESTITUTION - whether remedy available for money paid in the event that advances were determined to be a conditional gift – whether moneys paid under a mistake of fact or law
ESTOPPEL - whether alleged estoppels were established on the facts

Cases Cited:
Barton v Armstrong (1973) 2 NSWLR 598
Braam v BBC Hardware Ltd [2020] VSCA 164
Ecosse Property Holdings Pty Ltd v G D Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Flourentzou v Spink [2019] NSWCA 315
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161
McKay v National Australia Bank [1998] 4 VR 677
Mei Zhang v Ye Chang [2018] NSWCA 299
Mei Zhang v Ye Cheng [2018] NSWDC 147
Moubarak v Holt [2019] NSWCA 102
Spink v Flourentzou [2019] NSWSC 256
Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgerson [2019] WASCA 114
Troncone v Aliperti (1994) 6 BPR 13,291
Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Watson v Foxman (1995) 49 NSWLR 315
WLD Practice Holdings Pty Ltd v Sara Stockham [2020] NSWSC 1488

Category: Principal judgment
Parties: Barea Assoum (Plaintiff)
Linda Jayne Barrett (Defendant)
Representation:
Counsel:
N Condylis (Plaintiff)
R Freeman (Defendant)
Solicitors:
Crichton-Brownes Solicitors (Plaintiff)
Christopher C Freeman & Co (Defendant)

File Number(s): 2020/00193472
Publication restriction: No

Judgment

In these proceedings, the plaintiff, Ms Barea Assoum in her capacity as Executor of the estate of the late Michael Robert Stainton (“Mr Stainton” or the “Deceased”) seeks the payment by the defendant to her of either $145,000 or, alternatively, $146,000,…

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 Assoum v Barrett

Details

AGLC: Assoum v Barrett [2021] NSWDC 641
Case: [2021] NSWDC 641
Decision Date: 23 November 2021

CaseChat Overview and Summary

The matter of Assoum v Barrett involved a dispute between the plaintiff and the defendant over the nature of monetary advances made by the deceased to the defendant. The deceased had made several payments to the defendant, and the central issue was whether these were absolute gifts, conditional gifts, or loans. The dispute reached the court following the deceased's death, and the plaintiff, as the deceased's estate, sought to recover the monies under various legal doctrines if they were not absolute gifts.

The court was required to determine the precise nature of the advances, considering the deceased's letter to a financial institution which indicated the main advance was a gift, as well as a subsequent deed executed by the deceased and the defendant. Additionally, the court had to address whether the execution of the deed could alter the status of the prior advance and whether restitution was available if the advances were conditional gifts. The court also needed to consider if an estoppel could be established based on the circumstances.

The court concluded that the deceased's letter to the financial institution and the subsequent deed did not transform the nature of the advances. The court found that the advances were conditional gifts, rather than absolute gifts or loans. The court held that restitution was available for the monies paid if the advances were indeed conditional gifts. The court also dismissed the estoppel claims, finding no basis for them on the facts. Consequently, the court ordered judgment in favour of the plaintiff, with the defendant to pay the plaintiff's costs as agreed or assessed. The court further granted liberty to the parties to apply for a different costs order within 14 days.

Orders

Orders of the court

(1) Judgment for the plaintiff.

(2) The parties are to bring in agreed short minutes of order within seven days reflecting these reasons for decision.

(3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.

(4) Liberty is granted to the parties to apply within 14 days for a different costs order to that set out in (3) above.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Assoum v Barrett [2021] NSWDC 641

Cases Citing This Decision

No citing cases yet.

Cases Cited

WLD Practice Holdings Pty Ltd v Sara Stockham [2020] NSWSC 1488
Citation 1 (Para 122)

…agraph 228 and following. Bell P and McCallum JA agreed with the reasons of the Chief Justice. See also WLD Practice Holdings Pty Ltd v Sara Stockham [2020] NSWSC 1488 at [10] per Sackar J.…
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161
Citation 2 (Para 122)

…In Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161, the Court of Appeal applied the usual principles relating to the construction of a commercial contract, to the proper construction of a Deed: see Bathurst CJ at paragraph 228 and following. Bell P and McCallum JA agree…
Braam v BBC Hardware Ltd [2020] VSCA 164
Citation 3 (Para 167)

…See also the analysis by the Victorian Court of Appeal in Braam v BBC Hardware Ltd [2020] VSCA 164 at [81]-[83]. In my view, there is no cogent evidence of the will of Ms Barrett being overborne or deflected. As she states in her oral evidence, Ms Barrett was trying to protect her position in relation to the Deed…
Flourentzou v Spink [2019] NSWCA 315
Citation 4 (Para 139)

…In Flourentzou v Spink [2019] NSWCA 315 Barrett AJA (with whom Bathurst CJ and Gleeson JA agreed) stated as follows at paragraphs 16 to 22:…
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114
Citation 5

…019] NSWSC 256 Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgerson [2019] WASCA 114 Troncone v Aliperti (1994) 6 BPR 13,291 Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 Watson v Foxman (1995) 49 NS…
Moubarak by his Tutor Coorey v Holt [2019] NSWCA 102
Citation 6 (Para 121)

…95) 49 NSWLR 315 at 319. Caution should be exercised in relation to evidence of conversations which occurred many years ago. See also Moubarak v Holt [2019] NSWCA 102 per Bell P at [77]. In general terms, where available, contemporaneous documents usually provide a surer guide.…
Spink v Flourentzou [2019] NSWSC 256
Citation 7 (Para 144)

…This obligation is consistent with the first instance decision of Robb J in Spink v Flourentzou [2019] NSWSC 256 at [323]. In essence, the entire substratum of the relationship between Ms Barrett and Mr Stainton failed. The circumstances as to the relationship are supported by the affidavits of Ms Barrett herself a…
Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24
Citation 8 (Para 154)

…nterest in the Glenhaven property by granting a right to caveat: see Troncone v Aliperti (1994) 6 BPR 13,291; cf Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 at [92]-[98]. It is unnecessary to decide this issue.…
Mei Zhang v Ye Cheng [2018] NSWCA 299
Citation 9 (Para 164)

…This decision was upheld by the Court of Appeal: Mei Zhang v Ye Chang [2018] NSWCA 299.…
Mei Zhang v Ye Cheng [2018] NSWDC 147
Citation 10 (Para 163)

…In Mei Zhang v Ye Cheng [2018] NSWDC 147 I stated the following in a different context at paragraphs 34-37:…
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12
Citation 11

…Cited: Barton v Armstrong (1973) 2 NSWLR 598 Braam v BBC Hardware Ltd [2020] VSCA 164 Ecosse Property Holdings Pty Ltd v G D Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Flourentzou v Spink [2019] NSWCA 315 Fox v Perc…
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7
Citation 12

…Pty Ltd v G D Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Flourentzou v Spink [2019] NSWCA 315 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Macquarie International Health Clinic Pty Ltd v Sydney Local Health Distri…
Australia & New Zealand Banking Group v Karam [2005] NSWCA 344
Citation 13

…34. In relation to the defence of economic duress, the Court of Appeal case of Australia and New Zealand Banking Group v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 considered economic duress in detail and found it to be a vague defence. It held that the vagueness of the concept of illegitimate pressure in economic…
Fox v Percy [2003] HCA 22
Citation 14 (Para 120)

…In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31], the majority of the High Court stated as follows:…
West v Mead [2003] NSWSC 161
Citation 15

…ility is to be addressed. That point was made by Campbell J in a passage in West v Mead (2003) 13 BPR 24,431; [2003] NSWSC 161 quoted by the primary judge in the same part of his judgment.”…
Westpac Banking Corporation v Cockerill [1998] FCA 43
Citation 16 (Para 166)

…abusive conduct in text messages other than a criticism by Mr Stainton of her alleged lavish lifestyle. In McKay v National Australia Bank [1998] 4 VR 677 Tadgell JA (with whom Batt JA agreed) stated at 690: “The proper use of legal process does not constitute duress. Thus, the threat to institute a civil a…
Wongala Holdings Pty Ltd v Mulinglebar Pty Ltd [1995] HCATrans 27
Citation 17 (Para 154)

…e Deed may have been intended to create a limited equitable interest in the Glenhaven property by granting a right to caveat: see Troncone v Aliperti (1994) 6 BPR 13,291; cf Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 at [92]-[98]. It is unnecessary to decide this issue.…
Watson v Foxman [1995] NSWCA 497
Citation 18 (Para 121)

…I also refer to the important warning comments of McLelland J in Watson v Foxman (1995) 49 NSWLR 315 at 319. Caution should be exercised in relation to evidence of conversations which occurred many years ago. See also Moubarak v Holt [2019] NSWCA 102 per Bell P at [77]. In general terms, where available, contemporaneo…
Baumgartner v Baumgartner [1987] HCA 59
Citation 19

…ined in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78, and Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, cases to which the primary judge referred in the part of his judgment in which he identified Mrs Spink’s equity in the Casula property. Such a constructive trust is imposed to prevent an…
Muschinski v Dodds [1985] HCA 78
Citation 20

…imposition) of constructive trusts according to principles explained in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78, and Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, cases to which the primary judge referred in the part of his judgment in which he identified Mrs Spink’s equity in the Ca…
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8
Citation 21 (Para 152)

…to give the agreement a meaning as objectively intended by the parties: Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 436-437. As Barwick CJ stated, no “pedantic or narrow approach” is warranted or should be adopted.…
Barton v Armstrong (1976) AC 104
Citation 22 (Para 166)

…by Mr Stainton sufficient to establish duress being a fear “which could be assumed to some extent to paralyse the will” within Barton v Armstrong (1973) 2 NSWLR 598 at 607. There were no threats of physical violence referred to. There were no threats to damage the Glenhaven property referred to. In my view, all that…

Legislation Cited

No legislation cited in this judgment.

Medium Neutral Citation:	Assoum v Barrett [2021] NSWDC 641
Hearing dates:	25 – 27 August 2021; 30 August 2021 – 1 September 2021; 17 September 2021 (written submissions); 21 September 2021 (written submissions); 14 October 2021 (oral submissions)
Date of orders:	23 November 2021
Decision date:	23 November 2021
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff. (2) The parties are to bring in agreed short minutes of order within seven days reflecting these reasons for decision. (3) The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. (4) Liberty is granted to the parties to apply within 14 days for a different costs order to that set out in (3) above.
Catchwords:	PERSONAL PROPERTY - whether advances of moneys by deceased person constituted absolute gifts, conditional gifts or a loan - relevance of deceased signing a letter to a financial institution indicating the main advance was a gift - relevance of later entry by deceased and defendant into a deed DEEDS - proper construction of deed - whether executing the deed could alter the status of a prior advance of money RESTITUTION - whether remedy available for money paid in the event that advances were determined to be a conditional gift – whether moneys paid under a mistake of fact or law ESTOPPEL - whether alleged estoppels were established on the facts
Cases Cited:	Barton v Armstrong (1973) 2 NSWLR 598 Braam v BBC Hardware Ltd [2020] VSCA 164 Ecosse Property Holdings Pty Ltd v G D Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Flourentzou v Spink [2019] NSWCA 315 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2020] NSWCA 161 McKay v National Australia Bank [1998] 4 VR 677 Mei Zhang v Ye Chang [2018] NSWCA 299 Mei Zhang v Ye Cheng [2018] NSWDC 147 Moubarak v Holt [2019] NSWCA 102 Spink v Flourentzou [2019] NSWSC 256 Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgerson [2019] WASCA 114 Troncone v Aliperti (1994) 6 BPR 13,291 Upper Hunter District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 Watson v Foxman (1995) 49 NSWLR 315 WLD Practice Holdings Pty Ltd v Sara Stockham [2020] NSWSC 1488
Category:	Principal judgment
Parties:	Barea Assoum (Plaintiff) Linda Jayne Barrett (Defendant)
Representation:	Counsel: N Condylis (Plaintiff) R Freeman (Defendant) Solicitors: Crichton-Brownes Solicitors (Plaintiff) Christopher C Freeman & Co (Defendant)
File Number(s):	2020/00193472
Publication restriction:	No