Atia v Nusbaum - [2011] QSC 44

SUPREME COURT OF QUEENSLAND

CITATION:

Atia v Nusbaum [2011] QSC 44

PARTIES:

AARON ATIA
(Plaintiff)

v

VIOLET NUSBAUM
(Defendant)

FILE NO/S:

7194 of 2009

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

25 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2010, 31 January 2011, 1 – 4 February 2011, 7 – 8 February 2011

JUDGE:

Boddice J

ORDER:

The claim is dismissed

CATCHWORDS:

MORTGAGES – MORTGAGE CONTRACT – WHAT AMOUNTS TO A MORTGAGE – INTENTION OF THE PARTIES – Relevant factors – Where the mother (defendant) lent son (plaintiff) various sums of money over an extended period of time by way of financial assistance –Where the defendant made demand for repayment of moneys owing under a Deed of Mortgage executed in 2003 and registered against real property in the plaintiff’s name – Where the plaintiff denies any moneys owing under that mortgage – Where the plaintiff seeks declarations that the mortgage is void, invalid or otherwise unenforceable – Where the defendant counterclaims seeking to enforce the mortgage - Whether the mortgage a sham transaction not legally enforceable between the parties

British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524

Beil v Pacific View (Qld) Pty Ltd [2006] QSC 199

Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 98

Heydon v The Perpetual Executors, Trustees and Agency Company (WA) Ltd (1930) 45 CLR 111

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451

Ring Row Pty Ltd v BP Australia Pty Ltd & Ors [2005] 224 CLR 656

Sharrment Pty Ltd & Ors v Official Trustee in Bankruptcy (1988) 18 FCR 449

COUNSEL:

Sweeney for the plaintiff

Davis, SC and Crawford for the defendant

SOLICITORS:

HW Litigation for the plaintiff

ABKJ Lawyers for the defendant

[1] Violet Nusbaum (“the defendant”) is an elderly lady. She has one child, Aaron Atia (“the plaintiff”) who she raised on her own. Their previous close relationship is no more. They became estranged in 2005. In 2006 the defendant made demand for repayment of moneys owing under a Deed of Mortgage executed in 2003, and registered against real property in the plaintiff’s name. The plaintiff denies that any moneys are owing under that mortgage. He seeks declarations that the 2003 mortgage, and a notice of exercise of power of sale issued on 10 June 2009, are void, invalid or otherwise unenforceable. The defendant counterclaims seeking to enforce the mortgage entered into between the plaintiff and herself in 2003.

[2] The proceeding arises out of a history of financial transactions between the plaintiff and the defendant. Both the circumstances in which moneys were provided, and the extent, are in dispute. The plaintiff asserts any financial support was by way of gift, and that the mortgage, and an earlier mortgage executed in 1990, were sham transactions not intended to give rise to enforceable rights. He also relies on misrepresentation and estoppel. The defendant contends all moneys advanced by her to the plaintiff were loans, and the subject…

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 Atia v Nusbaum

Details

AGLC: Atia v Nusbaum [2011] QSC 44
Case: [2011] QSC 44
Decision Date: 25 March 2011

CaseChat Overview and Summary

The case of Atia v Nusbaum involved a dispute between a mother and her son regarding a mortgage over real property. The son, the plaintiff, claimed that a mortgage executed in 2003, which was registered against his property, was void and unenforceable, and sought declarations to this effect. The mother, the defendant, demanded repayment of various sums of money she had lent to the son over time, claiming these sums were secured by the mortgage. The defendant counterclaimed to enforce the mortgage, arguing that the son owed her money under the terms of the mortgage.

The central legal issue before the court was whether the mortgage was a genuine and legally enforceable transaction or whether it was a sham arrangement, not legally binding on the parties. The court considered several factors to determine the intention of the parties, including the terms of the mortgage, the history of financial transactions between the parties, and the nature of their relationship. The court also examined whether the mortgage was registered properly and whether there were any other legal impediments to its enforceability.

After careful consideration of the evidence and arguments presented, the court found that the mortgage was a genuine and legally binding agreement between the parties. The court rejected the son's claims that the mortgage was a sham transaction, noting that the financial assistance provided by the mother was clearly documented and that the mortgage was properly registered against the son's property. The court also dismissed the son's request for declarations that the mortgage was void or unenforceable.

In light of these findings, the court dismissed the son's claim and ordered that the defendant's counterclaim be allowed. The court held that the son was liable to repay the sums of money owed to the mother under the terms of the mortgage. This decision underscored the importance of the intention of the parties in determining the enforceability of a mortgage and highlighted the need for proper documentation and registration of such transactions.

Orders

Orders of the court

The claim is dismissed

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.

CITATION:	Atia v Nusbaum [2011] QSC 44
PARTIES:	AARON ATIA (Plaintiff) v VIOLET NUSBAUM (Defendant)
FILE NO/S:	7194 of 2009
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	25 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2010, 31 January 2011, 1 – 4 February 2011, 7 – 8 February 2011
JUDGE:	Boddice J
ORDER:	The claim is dismissed
CATCHWORDS:	MORTGAGES – MORTGAGE CONTRACT – WHAT AMOUNTS TO A MORTGAGE – INTENTION OF THE PARTIES – Relevant factors – Where the mother (defendant) lent son (plaintiff) various sums of money over an extended period of time by way of financial assistance –Where the defendant made demand for repayment of moneys owing under a Deed of Mortgage executed in 2003 and registered against real property in the plaintiff’s name – Where the plaintiff denies any moneys owing under that mortgage – Where the plaintiff seeks declarations that the mortgage is void, invalid or otherwise unenforceable – Where the defendant counterclaims seeking to enforce the mortgage - Whether the mortgage a sham transaction not legally enforceable between the parties British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 Beil v Pacific View (Qld) Pty Ltd [2006] QSC 199 Gurfinkel v Bentley Pty Ltd (1966) 116 CLR 98 Heydon v The Perpetual Executors, Trustees and Agency Company (WA) Ltd (1930) 45 CLR 111 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Ring Row Pty Ltd v BP Australia Pty Ltd & Ors [2005] 224 CLR 656 Sharrment Pty Ltd & Ors v Official Trustee in Bankruptcy (1988) 18 FCR 449
COUNSEL:	Sweeney for the plaintiff Davis, SC and Crawford for the defendant
SOLICITORS:	HW Litigation for the plaintiff ABKJ Lawyers for the defendant