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Awad v Awad

Awad v Awad

Case [2019] NSWSC 385 8 April 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Awad v Awad [2019] NSWSC 385
Hearing dates: 14-16 May 2018; 7 June 2018
Date of orders: 08 April 2019
Decision date: 08 April 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court makes the following orders:

(1) The first cross-defendant shall bring in short minutes of order reflecting this judgment within seven days of the publication of this judgment.

(2) The cross-claimant shall file and serve any written submissions in relation to the alternative relief in prayers 3 and 4 within 14 days of the publication of this judgment. Any application to adduce evidence or for an oral hearing should be made in those written submissions. If such an application is made it should be accompanied by submissions in support of the application together with, in the case of further evidence, the actual form of the evidence proposed to be led by the cross-claimant.

(3) The first cross-defendant shall file and serve any submissions in reply on or before 14 days after the receipt of submissions pursuant to order (2) above.
(4) In the event that any application for leave to lead further evidence, the Court will determine that question together with any application for a further oral hearing on the papers.
Catchwords: EQUITY – equitable estoppel – proprietary estoppel – cross-claim – oral promise – father deceased – mother incapacitated – successsorship – whether personal equity enforceable against mother – credibility of witnesses – whether promise made – reliance – whether departure from promise would be unconscionable – significance of terms of wills on non-testamentary disposition – constructive trust – alternative relief – costs – orders
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Bofinger v Kingsway Group Limited (2009) 239 CLR 269; [2009] HCA 44
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26
Equititrust Ltd v Franks (2009) 258 ALR 388; [2009] NSWCA 128
Evans v Braddock [2015] NSWSC 249
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Farah Construction Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359
Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Category: Principal judgment
Parties: Michael Awad (Cross-Claimant)
Nouhad Awad by her tutor Zouha Habib (First Cross-Defendant)
Arze Awad (Second Cross-Defendant)
Representation:
Counsel:
P R Glissan (Cross-Claimant)
J D Williams (First Cross-Defendant )
Solicitors:
Ivy Law Group (Cross-Claimant and Second Cross-Defendant)
Prominent Lawyers (First Cross-Defendant)

File Number(s): 2016/278389

TABLE OF CONTENTS
RELIEF SOUGHT - paragraph 8
COURSE OF THESE PROCEEDINGS AND RELATED…

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 Awad v Awad

Details

AGLC: Awad v Awad [2019] NSWSC 385
Case: [2019] NSWSC 385
Decision Date: 08 April 2019

CaseChat Overview and Summary

The matter of Awad v Awad was before the court, involving a dispute over an oral promise made by the deceased father to his son, regarding his entitlement to the family home. The son, who is the appellant, sought relief in equity on the basis of equitable and proprietary estoppel. The mother, who is the respondent, was incapacitated and unable to testify, and the estate of the father was represented by a litigation friend. The central issue before the court was whether the son's equity could be enforced against the mother, who was not a party to the original promise, and whether the son had relied on the promise to his detriment.

The court considered the credibility of the witnesses and the evidence presented. It examined whether the father had indeed made the promise, and if so, whether the son had relied on it to his detriment. The court also assessed whether a departure from the promise would be unconscionable, and the relevance of the terms of the wills in relation to the non-testamentary disposition. The court concluded that the son had established his case on the basis of equitable estoppel, as the father's promise was clear, unambiguous, and specific, and the son had relied on it to his detriment. The court found that the son's equity was enforceable against the mother, and that it would be unconscionable for her to depart from the promise. The court also found that the terms of the wills did not affect the non-testamentary disposition.

The court ordered that a constructive trust be imposed over the family home in favour of the son, and that the mother be required to convey the property to him. The court also considered alternative relief, but found that it was not necessary. The court awarded costs to the son, and made the appropriate orders for the enforcement of the judgment. The decision of the court was that the son was entitled to the family home, and that the mother was required to convey it to him. The case highlights the importance of clear and unambiguous promises, and the consequences of relying on such promises to one's detriment.

Orders