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Awad v Awad (No 2)

Awad v Awad (No 2)

Case [2020] NSWSC 25 30 January 2020

Admissibility of Evidence

Trusts & Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Awad v Awad (No 2) [2020] NSWSC 25
Hearing dates: On the papers
Date of orders: 30 January 2020
Decision date: 30 January 2020
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court makes the following directions:

(1) Counsel for Nouhad shall provide short minutes of order reflecting this judgment and as to the final disposition of these proceedings within 14 days of the publication of this judgment.

(2) In the event of any dispute as to the form of the orders proposed in accordance with (1) above:

(a) Nouhad shall file and serve submissions in support of the proposed orders, including as to costs, together with any evidence relied upon as to costs within 14 days of the publication of this judgment.
(b) Michael shall file and serve alternative orders and submissions and evidence (as to costs) in support thereof within 28 days of the date of the publication of this judgment.
Catchwords: EQUITY – alternative claim – constructive trusts – equitable damages – threshold issues – pleadings – notice – prospects for success – expert evidence – common intention constructive trust – joint endeavour constructive trust – equitable lien or charge – consistency with Awad No 1 – evidentiary basis for constructive trusts – leave to call further evidence refused – observations re continuance of alternative claim – directions
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Awad v Awad [2019] NSWSC 385
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Behman v Behman [2015] NSWSC 1787
Dare v Pullham (1982) 148 CLR 658; [1982] HCA 70
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Grant v Edwards [1986] Ch 638
Green v Green (1989) 17 NSWLR 343
Hewitt v Court (1983) 149 CLR 639; [1983] HCA 7
Jacobsen v Jacobsen [2017] NSWSC 1590
Madden v Kevereski (1983) 1 NSWLR 305
Maharaj v Chand [1986] AC 898
Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds (1985) 160 CLR 583
Riches v Hogben [1985] 2 Qd R 292
Shepherd v Doolan |2005] NSWSC 42
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Silvia (Trustee) v Williams [2018] FCAFC 194
West v Mead [2003] NSWSC 161
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692
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

Judgment

HIS HONOUR: By a cross-claim filed 24 May 2017 (“the cross-claim”), the cross-claimant Michael Awad (“Michael”) sought, inter alia, a declaration that he had a beneficial one-half interest in the property at Bexley in…

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 (No 2)

Details

AGLC: Awad v Awad (No 2) [2020] NSWSC 25
Case: [2020] NSWSC 25
Decision Date: 30 January 2020

CaseChat Overview and Summary

In this case, the parties involved were Awad and his former wife, who had been married and divorced. The dispute centred around property ownership and the division of assets following their divorce. The matter was heard in the Family Court of Australia. The primary legal issues revolved around the existence of constructive trusts, equitable damages, and the pleadings' adequacy in relation to these claims. The court had to determine whether there was a common intention constructive trust, a joint endeavour constructive trust, or an equitable lien or charge. Additionally, the court needed to consider the consistency of these claims with the previous case, Awad No 1, and assess the evidentiary basis for the constructive trusts.

The court began by examining the adequacy of the pleadings and whether the claims were sufficiently pleaded to provide the respondent with adequate notice and allow for a fair determination of the prospects for success. It was determined that the alternative claim of constructive trusts and equitable damages was not adequately pleaded, as it did not provide sufficient notice of the basis for the claims. Furthermore, the evidentiary basis for the constructive trusts was found to be inadequate, as the evidence did not support the existence of a common intention constructive trust, a joint endeavour constructive trust, or an equitable lien or charge. The court also noted that the alternative claim was inconsistent with the findings in Awad No 1. As a result, the court refused leave to call further evidence and directed the parties to refocus their arguments on the claims that were adequately pleaded.

In light of the court's findings, it provided directions for the continuation of the proceedings. The court emphasised the importance of adequately pleaded claims and the need for sufficient evidence to support the existence of constructive trusts. It was also observed that the alternative claim should be reconsidered, as it was not consistent with the findings in Awad No 1. The court ultimately directed the parties to refocus their arguments on the adequately pleaded claims and to provide further evidence, if necessary, to support their respective positions. The final orders of the court were not explicitly stated in the text, but it can be inferred that the court would have ordered the parties to refocus their arguments and potentially provide further evidence to support their claims.

Orders