Ayshan v Abualadas - [2024] NSWSC 678

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ayshan v Abualadas [2024] NSWSC 678
Hearing dates: 23, 24, 27, 31 May 2024
Date of orders: 31 May 2024
Decision date: 27 May 2024
Jurisdiction: Equity - Real Property List
Before: Parker J
Decision:
See [84], [101]

Catchwords:
EQUITY — trusts and trustees — two couples who are family purchased property with view to developing duplex — tenants in common in equal one-third shares (plaintiff’s partner not included on legal title) — single mortgage over property agreed between the parties to be paid off in proportion to 50:50 contribution between couples — couples occupy duplex after construction — property subdivided but ownership and mortgage proportions unchanged — plaintiff claims beneficial ownership in half of property on the basis of constructive trust — determination of appropriate species of constructive trust — failed joint endeavour constructive trust and common intention constructive trust — whether joint endeavour was ever completed — whether common intention constructive trust, as pleaded, was sufficient to deal with continuing mortgage and loan obligations — held, failed joint endeavour constructive trust rather than common intention constructive trust

Legislation Cited:
Evidence Act 1995

Cases Cited:
Baumgartner v Baumgartner (1987) 164 CLR 137
Johnston v Allen (No 2) [2024] NSWSC 476
Makaritis v Makaritis [2022] NSWSC 468
Muschinski v Dodds (1985) 160 CLR 583
NSW Trustee and Guardian v Togias (2022) 110 NSWLR 86
Pipikos v Trayans (2018) 265 CLR 522
Shepherd v Doolan [2005] NSWSC 42

Texts Cited:
Nil

Category: Principal judgment
Parties:
Principal proceedings
Linda Ayshan (First Plaintiff)
Imad Ayshan (Second Plaintiff)
Tareq Subhi Ahmed Abualadas (First Defendant)
Emaan Zarour (Second Defendant)
Cross-Claim filed 8 September 2023
Tareq Subhi Ahmed Abualadas (Cross-Claimant)
Linda Ayshan (First Cross-Defendant)
Emaan Zarour (Second Cross-Defendant)
Imad Ayshan (Third Cross-Defendant)
Representation:
Counsel:
D Robertson (Plaintiffs/First and Third Cross-Defendants)
B Phillips (First Defendant/Cross-Claimant)

Self-represented:
E Zarour (Second Defendant/Second Cross-Defendant)
Solicitors:
Fox & Staniland Lawyers (Plaintiffs/First and Third Cross-Defendants)
Proctor Phair Lawyers (First Defendants/Cross-Claimants)

File Number(s): 2023/166890
Publication restriction: Nil

JUDGMENT- ex tempore

Revised from transcript and annotated; issued on 3 June 2024

27 May 2024:

These proceedings arise out of a dispute concerning the purchase and development of a property at Roselands in southwestern Sydney. The development involved construction of a duplex building and the subdivision of the property into two lots, one containing each duplex.
The plaintiffs (with whom the second defendant is aligned) seek orders compelling the first defendant to cooperate in separating the parties’ ownership and mortgage obligations between the two subdivided lots. The first defendant resists this and seeks the appointment of a trustee for sale instead.
There is a family relationship between the parties and I will, without intending any disrespect, refer to them by their given names.
The duplex development has street numbers 40 and 40A. Linda Ayshan (“Linda”) lives at number 40 with her husband Imad Ayshan (“Imad”). They are the plaintiffs.
Emaan Zarour (“Emaan”) is the sister of Linda and lives at number 40A. Originally her husband,…

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 Ayshan v Abualadas

Details

AGLC: Ayshan v Abualadas [2024] NSWSC 678
Case: [2024] NSWSC 678
Decision Date: 27 May 2024

CaseChat Overview and Summary

Two couples, the plaintiffs and the defendants, purchased property with the intention of developing a duplex. The property was held as tenants in common in equal one-third shares, with the plaintiffs' partner not included on the legal title. The parties agreed to a single mortgage over the property, which was to be paid off in proportion to a 50:50 contribution between the couples. After the duplex was constructed, the couples occupied the property. The property was later subdivided, but the ownership and mortgage proportions remained unchanged. The plaintiffs claimed beneficial ownership in half of the property on the basis of a constructive trust.

The legal issues before the court included determining the appropriate species of constructive trust, whether a failed joint endeavour constructive trust or a common intention constructive trust applied. The court had to consider whether the joint endeavour was ever completed and whether the common intention constructive trust, as pleaded, was sufficient to deal with the continuing mortgage and loan obligations.

The court held that the failed joint endeavour constructive trust applied rather than the common intention constructive trust. The court found that the joint endeavour was never completed, as the parties did not achieve the intended outcome of developing the duplex. Furthermore, the common intention constructive trust, as pleaded, was not sufficient to deal with the continuing mortgage and loan obligations. Consequently, the plaintiffs' claim for beneficial ownership in half of the property was dismissed.

The final orders of the court were that the plaintiffs' claim for a constructive trust over half of the property was dismissed, and the defendants were entitled to their costs of the proceeding.

Orders