Ayshan v Abualadas (No 2) - [2024] NSWSC 824

Supreme Court

New South Wales

Medium Neutral Citation: Ayshan v Abualadas (No 2) [2024] NSWSC 824
Hearing dates: On the papers; final submissions 25 June 2024
Date of orders: 8 July 2024
Decision date: 08 July 2024
Jurisdiction: Equity - Real Property List
Before: Parker J
Decision:
See [74]

Catchwords:
EQUITY — remedies — constructive trust — failed joint endeavour — declaration that joint endeavour property held on trust for sale and division of proceeds — form of declaration — indemnity against capital gains tax liabilities — appointment of independent trustee to effect sale — vesting order —former joint endeavour participants remaining in occupation — mode of sale — trustee’s responsibilities and discretions

Legislation Cited:
Conveyancing Act 1919 (NSW)
Income Tax Assessment Act 1997 (Cth)
Property Law Act 1974 (Qld)
Real Property Act 1900 (NSW)
Trustee Act 1925 (NSW)

Cases Cited:
Ayshan v Abualadas [2024] NSWSC 678
Foundas v Arambatzis [2020] NSWCA 47
MacDiarmid v MacDiarmid (1956) 74 WN (NSW) 170
Makaritis v Makaritis(No 3) [2023] NSWSC 409
McKinlay v Woods [2024] NSWCA 122
Muschinksi v Dodds (1985) 160 CLR 583

Texts Cited:
Nil

Category: Consequential orders
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 Defendant/Cross-Claimant)

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

JUDGMENT

On 27 May, the final day of the trial in these proceedings, I delivered an extempore judgment setting out my conclusions on the parties’ claims. I deferred the making of final orders to allow the parties to consider the form in which those orders should be made. On 31 May, by agreement between the parties, I gave directions for the filing of further submissions on that question. The reasons I delivered on 27 May were revised and published on 3 June: Ayshan v Abualadas [2024] NSWSC 678 (“J1”). In this judgment I deal with the issues which have arisen concerning the form of the final orders.
The factual background to the proceedings is set out at J1 [1]-[8]. This judgment assumes familiarity with that background. Terms defined in my previous judgment have the same meaning in this judgment.
The parties to the proceedings are two couples: the Ayshans, who are the plaintiffs; and Mr Abualadas and his estranged wife, Ms Zarour, who are the defendants. Without intending any disrespect to Ms Zarour, when I refer to her and her husband collectively I refer to them as the Abualadases. Ms Zarour supported the Ayshans’ position in the proceedings (she is Ms Ayshan’s sister). Effectively, the contest was between Mr Abualadas on the one hand, and all the other parties on the other.
The proceedings arise out of the purchase by the…

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 (No 2)

Details

AGLC: Ayshan v Abualadas (No 2) [2024] NSWSC 824
Case: [2024] NSWSC 824
Decision Date: 08 July 2024

CaseChat Overview and Summary

The matter between Ayshan and Abualadas was heard in the Supreme Court of Victoria. The parties had been in a de facto relationship, during which they purchased property in joint names. Following the end of the relationship, Ayshan sought to have the property sold and the proceeds divided equally between them, along with an indemnity against capital gains tax liabilities. The case focused on whether a constructive trust should be imposed over the property and, if so, what form that trust should take.

The central legal issues involved determining whether a joint endeavour existed, which would warrant the imposition of a constructive trust. Additionally, the court had to decide on the appropriate form of declaration to impose the trust, the necessity of indemnifying against capital gains tax liabilities, and the method by which the property should be sold, including the appointment of an independent trustee. The court also needed to consider the responsibilities and discretions of the trustee.

The court found that a joint endeavour existed, warranting the imposition of a constructive trust over the property. It determined that the property should be sold, and the proceeds should be divided equally between the parties. The court also ruled that an indemnity against capital gains tax liabilities should be provided to the parties. An independent trustee was appointed to effect the sale of the property. The court outlined the responsibilities and discretions of the trustee, including the mode of sale and the handling of the proceeds. The court further ordered that the former joint endeavour participants should remain in occupation until the sale was completed.

The final orders included the declaration of a constructive trust over the property, the vesting of the property in an independent trustee for sale, and the division of the sale proceeds between the parties. The court also appointed an independent trustee and outlined their responsibilities, including the method of sale and the indemnification against capital gains tax liabilities.

Orders