Ayshan v Abualadas (No 2)

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.