Behman v Behman

[2016] NSWCA 295

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Behman v Behman [2016] NSWCA 295

Hearing dates:

28 September 2016

Date of orders:

03 November 2016

Decision date:

03 November 2016

Before:

McColl JA at [1];
Meagher JA at [2];
Gleeson JA at [20]

Decision:

1. Appeal dismissed.
2. Appellant pay the respondent’s costs of the appeal.

Catchwords:

EQUITY – unconscionable conduct and equitable proprietary estoppel – where father and son residing in family home – where respondent son made extensive financial contributions towards cost of holding and maintaining home – where contributions made on basis of shared understanding and intention that respondent had or was entitled to an ownership interest in the home – where appellant subsequently denied respondent had or was entitled to any such interest – whether primary judge erred in finding as to shared understanding and intention – whether primary erred in finding expectation in the respondent to same effect

Cases Cited:

Baumgartner v Baumgartner (1987) 164 CLR 137 Giumelli v Giumelli (1999) 196 CLR 101
Green v Green (1987) 17 NSWLR 343
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19

Category:

Principal judgment

Parties:

Tarek Behman (also known as Terry Behman) (Appellant)
Daniel Behman (Respondent)

Representation:

Counsel:

 

P Walsh (Appellant)
J Darams with N Simpson (Respondent)

 

Solicitors:

  Elie Rahme & Associates (Appellant)
Eakin McCaffery Cox (Respondent)

File Number(s):

2015/371893

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Citation:

[2015] NSWSC 1787

Date of Decision:

23 October 2015

Before:

Rein J

File Number(s):

2014/75321

Judgment

1. McCOLL JA: I agree with Meagher JA.

2. MEAGHER JA: The appellant and respondent are father and son. In the somewhat unusual circumstances of this case the respondent was held to be entitled to a charge over the appellant’s property at Bexley North to secure the repayment of an amount of $120,000. That charge was imposed to satisfy an equity arising in circumstances where the respondent had made significant payments to his father to assist him in meeting his ongoing obligations under a mortgage of that property: Daniel Behman v Tarek Behman [2015] NSWSC 1787

3. From 2002, when the respondent’s parents were divorced, the appellant and his four sons, each then at school, continued to live in the family home. The respondent and his twin brother remained there with their two younger brothers until June 2009, when Matthew (the respondent’s twin) moved out. The respondent stopped living in the property in January 2013. At that time he was almost 24 years old. From March 2007 when he commenced university, he had been working with an accounting firm, initially on a part time basis and then on a full time basis. Until December 2012 all of the income received from that employment was paid into a bank account operated and controlled by the appellant. The total of that income was $204,000 ([9], [25]). The primary judge (Rein J) held that the amount secured by the charge ($120,000) was…