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Behman v Behman

Behman v Behman

Case [2015] NSWSC 1787 23 October 2015

Equitable Estoppel

Constructive Trust

Unconscionable Conduct

Family Law

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Daniel Terry Behman v Tarek Behman (also known as Terry Behman) [2015] NSWSC 1787
Hearing dates: 24, 25 and 27 August 2015
Date of orders: 23 October 2015
Decision date: 23 October 2015
Jurisdiction: Equity
Before: Rein J
Decision:
See [56]

Catchwords: EQUITY - Claim for beneficial interest in property pursuant to constructive trust - plaintiff’s claim arose as a result of having lived with the defendant in a father/son relationship where the plaintiff made extensive financial contributions to the family home - Funds provided by plaintiff used to pay the mortgage and or assist the defendant to pay the mortgage - Whether common intention that plaintiff had beneficial interest in property - Whether unconscionable for the defendant to retain full beneficial ownership of property - Equitable proprietary estoppel claim
Legislation Cited: Nil
Cases Cited: Ashton v Pratt [2015] NSWCA 281; (2014) 88 NSWLR 281
Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Burns v Burns [1984] Ch 317
Delaforce v Simpson-Cook [2010] NSWCA 84
DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348; (2011) 285 ALR 311
Evans v Evans [2011] NSWCA 92
Gissing v Gissing [1971] AC 886
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Lorretta Kistmah Craig and Ors v Kia Silverbrook and Ors [2013] NSWSC 1687
Muschinski v Dodds (1985)1 60 CLR 583
Pettitt v Pettitt [1970] AC 777
Shepherd v Doolan & Ors; Shepherd v Doolan & Anor; Est. Doolan [2005] NSWSC 42
Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505
Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: Nil
Category: Principal judgment
Parties: Daniel Terry Behman (Plaintiff)
Tarek Behman (also known as Terry Behman) (Defendant)
Representation:
Counsel:
J. Darams (Plaintiff)
P. Walsh (Defendant)
Solicitors:
Eakin McCaffery Cox (Plaintiff)
Elie Rahme & Associates (Defendant)

File Number(s): 2014/75321
Publication restriction: nil

JUDGMENT

The plaintiff, Daniel Terry Behman (“Daniel”) who is 26 years of age, sues his father Tarek Behman (“Terry”) in relation to a property at 46 Oliver Street, Bexley North (“the property”) in which Terry still resides together with two brothers of Daniel, Andrew Behman (“Andrew”) and Mark Behman (“Mark”). Daniel’s twin brother, Matthew Behman (“Matthew”) moved out of the property in June 2009 and went to live with his mother Hydi Ayad (“Hydi”) in Melbourne. Hydi and Terry were divorced in 2002 with Terry obtaining custody of all four sons. The property was, at the time of the divorce, registered in Terry’s name and he was permitted to retain ownership of the property as part of the divorce settlement. Mr J Darams of counsel appears for Daniel and Mr P Walsh of counsel appears for Terry.
The property is, it is agreed,…

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 Behman v Behman

Details

AGLC: Daniel Behman v Tarek Behman [2015] NSWSC 1787
Case: [2015] NSWSC 1787
Decision Date: 23 October 2015

CaseChat Overview and Summary

In the Family Court of Australia, Behman sought a declaration of beneficial interest in a family home, which he claimed arose from his extensive financial contributions towards the mortgage and other household expenses. Behman argued that his father, the defendant, had a common intention that he would have a beneficial interest in the property, and it would be unconscionable for the defendant to retain full beneficial ownership. The court was required to determine whether there was a common intention that Behman would have a beneficial interest in the property, and if so, whether it would be unconscionable for the defendant to retain full beneficial ownership.

The court examined the evidence presented by Behman, including his financial contributions, the relationship between him and his father, and whether there was a common intention that Behman would have a beneficial interest in the property. The court found that Behman had made substantial financial contributions towards the mortgage and household expenses, but there was no clear and unequivocal common intention that he would have a beneficial interest in the property. The court also found that while Behman’s contributions were significant, they did not amount to a promise or agreement that he would have a beneficial interest in the property.

The court further considered whether it would be unconscionable for the defendant to retain full beneficial ownership of the property. The court found that while Behman’s contributions were significant, there was no evidence of a representation or assurance that he would have a beneficial interest in the property. The court also found that the defendant had not acted unconscionably in retaining full beneficial ownership of the property. The court rejected Behman’s claim for a beneficial interest in the property and dismissed his claim.

The court dismissed Behman’s claim for a declaration of beneficial interest in the property and made no order as to costs. The court found that there was no clear and unequivocal common intention that Behman would have a beneficial interest in the property, and it was not unconscionable for the defendant to retain full beneficial ownership.

Orders