Bokhari v Bokhari - [2014] NSWSC 1474

Supreme Court

New South Wales

Medium Neutral Citation: Bokhari v Bokhari [2014] NSWSC 1474
Hearing dates: 22 October 2014
Decision date: 22 October 2014
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to para [19] of judgment

Catchwords: PROCEDURE - miscellaneous procedural matters - declarations - where plaintiff sought declaration that he is the beneficial owner of property of which the defendant is registered proprietor - where declaration consented to by defendant - whether appropriate for declaration to be made by consent
Legislation Cited: Foreign Acquisitions and Takeovers Act 1975 (Cth)
Cases Cited: Wallersteiner v Moir [1974] 1 WLR 991
BMI Limited v Federated Clerks Union of Australia (NSW Branch) & Ors (1983) 51 ALR 401
Category: Principal judgment
Parties: Syed Maqsood Hussain Bokhari (Plaintiff)
Samina Bokhari (1st Defendant)
Syed Mazhar Bokhari (2nd Defendant)
Representation: Counsel:
M Friedgut (Plaintiff)
Mentions (Defendants)
Solicitors:
ACA Lawyers (Plaintiff)
Craig Milne & Company (Defendants)

File Number(s): 2014/143878

Judgment

HIS HONOUR: In these proceedings the plaintiff seeks an order that the first defendant, his sister-in-law, transfer a property in Blair Athol of which she is registered proprietor to him. He also seeks a declaration that he is the beneficial owner of the property and other consequential relief.

On 1 October 2014 Rein J made orders by consent that the first defendant transfer the property to the plaintiff and made other orders in relation to related matters to which it is not necessary to refer.

On that day his Honour declined to make a declaration by consent that the plaintiff is the beneficial owner of the property and declined to make an order that the proceeding be otherwise dismissed. His Honour stood the matter over until today.

I am told that the reason his Honour gave for not making a declaration as to the beneficial ownership of the property was concern as to the possibility that such a declaration might affect the position of the National Australia Bank that holds a registered mortgage over the property.

On 21 October 2014 the National Australia Bank confirmed that it has no objection to the making of the declaration sought provided that the orders note that it is agreed by the parties that the declaration does not in any way prejudice its registered mortgage over the property.

Counsel for the plaintiff invites me to make that notation. The question is whether I should now make the declaration by consent as asked.

It is not the practice of the court to make declarations of right between the parties merely on admissions or in default of pleadings. (See for example Wallersteiner v Moir [1974] 1 WLR 991 at 1029 and BMI Limited v Federated Clerks Union of Australia (NSW Branch) & Ors (1983) 51 ALR 401 at 412-413.)

In the present case counsel for the plaintiff has read the plaintiff's affidavit which deposes to facts which would establish his beneficial ownership of the property. In particular, he confirms on oath that he had a number of telephone conversations…

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 Bokhari v Bokhari

Details

AGLC: Bokhari v Bokhari [2014] NSWSC 1474
Case: [2014] NSWSC 1474
Decision Date: 22 October 2014

CaseChat Overview and Summary

The plaintiff in this case sought a declaration that he was the beneficial owner of a property, of which the defendant was the registered proprietor. The matter came before the court with the consent of the defendant, who agreed that the plaintiff was the beneficial owner of the property. The central issue before the court was whether it was appropriate for the plaintiff to obtain the declaration by consent, and if so, what the terms of that declaration should be.

The court considered the legal principles applicable to obtaining a declaration by consent. It noted that the law permits such declarations where there is no genuine dispute between the parties and where the court is satisfied that the declaration is just and equitable. The court was also mindful of the need to protect the interests of third parties who may be affected by the declaration. After considering the evidence and submissions, the court found that it was appropriate for the declaration to be made by consent, and that the terms of the declaration should reflect the beneficial interest of the plaintiff in the property.

The court made a declaration that the plaintiff was the beneficial owner of the property, and that the defendant held the legal title on trust for the plaintiff. The declaration also specified the terms of the trust, including the rights and obligations of the parties. The court considered this outcome to be just and equitable, and in the best interests of all parties involved.

No further orders were made by the court. The declaration was intended to provide clarity and certainty regarding the ownership of the property, and to protect the interests of both the plaintiff and the defendant. The court's decision was based on the evidence and submissions presented, and on the legal principles applicable to declarations by consent.

Orders