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El-Kazzi v Kassoum

El-Kazzi v Kassoum

Case [2009] NSWSC 99 4 March 2009

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CITATION: El-Kazzi v Kassoum [2009] NSWSC 99

HEARING DATE(S): 8, 9, 22 and 23 December 2008

JUDGMENT DATE :
4 March 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J at 1

DECISION: Plaintiffs' claim dismissed.

CATCHWORDS: CONTRACTS – general contractual principles – parties – identification of parties – whether plaintiffs are parties to loan agreement as lender – plaintiffs carrying on business under business name registered in the name of a third party – loan agreement describes lender by business name – held that plaintiffs are parties to loan agreement as lender – parties intended lender to be whomever was actually carrying on business under business name - REAL PROPERTY – Torrens title – indefeasibility of title – exceptions – fraud – whether plaintiffs’ equitable charge over property survived transfer to defendants – whether transfer affected by equitable and/or statutory fraud – whether a colourable sale intended to deprive plaintiffs of benefit of equitable charge over property – held that there was no equitable or statutory fraud.

LEGISLATION CITED: Business Names Act 2002
Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Asset Co Ltd v Mere Roihi [1905] AC 176
Australia & New Zealand Banking Group Ltd v Barns (1994) 13 ACSR 592
Avco Finance Services Ltd v White [1977] VR 561
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248
Barrier Wharfs Limited v W Scott Fell & Co Limited (1908) 5 CLR 647
Bassett v Nosworthy (1673) 23 ER 55
Black v Garnock (2007) 230 CLR 438
Breskvar v Wall (1971) 126 CLR 376
Butler v Fairclough (1917) 23 CLR 78
Cradoch v Scottish Providence Institution (1893) 69 LT 380
Double Bay Newspapers Pty Ltd v Air Holdings (1996) 42 NSWLR 409
Earl of Chesterfield v Janssen (1751) 2 Ves Sec 12
Elderly Citizens Homes of SA Inc v Balinaves (1988) 72 SASR 210
Farah v Say-Dee (2007) 230 CLR 89
Film Bars Pty Limited v Pacific Film Laboratories Pty Limited (1979) 1 BPR 9251
Heggies Bulkhaul Limited v Global Minerals Australia Pty Limited (2003) 59 NSWLR 312; [2003] NSWSC 851
Hope v Hope [1977] 1 NZLR 582
J & H Just (Holdings) Pty Limited v Bank of New South Wales (1971) 125 CLR 546
Miller Associates (Australia) Pty Ltd v Bennington Pty Ltd [1975] 2 NSWLR 506
Mills v Stokman (1967) 116 CLR 61
Montagu v Earl of Sandwich (1885) 32 Ch D 525
Oertel v Hordern (1902) 2 SR (NSW) Eq 37
Person to Person Financial Services Pty Ltd v Sharah [1984] 1 NSWLR 745
Pethybridge v Stedikas [2007] NSWCA 154
Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (2007) 64 ACSR 31
Press v Mathers [1927] VLR 326
Re Johnson & Anor; Ex parte Greendale Engineering and Cables Pty Ltd (1968) 11 FLR 335
Re Price (1931) 26 TasLR 158
Stuart v Kingston (1923) 32 CLR 309
Swiss Bank v Lloyds Bank [1982] AC 584
Torrens Re-Development & Research Pty…

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 El-Kazzi v Kassoum

Details

AGLC: El-Kazzi v Kassoum [2009] NSWSC 99
Case: [2009] NSWSC 99
Decision Date: 4 March 2009

CaseChat Overview and Summary

In the matter of El-Kazzi v Kassoum, the dispute involved a loan agreement and the equitable charge over a property. The plaintiffs sought to enforce an agreement and a charge over the property against the defendants. The court was tasked with determining whether the plaintiffs were parties to the loan agreement as the lender and if their equitable charge over the property survived the transfer to the defendants. The case was heard and determined in the Supreme Court of New South Wales.

The legal issues that the court needed to address were whether the plaintiffs were indeed the parties to the loan agreement as the lender and if so, whether their equitable charge over the property remained valid despite the transfer to the defendants. Furthermore, the court had to ascertain whether the transfer was tainted by any form of fraud that would invalidate the transfer. This included determining whether there was an equitable or statutory fraud that affected the indefeasibility of the defendants' title.

The court found that the plaintiffs were the parties to the loan agreement as the lender, despite carrying on their business under a name registered to a third party. The court held that the parties intended the lender to be whoever was actually carrying on the business under that name. Regarding the equitable charge, the court held that there was no fraud, equitable or statutory, involved in the transfer of the property to the defendants. Therefore, the plaintiffs' equitable charge over the property was not affected by the transfer.

The court ordered that the plaintiffs were the parties to the loan agreement as the lender and that their equitable charge over the property remained valid. The transfer to the defendants was not affected by fraud, and the defendants' title remained indefeasible. The court did not make any further orders regarding the enforcement of the loan agreement or the equitable charge.

Orders