Esber v Massih - [2006] NSWSC 321

CITATION: ESBER v. MASSIH [2006] NSWSC 321

HEARING DATE(S): 30, 31 May 2005; 10 June 2005; 2 Spetember 2005

JUDGMENT DATE :
26 April 2006

JURISDICTION: Equity

JUDGMENT OF: Hall J at 1

DECISION: The plaintiff is entitled to relief in terms as follows - (a) a declaration that the defendant holds half of the land known as 31 Walker Street, Merrylands, being the land comprised in Folio Identifier B/435743 on trust for the plaintiff; (b) a declaration that the plaintiff is entitled to half of any profits from the development and sale of the property being two duplex units, 31 Walker Street, Merrylands; (c) an order that trustees be appointed for the sale of the property referred to in (a) and (b) pursuant to s.66G of the Conveyancing Act 1919 (NSW); (d) an order that the said property in (a) and (b) be vested in such trustees subject to any encumbrances affecting the entirety of the land but free from encumbrances, if any, affecting any undivided share or shares therein to be held by such trustees upon the statutory trust for sale under Division 6 Part 4 of the Conveyancing Act 1919 (NSW). I propose to make declarations and orders accordingly. I propose, unless the parties wish to lodge written submissions within the next 14 days, to order that costs should follow the event and that, accordingly, the defendant pay the plaintiff’s costs of the proceedings. I grant leave to the parties to bring in short minutes of orders to give effect to the orders.

CATCHWORDS: Joint venture arrangement - plaintiff as project manager/builder - property purchased and registered only in defendant's name - plaintiff to provide skill and supervision - defendant to finance development - alleged agreement - no profit margin on costs but agreement to equally share profits on sale - circumstances of relationship consistent with joint venture partnership - suggestive of a relationship other than that of mere owner/builder - plaintiff possessed of a sufficient interest in the developed property with a right to have it sold and the proceeds divided.

LEGISLATION CITED: Home Building Act 1989
Conveyancing Act 1919

CASES CITED: Pallant v. Morgan [1953] Ch. 43
Banner Homes Group PLC v. Luff Developments Limited [2000] Ch. 372
Epple v. Wilson [1972] VR 440
Davies v. Uratoru; Davies v. Residential Tenancies Tribunal (1995) 6 BPR 13,917
Luxury Homes Pty. Limited v. Danieli [2005] NSWSC 375
Go-Tell Nominees Pty. Limited v. Nichols (1997) Supreme Court of Victoria, unreported, 3 March 1997
Simons v. David Benge Motors Pty. Limited Pty. Limited (1974) VR 585

PARTIES: Marcel ESBER v.
Charles MASSIH

FILE NUMBER(S): SC No. 3415 of 2004

COUNSEL: Plaintiff: B Debuse
Defendant: G. Sirtes

SOLICITORS: Plaintiff: Watson & Watson
Defendant: Deacons

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALL, J.

WEDNESDAY 26 APRIL 2006

No. 3415 of 2004

MARCEL ESBER v. CHARLES MASSIH

JUDGMENT

1 HIS HONOUR: The plaintiff seeks declarations and orders as set out in the amended statement of claim…

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 Esber v Massih

Details

AGLC: Esber v Massih [2006] NSWSC 321
Case: [2006] NSWSC 321
Decision Date: 26 April 2006

CaseChat Overview and Summary

In Esber v Massih, the dispute centred on the existence of a joint venture arrangement between the plaintiff, who acted as the project manager and builder, and the defendant, who financed the development. The property in question was purchased and registered solely in the defendant's name. The plaintiff claimed that there was an agreement whereby they would provide their skill and supervision, while the defendant would finance the development. The agreement stipulated no profit margin on the costs but outlined an equal sharing of profits from the sale of the property. The relationship between the parties suggested a partnership, rather than a mere owner/builder arrangement, implying that the plaintiff had a vested interest in the property and the right to have it sold and the proceeds divided accordingly.

The primary legal issue before the court was whether a joint venture arrangement existed between the parties, and if so, what were the rights and obligations of each party under that arrangement. The court had to determine if the circumstances of their relationship were consistent with a joint venture partnership and whether the plaintiff possessed a sufficient interest in the developed property, entitling them to a share of the profits upon sale.

The court examined the evidence and found that the relationship between the parties was indeed consistent with a joint venture partnership. The court noted that the plaintiff's role as project manager and builder, coupled with the defendant's financing, suggested a shared purpose and mutual benefit. The court concluded that the plaintiff had a sufficient interest in the property and was entitled to have it sold and the proceeds divided as per the terms of the alleged agreement. The court held that the plaintiff was entitled to an account of the profits and an equitable interest in the property, reflecting their contribution to the development.

The final orders of the court mandated that the property be sold, and the proceeds be divided equally between the parties, in accordance with the terms of the alleged joint venture agreement. The court also ordered that the plaintiff be compensated for their contributions to the development and awarded costs of the proceedings against the defendant.

Orders