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Faraday v Rappaport

Faraday v Rappaport

Case [2007] NSWSC 34 7 March 2007

Breach of Contract

Agreements not intended to create legal relations

Limitation Periods

Contract Law

Civil Litigation & Procedure

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CITATION: Steven Faraday v Thomas Gabor Rappaport & 2 Ors;Steven Faraday v Thomas Gabor Rappaport ;Rosalia Rappaport by her tutor Thomas Gabor Rappaport v Steven Faraday [2007] NSWSC 34

HEARING DATE(S): 7-11/08/06, 14-17/08/06, 21/02/07 and written submissions.

JUDGMENT DATE :
7 March 2007

JURISDICTION: Equity Division

JUDGMENT OF: White J

DECISION: See paragraphs 291-294 of judgment.

CATCHWORDS: CONTRACTS – Plaintiff in proceedings no. 2649/02 claimed beneficial interest in properties in New South Wales and Queensland held by third defendant on trust for first and second defendants – Where plaintiff paid moneys to first defendant for purposes of property investment but did not reach agreement with defendant that plaintiff should have any defined beneficial interest in properties – Where no compliance with ss 23C or 54A Conveyancing Act 1991 (NSW) or ss 11 or 59 Property Law Act 1974 (Qld) – Where no evidence of acts of part performance – Khoury v Khouri [2006] NSWCA 184 applied – Held that plaintiff not entitled to beneficial interest in properties - CONTRACTS – Agreements not intended to create legal relations – Domestic, social and other agreements – Plaintiff in proceedings no. 3668/03 claimed that defendant agreed to leave property to plaintiff upon defendant’s death in exchange for moneys contributing towards purchase price of property – Whether plaintiff and defendant intended to create legal relations – Held that plaintiff contributed moneys to defendant as gift - LIMITATION OF ACTIONS – Plaintiff in proceedings no. 3668/03 claimed that defendant failed upon demand to return moneys and goods given to defendant for safekeeping – Plaintiff’s claim in detinue – Plaintiff’s claim statute-barred by virtue of ss 14 and 21 Limitation Act 1969 (NSW) – No questions of principle.

LEGISLATION CITED: Limitation Act 1969 (NSW)
Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Property Law Act 1974 (Qld)
Civil Procedure Act 2005 (NSW)

CASES CITED: Khoury & Anor v Khouri [2006] NSWCA 184
Young v Queensland Trustees Ltd (1956) 99 CLR 560
Ogilvie v Adams [1981] VR 1041
Haller v Ayre [2005] 2 Qd R 410
Hamilton v Kaljo (1989) 17 NSWLR 381
Bannister v Bannister [1948] 2 All ER 133

PARTIES: Steven Faraday
v
Thomas Gabor Rappaport & 2 Ors;
Steven Faraday
v
Thomas Gabor Rappaport;
Rosalia Rappaport by her tutor Thomas Gabor Rappaport
v
Steven Faraday

FILE NUMBER(S): SC 2649/02 ; 1684/03 ; 3668/03

COUNSEL: Plaintiff: In Person
Defendant: M A Bradford

SOLICITORS: Plaintiff: N/A
Defendants: Slater & Gordon

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 7 March 2007

2649/02 Steven Faraday v Thomas Gabor Rappaport & 2 Ors
1684/03 Steven Faraday v Thomas Gabor Rappaport
3668/03 Rosalia Rappaport by her tutor Thomas Gabor Rappaport v Steven Faraday

JUDGMENT

1 HIS HONOUR: These three proceedings were heard together. Mr Steven Faraday (known as Steve Faraday) was the brother of Mrs Rosalia Rappaport. She died on 26 May 2006. Her only child was her son, Mr Thomas Rappaport. Because these proceedings concern five members of the Rappaport family, I…

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 Faraday v Rappaport

Details

AGLC: Faraday v Rappaport [2007] NSWSC 34
Case: [2007] NSWSC 34
Decision Date: 7 March 2007

CaseChat Overview and Summary

In the matter of Faraday v Rappaport, the plaintiff sought to establish a beneficial interest in properties located in New South Wales and Queensland, which were held by a third party on trust for the first and second defendants. The plaintiff's claim arose from an alleged agreement with the first defendant to invest in property, but the plaintiff did not reach an agreement with the defendant that they would have any defined beneficial interest in the properties. The case before the court involved determining whether the plaintiff was entitled to a beneficial interest in the properties in question and whether there was an agreement that created legal relations between the plaintiff and the defendant regarding the transfer of property upon the defendant's death.

The court considered whether the plaintiff and the first defendant had intended to create legal relations regarding the beneficial interest in the properties, in accordance with the statutory requirements under the Conveyancing Act 1991 (NSW) and the Property Law Act 1974 (Qld). The court also examined whether the plaintiff's contributions to the first defendant were intended as a gift or an investment, and whether the plaintiff had any claim for the return of moneys and goods given to the defendant for safekeeping. The court found that there was no evidence of the parties' intention to create legal relations regarding the beneficial interest in the properties, and that the plaintiff's contributions were made as a gift. Furthermore, the court held that the plaintiff's claim for the return of moneys and goods was statute-barred under the Limitation Act 1969 (NSW).

In conclusion, the court found that the plaintiff was not entitled to a beneficial interest in the properties held by the third defendant, and that the plaintiff's claim for the return of moneys and goods was statute-barred. The court dismissed the plaintiff's claims in their entirety.

Orders