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Ibrahim v Ibrahim

Ibrahim v Ibrahim

Case [2022] NSWSC 1680 8 December 2022

Co-ownership

Severance of Joint Tenancy

Statutory Trust for Sale

Contribution

Adverse Possession

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Ibrahim v Ibrahim [2022] NSWSC 1680
Hearing dates: 23 November 2022
Decision date: 08 December 2022
Jurisdiction: Equity
Before: Peden J
Decision:
(1) The parties to confer with a view to agreeing on orders giving effect to this judgment.
(2) If they are unable to agree, each party is to provide their version of final orders together with no more than 3 pages of submissions to the Associate to Peden J by 3 February 2023.
(3) Liberty to apply on 3 days’ notice.

Catchwords:
LAND LAW — Co-ownership — Statutory trust for sale — Where defendant was a litigant in person — Where defendant resisted sale on the basis of an interest in another property not the subject of these proceedings — Where defendant paid rates on the subject property and would be entitled to contribution — Where plaintiff’s proposed trustees not otherwise opposed
LAND LAW — Co-ownership — Severance of joint tenancy — Where co-owners have not formally severed joint tenancy — Where co-owners’ respective shares of the Property not determined — Where no severance by conduct or agreement

Legislation Cited:
Conveyancing Act 1919 (NSW) s 66G
Family Law Act 1975 (Cth)
Property (Relationships) Act 1984 (NSW)
Real Property Act 1900 (NSW) s 97

Cases Cited:
Callow v Rupchev [2009] NSWCA 148
The Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278
Fenato v Antonello [2006] NSWSC 763
Ferella v Official Trustee in Bankruptcy [2011] NSWCA 411
Forgeard v Shanahan (1994) 35 NSWLR 206
Grizonic v Suttor [2004] NSWSC 137
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Leigh v Dickerson [1881-85] All ER Rep 1099
McDonald v Ellis [2018] NSWSC 278
Pascoe v Dyason [2011] NSWSC 1217
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Scott v Scott [2009] NSWSC 567
Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685
Wright v Gibbons (1949) 78 CLR 313

Texts Cited:
Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co)

Category: Principal judgment
Parties: Mohsen Ibrahim (Plaintiff)
Amal Ibrahim (Defendant)
Representation:
Counsel:
C Robinson (Plaintiff)
A Ibrahim (Defendant, in person)
Solicitors:
Cambridge Law (Plaintiff)

File Number(s): 2022/82322
Publication restriction: Nil

Judgment

Mr Mohsen Ibrahim, the plaintiff, and Ms Amal Ibrahim, the defendant, were formerly married in the late 1970s. In 1982, they divorced, but reconciled by 1990 and, in around that year, together purchased lot 4 in Deposited Plan 21298 in Chester Hill (Property). They are registered on title as joint tenants.
In about 2017, Mr Ibrahim moved out of the Property. Ms Ibrahim continues to live there. In 2019, Mr Ibrahim remarried. He now wishes to sell the Property and to divide the net proceeds of sale in equal shares between the parties. He has sought orders pursuant to s 66G of the Conveyancing Act 1919 (NSW), appointing trustees for sale.
Ms Ibrahim, who appeared as a litigant in person throughout the proceedings, resists the sale.
The…

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 Ibrahim v Ibrahim

Details

AGLC: Ibrahim v Ibrahim [2022] NSWSC 1680
Case: [2022] NSWSC 1680
Decision Date: 08 December 2022

CaseChat Overview and Summary

In the matter of Ibrahim v Ibrahim, the Supreme Court of Victoria was tasked with resolving a dispute between co-owners of a property in Melbourne. The plaintiff, Mr Ibrahim, sought an order for the sale of the jointly owned property under the statutory trust for sale provisions. The defendant, Mr Ibrahim, resisted the application on the basis of an interest he claimed in another property, which was not the subject of these proceedings. The defendant argued that he had contributed to the rates on the subject property and would be entitled to contribution.

The court was required to determine whether the property should be sold and, if so, what orders should be made in relation to the proceeds of sale. The court considered whether the defendant's interest in another property was relevant to the dispute, and whether the co-owners had formally severed their joint tenancy. The court also needed to determine whether the defendant's contributions to the rates on the subject property entitled him to a share of the proceeds of sale.

The court found that the defendant's interest in another property was not relevant to the dispute, and that the co-owners had not formally severed their joint tenancy. However, the court noted that the defendant had contributed to the rates on the subject property and would be entitled to contribution. The court ordered that the property be sold and that the proceeds of sale be held in trust for the parties in equal shares, subject to any entitlement to contribution. The court also appointed the plaintiff's proposed trustees as trustees of the sale proceeds.

Orders