Isin v Ozen

[2017] NSWCA 316

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Isin v Ozen [2017] NSWCA 316
Hearing dates:	11 September 2017
Date of orders:	12 December 2017
Decision date:	12 December 2017
Before:	Macfarlan JA at [1]; Leeming JA at [2]; White JA at [3]
Decision:	Appeal dismissed with costs.
Catchwords:	EQUITY — Assignment — Of equitable interests — In real property — grant of life estate by deed — whether purported gift of fee simple was complete in equity — whether legal owners had done everything necessary required to be done by them to complete the transfer — whether transferors had relevant intention for appellant to be beneficially entitled to estate in fee simple — grant of life estate inconsistent with intention to gift estate in fee simple — whether legal owners held estate in reversion on trust for appellant — no error in primary judge’s findings
Legislation Cited:	Duties Act 1997 (NSW) s 9 Evidence Act 1995 (NSW) s 144(1)(b) Real Property Act 1900 (NSW) s 36(6)(b)(iii)
Cases Cited:	Brunker v Perpetual Trustee Co (Ltd) (1937) 57 CLR 555; [1937] HCA 29 Cope v Keene (1968) 118 CLR 1; [1968] HCA 53 Corin v Patton (1990) 169 CLR 540; [1990] HCA 12 Norman v Federal Commissioner of Taxation (1963) 109 CLR 9
Category:	Principal judgment
Parties:	Durcan Isin (1st Appellant) Ertunc Yasar Ozen (2nd Appellant) Nur Seda Ozen as Administrator of the Estate of the Late Erdinc Ozen (Respondent)
Representation:	Counsel: J C Giles SC with R Carey (Appellants) J O’Connor (Respondent)   Solicitors: MCK Lawyers (Appellants) Pelosi & Associates (Respondent)
File Number(s):	2016/324495
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Division Citation: [2016] NSWSC 1480 Date of Decision: 20 October 2016 Before: Hallen J File Number(s): 2013/381723

Judgment

1. MACFARLAN JA:   I agree with White JA.

2. LEEMING JA: I agree with White JA.

3. WHITE JA:   This is an appeal from a judgment and orders of the Equity Division (Hallen J) made on 20 October 2016 dismissing the plaintiffs’ claims.

4. As did the primary judge, I will refer to the parties, after their initial introduction, by their first names. I do so for ease of reading and intend no disrespect.

5. The appellants were the plaintiffs below. The first appellant, Mrs Durcan Isin, is the mother of the second appellant, Mr Ertunc Ozen. The respondent and defendant below is Mrs Nur Seda Ozen (known as Seda). She is the widow of Mr Erdinc Ozen and administratrix of his estate. Erdinc died on 5 March 2013. He was Durcan’s second son and Ertunc’s younger brother.

6. The appeal concerns the beneficial ownership of a property in Jean Street, Seven Hills (“the property”). As at 12 September 2016 the certificate of title shows the registered proprietors of the property as being Durcan for a life estate and Erdinc and Ertunc as tenants-in-common in equal shares of an estate in remainder. [1] Durcan, supported by Ertunc, claims that Erdinc and Ertunc intended to…