Joudo v Joudo - [2024] NSWSC 232

Supreme Court

New South Wales

Medium Neutral Citation: Joudo v Joudo [2024] NSWSC 232
Hearing dates: 12, 13 and 14 February 2024
Date of orders: 12 March 2024
Decision date: 12 March 2024
Jurisdiction: Equity
Before: Pike J
Decision:
(1)   Adjourn the proceedings to 9.30 am on 26 March 2024 or such other time as may be arranged with my Associate.
(2)   Direct the parties to confer and to seek to agree on the occupation rent to be paid by the cross-claimants and orders otherwise to give effect to this judgment and to deal with costs.
(3)   No later than 24 hours before the adjourned hearing, submit proposed orders for the purpose above in Order (2).

Catchwords:
EQUITY – alleged oral rental agreement – whether property was purchased as an investment or as part of joint endeavour with family members – purchase financed with a loan in the name of the plaintiff – cross claimants paid for completion, contributed some mortgage payments and paid some outgoings
EQUITY – remedies – failed joint endeavour – division of proceeds of sale – division of surplus – return of contributions – indexation – occupation for a period following the failure of a joint endeavour

Legislation Cited:
Nil

Cases Cited:
Allied Pastoral Holdings Pty Ltd v FCT [1983] NSWLR 1
Baumgartner v Baumgartner (1987) 164 CLR 137
Director Office of Fair Work Building Industry Inspectorate v CFMEU [2013] FCAFC 8, 231 IR 278
ET-China.com International Holdings Limited and Anor v Cheung and Others (2021) 150 ACSR 461
John Holland Pty Ltd v Kellogg Brown & Root [2015] NSWSC 451
Makaritis v Makaritis (No 2) [2022] NSWSC 1690
Makaritis v Markaritis (No 3) [2023] NSWSC 409
Muschinski v Dodds (1985) 160 CLR 583
Oneflare Pty Ltd v Chernih [2017] NSWCA 195
Payne v Parker [1976] 1 NSWLR 191
Sckaff v Sckaff [2023] NSWSC 1582
Walsh v Lonsdale (1882) 21 ChD 9
Watson v Foxman (1995) 49 NSWLR 315
Woods v MacKinlay (No 2) [2021] NSWSC 1510

Texts Cited:
Nil

Category: Principal judgment
Parties: Ravina Joudo (Plaintiff/Cross Defendant)
Maria Joudo (Defendant/First Cross Claimant)
Ronnie Joudo (Second Cross Claimant)
Representation:
Counsel:
FFF Salama and B Flaherty (Plaintiff/Cross Defendant)
M Thompson (Defendant/Cross Claimants)
Solicitors:
Ashley, Francina, Leonard & Associates (Plaintiff/Cross Defendant)
David Legal (Defendant/Cross Claimants)

File Number(s): 2022/00290628
Publication restriction: Nil

JUDGMENT

Introduction

These proceedings concern a dispute between certain members of the Joudo family in relation to the property known as 25 Robey Avenue, Middleton Grange in New South Wales (Property).
Given the common surnames of the principal players in the proceedings, I propose to refer to each of them in these reasons by their given names. I mean no disrespect in so doing.
The nub of the dispute concerns the nature of an agreement or arrangement reached in relation to the occupation of the Property. By her statement of claim filed 27 September 2022, the plaintiff (Ravina) contends that an oral agreement was entered into between her and the defendant/first cross…

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 Joudo v Joudo

Details

AGLC: Joudo v Joudo [2024] NSWSC 232
Case: [2024] NSWSC 232
Decision Date: 12 March 2024

CaseChat Overview and Summary

The case of Joudo v Joudo involved a dispute between the parties regarding the terms and nature of an alleged oral rental agreement. The primary issue was whether a property was purchased as an investment or as part of a joint endeavour with family members. The property was financed by a loan in the name of the plaintiff, and the cross-claimants contributed to the purchase and ongoing expenses. The court was tasked with determining the validity of the oral agreement, the nature of the parties' relationship concerning the property, and the appropriate division of proceeds if the joint endeavour failed.

The court considered the evidence provided by both parties and examined the contributions made by each. It assessed whether these contributions, alongside the payment of mortgage instalments and outgoings by the cross-claimants, indicated a joint venture. The court also evaluated the indexation of contributions and the implications of the property's occupation following the failure of the joint endeavour. It held that the evidence supported the existence of a joint venture rather than a mere investment, and that the cross-claimants were entitled to a return of their contributions with appropriate indexation.

Ultimately, the court found in favour of the cross-claimants, determining that the property was indeed purchased as part of a joint endeavour. The court ordered that the proceeds from the sale be divided according to the contributions made by each party, with an adjustment for indexation. Additionally, the cross-claimants were entitled to a return of their contributions with indexation applied. The court also directed that any surplus after the return of contributions be divided according to the respective shares of the parties.

Orders