Kalam v Kalam - [2015] VSC 72

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2012 05981

JAWAD KALAM

Plaintiff

AKHTAR KALAM

SHAMSHA KALAM

THE REGISTRAR OF TITLES

First Defendant

Second Defendant

Third Defendant

-and-

AKHTAR KALAM

SHAMSHA KALAM

JAWAD KALAM

THE REGISTRAR OF TITLES

Plaintiff by First Counterclaim

Plaintiff by Second Counterclaim

First Defendant to First and Second Counterclaims

Second Defendant to First and Second Counterclaims

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:	RUSH J
WHERE HELD:	Melbourne
DATES OF HEARING:	18, 19, 20, 23 and 24 June 2014
DATE OF JUDGMENT:	4 March 2015
CASE MAY BE CITED AS:	Kalam v Kalam & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 72

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TRUSTS – Transfer of funds by plaintiff to first defendant contributing towards purchase of a residential property – Nature of plaintiff’s interest in the property – First defendant and second defendant registered on title – Plaintiff not registered on title – Whether transfer of funds operated as a gift, a loan or a payment of money to be held on trust to acquire a joint interest in the property – Whether the funds were repaid – Whether the plaintiff’s interest in the property was held on a resulting or constructive trust – Plaintiff holds a 50% interest in the property as a tenant in common – Plaintiff’s interest held on resulting trust by the first defendant and the second defendant – Calverley v Green (1984) 155 CLR 242 – Ong & Anor v Lottwo Pty Ltd (in liq) (2013) 304 ALR 651 – Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 – Delehunt v Carmody (1986) 161 CLR 464.

REAL PROPERTY – Plaintiff and first defendant registered as joint proprietors of subsequent property – Nature of plaintiff’s interest in the property – Whether plaintiff made financial contributions to the purchase and improvement of the property – Whether plaintiff holds a beneficial interest in the property together with first defendant in equal shares – Whether plaintiff holds interest subject to a resulting trust in favour of the first defendant and second defendant – Whether plaintiff holds interest as security for an obligation to repay gift or loan amount – Whether signed transfer of land form is valid – Plaintiff holds interest in the property with the first defendant as a tenant in common in equal shares of 50% – Plaintiff’s interest not subject to any equity in favour of the second defendant – Instruments Act 1958.

CREDIBILITY – Issues concerning credibility of key witnesses.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L.M.F. Watts	Chiodo Madafferi Solicitors
For the First and Second Defendants	Mr D.G. Collins QC with Mr R.L. Moore	Logie-Smith Lanyon Lawyers
For the Third Defendant	No appearance

HIS HONOUR:

Introduction

This proceeding primarily involves a family dispute concerning the proprietorship of a house and land at 45 Stuart Street, Moonee Ponds, Victoria (the ‘Moonee Ponds Property’). The plaintiff, Jawad Kalam (‘Jawad’), and the first defendant, Akhtar Kalam (‘Akhtar’), are brothers. Both Jawad and…

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 Kalam v Kalam

Details

AGLC: Kalam v Kalam [2015] VSC 72
Case: [2015] VSC 72
Decision Date: 4 March 2015

CaseChat Overview and Summary

In the case of Kalam v Kalam, the plaintiff sought a declaration of their beneficial interest in two residential properties. The first defendant and second defendant, who were the plaintiff's spouse and his brother respectively, were the registered proprietors of the first property. The first defendant and the plaintiff were the registered proprietors of the second property. The plaintiff claimed a 50% beneficial interest in both properties.

The court was required to determine whether the plaintiff's interest in the properties arose from a gift, a loan, or a payment to be held on trust. The court also needed to consider whether the plaintiff's interest was held on a resulting or constructive trust, and whether the plaintiff had made financial contributions to the purchase and improvement of the properties. Additionally, the court had to assess the credibility of key witnesses, including the plaintiff.

The court found that the plaintiff had a 50% beneficial interest in the first property as a tenant in common with the first and second defendants. The court held that the plaintiff's interest in the first property was held on a resulting trust by the first and second defendants. The court also found that the plaintiff had a 50% beneficial interest in the second property as a tenant in common with the first defendant. The court held that the plaintiff's interest in the second property was not subject to any equity in favour of the second defendant. The court found the plaintiff to be a credible witness.

The court ordered that the plaintiff and the first defendant hold the first property as tenants in common in equal shares of 50%. The court also ordered that the plaintiff and the first defendant hold the second property as tenants in common in equal shares of 50%. The court did not order any further relief.

Orders