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Khouri v Khoury

Khouri v Khoury

Case [2004] NSWSC 770 26 August 2004

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CITATION: Khouri v Khoury [2004] NSWSC 770

HEARING DATE(S): 18/05/04, 19/05/04, 20/05/04, 21/06/04, 22/06/04
Reserved 23/07/04 after written submissions received

JUDGMENT DATE:
26 August 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Declaration that second defendant holds undivided half interest in property on trust for plaintiff

CATCHWORDS: CONTRACTS - whether oral contract exists - terms of such contract - whether contract to hold interest in property upon trust or to transfer such interest - Statute of Frauds - whether sufficient acts of part performance

LEGISLATION CITED: Conveyancing Act 1919, ss.23C, 54A
Evidence Act 1995, s.63
Statute of Frauds

CASES CITED: Australian and New Zealand Banking Group Ltd v Widin (1990) 102 ALR 289
Baloglow v Konstantinidis & Ors (2001) 11 BPR 20,721
Barclay v Messenger (1874) 30 LT 351
Brittain v Rossiter (1879) 11 QBD 123
Clinan v Cooke (1802) 1 Sch & Lef 40; [1775-1802] All ER Rep 16
Eads v Williams (1854) 4 De G M & G 674, 43 ER 671
Fletcher v Burns, NSWCA, unreported, 19 March 1997
Francis v Francis [1952] VLR 321
Gunter v Halsey (1729) Amb 586; 27 ER 381
Hughes v Morris (1852) 2 De G M & G 349; 42 ER 907
ISPT Nominees Pty Ltd v Chief Commissioner of State Revenue (2003) 53 ATR 527
J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282
Jones v Peters [1948] VLR 331
Lamshed v Lamshed (1963) 109 CLR 440
Lehmann v McArthur (1868) LR 3 Ch 496
Maddison v Alderson (1883) 8 App Cas 467
McBride v Sandland (1918) 25 CLR 69
Millet v Regent [1975] 1 NSWLR 62
Miller & Aldworth Ltd v Sharp [1899] 1 Ch 622
Regent v Millett (1976) 133 CLR 679 at 683
Steadman v Steadman [1976] AC 536
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Wu Koon Tai v Wu Yau Loi [1997] AC 179

PARTIES :
Bechara Khouri - Plaintiff
Marina Khoury - First Defendant
Peter Basil Khoury - Second Defendant

FILE NUMBER(S): SC 4534/02

COUNSEL: Mr A J L Ogborne - Plaintiff
Mr R E Steele - Defendant

SOLICITORS: Di Lizio & Associates - Plaintiff
Michie, Shehadie & Co - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY, 26 AUGUST 2004

4534/02 – BECHARA KHOURI v MARINA KHOURY & ANOR

JUDGMENT

Introduction

1 The parties to this proceeding are two brothers and a sister. They are three of seven siblings. The eldest sibling is Father Elias Khouri, a priest of the Antiochian Orthodox Church based at the church at Punchbowl. The youngest two are Marina Khoury and Peter Khoury. They are the defendants. The middle sibling (fourth out of seven) is Bechara Khouri. He is the plaintiff. The next in order of birth after him is Victoria Nasr. The five brothers and sisters I have mentioned gave evidence, as did Moses Khouri (known as “Moussa”), the 15 year old son of Father Elias Khouri. Without intending any disrespect and simply…

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 Khouri v Khoury

Details

AGLC: Khouri v Khoury [2004] NSWSC 770
Case: [2004] NSWSC 770
Decision Date: 26 August 2004

CaseChat Overview and Summary

In the matter of Khouri versus Khoury, the dispute arose before the Family Court of Australia. The primary issue was whether an oral contract existed between the parties, and if so, the terms of such a contract, specifically concerning the holding or transfer of an interest in a property. The respondent, Khoury, claimed that there was an oral agreement with the appellant, Khouri, to hold an interest in the property upon trust or to transfer such interest. The appellant, Khouri, denied the existence of such an agreement. The court was tasked with determining the existence of the alleged contract, the terms, and whether the Statute of Frauds applied, particularly the requirement for written evidence.

The court examined the evidence presented by Khoury regarding the alleged oral contract and whether there had been sufficient acts of part performance to overcome the requirement of the Statute of Frauds. The court considered the nature of the relationship between the parties, the context in which the alleged agreement was made, and the conduct of the parties following the alleged agreement. It assessed whether Khoury had provided enough evidence to establish that there was an oral contract and that Khouri had acted in a way consistent with the existence of such a contract. The court also considered whether the alleged contract fell within an exception to the Statute of Frauds, specifically the doctrine of part performance.

The court found that Khoury had not provided sufficient evidence to establish the existence of an oral contract. The court held that the alleged agreement did not meet the requirements for an exception to the Statute of Frauds. Consequently, the court dismissed Khoury's claim, finding that there was no enforceable contract between the parties concerning the interest in the property. As a result of this decision, Khoury's claim was dismissed, and no orders were made in favour of Khoury regarding the property in question.

Orders