Supreme Court
New South Wales
Medium Neutral Citation: Khoury v Khoury [2025] NSWSC 760 Hearing dates: 7 to 10 July 2025 Date of orders: 17 July 2025 Decision date: 17 July 2025 Jurisdiction: Equity - Real Property List Before: Ball JA Decision: See [57]-[58]
Catchwords: EQUITY – trusts and trustees – common intention constructive trusts – informal agreement between two brothers to build duplex development – where one brother owns underlying land – each brother to occupy respective property on completion of duplex development – loan for construction costs taken out jointly and secured over the property – designers and tradespersons engaged jointly by brothers – construction completed – subdivision undertaken – where brother registered on both titles dies intestate and prior to transferring title to one lot to other brother – title to both lots transferred to deceased’s widow following transmission application – whether lot occupied by living brother held on trust for him pursuant to agreement with deceased brother – whether detriment established for purposes of common intention constructive trust – detriment established – common intention constructive trust established
Legislation Cited: Trustee Act 1925 (NSW)
Cases Cited: Galati v Deans [2023] NSWCA 13
Grant v Edwards [1986] Ch 638; 2 All ER 426
Green v Green (1989) 17 NSWLR 343
Marchese v Marchese [2021] WASC 385
Secretary, Department of Social Services v Hulett [2025] FCA 23
Category: Principal judgment Parties: Jason Khoury (Plaintiff)
Karisa Lee Khoury (Defendant)Representation: Counsel:
Solicitors:
N Kulkarni (Plaintiff)
AL Connolly (Defendant)
Lane and O’Rourke (Plaintiff)
Muscat Law (Defendant)
File Number(s): 2024/279596 Publication restriction: None
JUDGMENT
Introduction
-
The plaintiff, Mr Jason Khoury (Jason), and his late brother, Mr Tony Khoury (Tony), were very close. They had worked together originally in the family fruit shop business in Sans Souci, NSW with their father and another brother, Mr John Khoury (John). In 2005, Tony, Jason and John through a family company, GY Khoury & Sons Pty Ltd, purchased another fruit shop business at Westfield Mount Druitt, NSW which operated successfully until 2022, when it was forced to close as a result of the COVID-19 pandemic. Subsequently, Jason and Tony bought a fruit shop in Sutherland, NSW through Fresh N Full Pty Ltd, a company they had incorporated in November 2022. They operated that fruit shop together until Tony’s unexpected death on 26 December 2023 at the age of 43.
-
In 2013, Jason and Tony built duplex houses on land in Holt Road, Taren Point (the Property) that Tony had acquired in June 2002 for $457,000 using funds he had borrowed from Westpac Banking Corporation (Westpac). The costs of building the duplex houses were also financed by a loan from Westpac which was secured over the Property.
-
On completion of the building work, Tony and his family moved into the house known as 162A Holt Road and Jason and his family moved into the house known as 162 Holt Road. Jason was principally responsible for making the…
Continue reading Khoury v Khoury
Sign in free to access the full text
- AGLC
- Khoury v Khoury [2025] NSWSC 760
- Case
- [2025] NSWSC 760
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether a common intention constructive trust existed over the property occupied by the living brother, based on the informal agreement. This required the court to examine the nature and content of the agreement, the intentions of the parties, and whether the living brother had suffered a detriment that could give rise to a common intention constructive trust. The court also had to consider whether the deceased brother's failure to transfer title to the living brother before his death could be sufficient to establish the trust.
The court held that the living brother did hold the property on trust for his deceased brother, pursuant to their informal agreement. The court found that the agreement established a common intention that the living brother would occupy one of the lots, and that this intention was manifested in the actions of both parties. The court determined that the living brother had suffered a detriment by contributing to the construction costs and by forgoing other opportunities, which was sufficient to establish the requisite detriment for a common intention constructive trust. Consequently, the court held that the deceased brother held the property on trust for the living brother.
The final orders of the court were not explicitly detailed in the provided text, but it is reasonable to infer that the court would have ordered the deceased brother's widow to hold the property in trust for the living brother, in accordance with the terms of the informal agreement. This would ensure that the living brother's interest in the property is recognised and protected, reflecting the equitable principles underpinning the common intention constructive trust.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.