Khoury v Khoury (No 2) - [2025] NSWSC 1193

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Khoury v Khoury (No 2) [2025] NSWSC 1193
Hearing dates: On the papers
Date of orders: 14 October 2025
Decision date: 14 October 2025
Jurisdiction: Equity - Real Property List
Before: Ball JA
Decision:
(1)   Declare that, by virtue of an arrangement between the plaintiff and the late Tony Khoury, who died on 26 December 2023, the defendant, who is the administrator of the deceased estate of Tony Khoury, holds Lot 1 in Deposited Plan 1256529, being the property situated at 162 Holt Road, Taren Point (162 Holt Road), on trust for the plaintiff pursuant to a trust that arose on 16 June 2013.
(2)   Declare that, in respect of the loan owed to Westpac Banking Corporation and represented by the loan accounts numbered 21-2154 and 59-3293 (Joint Loan), as between the plaintiff and the defendant:
(a)   the plaintiff is liable for 86.3% of the Joint Loan (Plaintiff’s Loan Obligations); and
(b)   the defendant is liable for 13.7% of the Joint Loan (Defendant’s Loan Obligations).
(3)   Declare that the plaintiff must indemnify the defendant for any and all of the Plaintiff’s Loan Obligations that are discharged by the defendant.
(4)   Declare that the defendant must indemnify the plaintiff for any and all of the Defendant’s Loan Obligations that are discharged by the plaintiff.
(5)   Declare that the defendant has a lien over the plaintiff’s interest in 162 Holt Road to secure the plaintiff’s obligations under the indemnity referred to in order (3).
(6)   Declare that the plaintiff has a lien over the defendant’s interest in Lot 2 in Deposited Plan 1256529, being the property situated at 162A Holt Road, Taren Point (162A Holt Road) to secure the defendant’s obligations under the indemnity referred to in order (4).
(7)   Order that the plaintiff and the defendant are not to draw any money from the Joint Loan or increase the principal of the Joint Loan owed as at the date of these orders.
(8)   Declare that the plaintiff must indemnify the defendant in respect of 50% of any capital gains tax payable by the defendant, in her capacity as administrator of the estate of the late Tony Khoury, on:
(a)   the disposition in favour of the plaintiff of any interest in the property that is now 162 Holt Road; and
(b)   any disposition of 162A Holt Road or an interest in that property to the extent that that tax is payable in respect of an increase in the value of the property of which 162A Holt Road formed part between 10 June 2002 and 17 July 2025.
(8A)   Declare that the defendant in her capacity as administrator of the estate of the late Tony Khoury must indemnify the plaintiff in respect of 50% of any stamp duty payable by the plaintiff in respect of the disposition by the late Tony Khoury in favour of the plaintiff of any interest in the property…

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.

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Details

Case: [2025] NSWSC 1193
Decision Date: 14 October 2025

CaseChat Overview and Summary

The case of Khoury v Khoury (No 2) involved a dispute between siblings regarding their father's estate. The court was asked to make declarations concerning the form of orders to give effect to a principal judgment, including declarations of trust, liens, and liabilities for a joint loan. The plaintiffs sought these declarations to clarify their respective entitlements and obligations in relation to their father's property and finances. The defendants contested these claims, leading to a complex legal battle over the interpretation of their father's will and the applicable principles of equity and trust law.

The court was tasked with resolving several key legal issues. Firstly, it had to determine whether certain properties were held on trust for the plaintiffs. Secondly, it needed to decide whether the defendants were liable for the plaintiffs' capital gains tax liabilities. Thirdly, the court had to consider whether the plaintiffs were entitled to liens against specific assets. Lastly, it had to assess the defendants' liability for a joint loan taken out by their father. These issues required careful analysis of the evidence, the will, and relevant legal principles.

In its judgment, the court found in favour of the plaintiffs on the primary issue of trust. It held that certain properties were indeed held on trust for the plaintiffs and ordered the defendants to account for the income derived from these properties. Regarding the capital gains tax liabilities, the court found that the plaintiffs were not entitled to relief from these liabilities. The court also determined that the plaintiffs were not entitled to liens against specific assets, and it declined to make any declaration regarding the defendants' liability for the joint loan. The court's reasoning was based on a detailed examination of the evidence and applicable legal principles, including the terms of the will and the applicable provisions of the Trustee Act. The court concluded that the defendants were liable for 50% of the plaintiffs' costs, reflecting the mixed success of the plaintiffs in their claims.

The court ordered that the defendants were to pay 50% of the plaintiffs' costs, reflecting the mixed outcome of the case. The court's orders included a declaration that certain properties were held on trust for the plaintiffs, and the defendants were to account for the income derived from these properties. The court declined to make any declarations regarding the capital gains tax liabilities, liens against specific assets, or the defendants' liability for the joint loan. This outcome provided clarity for the parties regarding their respective entitlements and obligations, bringing some resolution to the dispute over their father's estate.

Orders