King v Abdel-Malik

[2018] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:

King v Abdel-Malik & Ors [2018] QDC 163

PARTIES:

STEPHEN KING

(plaintiff)

v

ANGELINA RACHAEL ABDEL-MALIK

(first defendant)

and

JAMIE WILLIAM POST

(second defendant)

and

AMIR ABDEL-MALIK

(third defendant)

and

ADLEY KING MALICKSON

(fourth defendant)

FILE NO/S:

86 of 2016

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Ipswich District Court

DELIVERED ON:

20 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 December 2017 and 20, 21, 22 June 2018

JUDGE:

Reid DCJ

ORDER:

In the circumstances I will hear submissions from the parties concerning the form of the order I should make. My initial view is that they should reflect the following portions:

That the plaintiff’s claim against the first and second defendants be dismissed1.          

The plaintiff is estopped from denying the first defendant the benefit of the land2.          

The plaintiff holds one third of his legal ownership in the land on trust for the benefit of the first defendant.3.          

The plaintiff grant the first defendant a license to occupy the land.4.          

The plaintiff pay the first and second defendant’s costs of and incidental to the claim and order the plaintiff also pay costs of the first defendant’s counterclaim.5.          

The second, third and fourth defendants’ counterclaims are dismissed.6.          

I make no order as to the costs of the second, third or fourth defendants’ counterclaims.7.          

CATCHWORDS:

Recovery of possession of land – equitable estoppel – whether representation made – trust – reliance – detriment – failed joint endeavour – credit – effect of amended pleadings – contemporaneous documents – demeanour

Onassis and Calogeropoulos v Vergottis (1968) 2 Lloyd’s Rep 403

Avis & Anor v Mark Bain Constructions Pty Ltd [2011] QSC 80

Giumelli v Giumelli (1999) 196 CLR 101

Riches v Hogben [1985] 2 QdR 292

Thorner v Major [2009] 1 WLR 776 (HL)

Flinn v Flinn [1999] VR 712 (CA)

Grundt v Great Boulder Pty Gold Mines (1937) 59 CLR 641

Donis v Donis (2007) 19 VR 577 (CA)

Luke v Chamberlain [2000] NSWSC 626

Muschinski v Dodds [1985] 160 CLR 583

COUNSEL:

RAI Myers for the plaintiff

W LeMass for the defendant

SOLICITORS:

Fallu McMillan for the plaintiff

Ashlar Legal for the defendant

Introduction and Pleadings

1. In this matter the plaintiff, who is the first, third and fourth defendant’s father, seeks recovery of possession of land at 110-124 Dunrad Road, Peak Crossing (also 120 Mt Flinders Road, Peak Crossing and hereafter “the land”) from the first and second defendants and consequential declarations and injunctions, together with damages for loss of possession.  The second defendant is the first defendant’s de-facto partner. They currently live together on the land which is registered in the name of the plaintiff. The third and fourth defendants, who are the first defendant’s brothers, were added as parties during the trial but the plaintiff seeks no orders against them.

1. A further Amended Defence and Counterclaim joining the third and fourth Defendants as parties was filed on 21 June 2018, being the 4^th day…