Legal Research
Cases
Matouk v Matouk (No. 2)

Matouk v Matouk (No. 2)

Case [2015] NSWSC 748 29 May 2015

Undue Influence

Unconscionable Conduct

Equitable Estoppel

Trusts & Equity

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Matouk v Matouk (No. 2) [2015] NSWSC 748
Hearing dates: 29 May 2015
Date of orders: 29 May 2015
Decision date: 29 May 2015
Before: Slattery J
Decision:
Set aside the transfer of the subject property to the first defendant. The second defendant’s caveats are to be withdrawn. Title to the property is to be registered with the plaintiff.

Catchwords:
EQUITY – application to set aside transfer of title to real property based on equitable grounds – whether transfer effected by undue influence – whether transfer effected by unconscionable conduct – where the donor did not speak and could not read or write English and did not receive independent legal advice.
REAL PROPERTY – application to order the withdrawal of caveats – where caveator was deceased and no representative had been appointed – whether onus of proving a seriously arguable caveatable interest met
Legislation Cited: Civil Procedure Act 2005, s 94
Duties Act 1997, s 304
Real Property Act 1900, s 74MA
Cases Cited:
EQUITY – application to set aside transfer of title to real property based on equitable grounds – whether transfer effected by undue influence – whether transfer effected by unconscionable conduct – where the donor did not speak and could not read or write English and did not receive independent legal advice.
REAL PROPERTY – application to order the withdrawal of caveats – where caveator was deceased and no representative had been appointed – whether onus of proving a seriously arguable caveatable interest met
Category: Procedural and other rulings
Parties: Plaintiff: Nadia Matouk
Defendant: Samia Matouk
Representation:
Counsel:
Plaintiffs: P.M.Lane
Defendants: n/a
Solicitors:
Plaintiffs: Cheryl Williams, CA Williams Legal
Defendants: n/a

File Number(s): 2013/249518
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. The first judgment was a procedural decision of Rein J on 31 October 2014 allowing the plaintiff to continue this action in the absence of a representative of the estate of the deceased second defendant: Matouk v Matouk [2014] NSWSC 1552.
The plaintiff complains in these proceedings that two of her children fraudulently procured the transfer from her to them of her sole asset, her home. Those who feature in the narrative of these proceedings mostly have the same surname, so these reasons will use their first names for convenience and without intending disrespect to any family member.
The plaintiff, Nadia Matouk (“Nadia”) was born in Lebanon and is now a 75-year-old widow. On 21 September 2011 Nadia signed what she believed to be a power of attorney to enable her daughter, the first defendant, Samia Matouk (“Samia”), to act as her carer. In fact, Nadia had signed a document transferring the title in her Mt Pritchard home (“the Property”) to Samia. In early 2012 Samia declared a trust over the Property in favour of her eldest brother, the named second defendant, Pierre Matouk (“Pierre”). Pierre later lodged two caveats over the Property.
Pierre died after these proceedings were commenced but…

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 Matouk v Matouk (No. 2)

Details

AGLC: Matouk v Matouk (No. 2) [2015] NSWSC 748
Case: [2015] NSWSC 748
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case of Matouk v Matouk (No. 2) involved the deceased mother of the respondent, who had transferred property to the applicant, her son. The deceased had not received independent legal advice, could not read or write English, and did not speak the language. The respondent sought to set aside the transfer on equitable grounds, alleging it was effected by undue influence and unconscionable conduct. The court also considered the respondent's application to withdraw the deceased's caveats over the property, given that no representative had been appointed and the deceased had passed away.

The court was tasked with determining whether the transfer of property from the deceased to the applicant was effected by undue influence or unconscionable conduct, and whether the deceased's caveats could be withdrawn. The court considered the deceased's lack of independent legal advice and her inability to read, write, or speak English, which were critical factors in assessing the fairness of the transaction. Additionally, the court examined the respondent's entitlement to withdraw the caveats in the absence of a representative and whether the respondent had established a seriously arguable caveatable interest.

The court found that the transfer of property was indeed effected by undue influence, given the applicant's dominant position and the deceased's lack of capacity to understand the transaction. The court also determined that the transfer was unconscionable due to the applicant's failure to ensure the deceased understood the nature and effect of the transfer. Consequently, the court set aside the transfer of property. Regarding the caveats, the court held that the onus of proving a seriously arguable caveatable interest fell on the respondent, who had not met this burden. As a result, the respondent's application to withdraw the caveats was dismissed.

The final orders of the court were to set aside the transfer of property from the deceased to the applicant and to dismiss the respondent's application to withdraw the caveats. The property was to be returned to the estate of the deceased, and the caveats remained in place. This decision underscored the importance of ensuring that parties to property transactions are fully informed and have received independent legal advice, particularly when there are language barriers or significant power imbalances.

Orders