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Menezes v Salmon

Menezes v Salmon

Case [2009] NSWSC 2 4 May 2009

Express Trust

Resulting Trust

Illegal and Void Contracts

Trusts & Equity

Contract Law

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CITATION: Menezes v Salmon [2009] NSWSC 2

HEARING DATE(S): 02/12/08, 03/12/08
(Submissions completed 04/02/2009)

JUDGMENT DATE :
4 May 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Equity. Trusts & Trustees.Express trust created inter vivos. Three properties purchased in the name of another with the purchasers executing a mortgage to secure borrowings. Two properties held to be the subject of an express trust notwithstanding the lack of writing required by s23C of the Conveyancing Act 1919. Third property the subject of a resulting trust in proportion to the contributions. - Contracts. General contractural principles. Illegal and void contracts. Operation of Foreign Acquisitions and Takeovers Act (Commonwealth) 1975. Failure to give notice. Contract not prohibited under Act and held that the failure to give notice did not make contract void.

PARTIES: Ralph (also known as Roy) Menezes v Olivia Salmon

FILE NUMBER(S): SC 2374/2005

COUNSEL: Mr J Smith for plaintiff
Mr M Watts for 1st defendant
Mr A Todd for 2nd defendant

SOLICITORS: Richard Barron for plaintiff
Anthony Buckland for 1st defendant
Brock Partners for 2nd defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Monday 4 May 2009

2374/05 Ralph (also known as Roy) Menezes v Olivia Assey & Fabian Menezes

JUDGMENT

1 His Honour: These proceedings were commenced by statement of claim filed 12 April 2005 in which the plaintiff seeks declarations as to his ownership of a number of properties. The plaintiff is Ralph Menezes (known as Roy), a citizen of India who gave evidence by way of video link. The first defendant, Olivia Assey, was until August 2001 the de-facto partner of the second defendant, Fabian Menezes, who is the plaintiff’s brother. They were at all relevant times resident in Australia. The second defendant submitted to any orders the Court might make and did not take any further part in the proceedings.

2 The first defendant and the second defendant are the registered proprietors of three properties. Two properties are located in Quakers Hill, one in Farnham Road and one in Cadac Place (the Quakers Hill properties). The third property is in Kurrajong. There are mortgages on all three properties.

3 From about 1994 to August 2001 the defendants lived together in a de-facto relationship. The defendants purchased the three disputed properties in their names and they became registered proprietors of each of the properties. Contracts and mortgages for the Farnham Road property were entered into by the defendants in March 1998. Contracts and mortgages for the Cadac Place property were entered into by the defendants in April 1998. Contracts and mortgages for the Kurrajong property were entered into by the defendants in July 1998.

Background

4 It is the plaintiff’s evidence that he began transferring significant sums of money to his brother from 1994. The plaintiff gave evidence that these sums were a loan for the purpose of buying a house with the first defendant and also for starting a business. Some of the…

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 Menezes v Salmon

Details

AGLC: Menezes v Salmon [2009] NSWSC 2
Case: [2009] NSWSC 2
Decision Date: 4 May 2009

CaseChat Overview and Summary

In the case of Menezes v Salmon, the dispute involved the interpretation of express trusts and resulting trusts in relation to three properties. The plaintiffs, Menezes, sought a declaration that they held an express trust in relation to two of the properties, and a resulting trust in relation to the third property. The defendants, Salmon, denied any such trusts existed. The case was heard in the Supreme Court of Victoria.

The court was required to determine whether the plaintiffs were entitled to an express trust in relation to two of the properties and a resulting trust in relation to the third property. Additionally, the court had to consider whether the failure to give notice under the Foreign Acquisitions and Takeovers Act (Commonwealth) 1975 rendered the contract void. The court examined the evidence of the parties' intentions and contributions towards the purchase of the properties.

The court found that two of the properties were held on express trust, despite the lack of writing required by s23C of the Conveyancing Act 1919. The court held that the evidence demonstrated that the parties intended to create an express trust in their favour. The third property was held to be subject to a resulting trust in proportion to the contributions made by the parties. The court also found that the failure to give notice under the Foreign Acquisitions and Takeovers Act (Commonwealth) 1975 did not render the contract void.

The court ordered that the two properties held on express trust be held on trust for the plaintiffs in proportion to their contributions. The third property was to be held on resulting trust for the plaintiffs and defendants in proportion to their contributions. The court also found that the contract was not void due to the failure to give notice under the Foreign Acquisitions and Takeovers Act (Commonwealth) 1975.

Orders