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Meshumar v Otmy

Meshumar v Otmy

Case [2018] NSWSC 125 16 February 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Meshumar v Otmy [2018] NSWSC 125
Hearing dates: 15-18 May 2017, 13 June 2017
Date of orders: 16 February 2018
Decision date: 16 February 2018
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The plaintiff’s claim is dismissed.
(2) The plaintiff is to pay the defendant’s costs of the proceedings.

Catchwords:
EQUITY — Equitable remedies — Specific performance — Land — Where plaintiff claimed one third interest in real property as beneficiary of oral express trust — Where plaintiff did not plead existence of contract — Whether plaintiff could rely on payment of purchase price, power of attorney signed by registered proprietor and receipt of rent as acts of part performance — Whether doctrine of part performance applies to express declarations of trust.
EQUITY — Trusts and trustees — Constructive trusts — Where defendant became registered proprietor of real property in which plaintiff claimed one third interest — Where plaintiff claimed defendant promised to recognise plaintiff’s one third interest — Whether plaintiff could enforce interest against defendant that it could not enforce against original registered proprietor.
Legislation Cited: Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Arambasic v Veza (No 4) [2014] NSWSC 1109
Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1988] HCA 16
Baloglow v Konstanidis [2001] NSWCA 451
Campbell v Campbell [2015] NSWSC 784
Ciaglia v Ciaglia [2010] NSWSC 341; (2010] 269 ALR 175
Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87
Geradis v Gerges [2008] NSWSC 134
Hagan v Waterhouse (No 2) (1991) 34 NSWLR 308
Heggies Bulkhaul Ltd v Global Minerals Australia Pty Ltd (2003) 59 NSWLR 312; [2003] NSWSC 851
Heggies Bulkhaul Ltd v Global Minerals Australia Pty Ltd (2003) 59 NSWLR 312; [2003] NSWSC 851
Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184
Lai See Law v Yan Mo [2009] NSWSC 639
Merrag Pty Ltd v Khoury [2009] NSWSC 915
Re Oliver Brown Pty Ltd (No 2) [2012] NSWSC 1222
Regent v Millett (1976) 133 CLR 679
Rochefoucauld v Boustead [1897] 1 Ch 196
Ryan v Starr [2005] NSWSC 170
Secretary, Department of Social Security v James (1990) 95 ALR 615
Smilevska v Smilevska (No 2) [2016] NSWSC 397
Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462
Vlahos Pty Ltd v Vlahos [2017] VSCA 166
Vu v Nguyen [2011] NSWSC 1369
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 432; [1988] HCA 7
Category: Principal judgment
Parties: Ofir Meshumar (plaintiff)
Avshalom Sher Otmy (first defendant)
Registrar General (second defendant)
Representation:
Counsel: D F Elliot (plaintiff)
J O’Sullivan (first defendant)
Solicitors: Spectrum Legal Group Pty Limited (plaintiff)
& Legal (defendant)

File Number(s): 2015/366228

Judgment

Introduction

The plaintiff and the first defendant, who I will call Mr Meshumar and Mr Otmy respectively, are each Israeli citizens. They met and became friends when Mr Meshumar travelled to Australia in 2003.
The second defendant is the Registrar-General, who was…

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 Meshumar v Otmy

Details

AGLC: Meshumar v Otmy [2018] NSWSC 125
Case: [2018] NSWSC 125
Decision Date: 16 February 2018

CaseChat Overview and Summary

Meshumar brought a case against Otmy, seeking recognition of a one-third interest in a property based on an oral express trust. The dispute was heard in a court of equity, where Meshumar argued that his interest was supported by the payment of the purchase price, a power of attorney signed by Otmy, and the receipt of rent. The central legal issues were whether Meshumar could rely on these acts of part performance to enforce the trust, and if the doctrine of part performance could be applied to express declarations of trust.

The court examined whether Meshumar’s claims could be substantiated without pleading the existence of a contract. It considered the acts of part performance and whether they were sufficient to establish the trust. The court found that while Meshumar had made a substantial contribution to the purchase price and had received rent, these actions alone were not enough to establish the trust without a clear expression of the parties' intentions. Furthermore, the court noted that the doctrine of part performance traditionally applies to situations where there is no written contract, but this did not extend to express declarations of trust. Consequently, the court held that Meshumar’s claim was not supported by the acts of part performance or the doctrine of part performance.

In light of the above, the court ruled against Meshumar. It found that the plaintiff could not enforce his interest against Otmy based on the oral express trust. The court did not find sufficient evidence to compel Otmy to recognise Meshumar’s one-third interest in the property. Consequently, the court dismissed Meshumar's claim.

Orders