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Minassian v Minassian

Minassian v Minassian

Case [2010] NSWSC 708 6 July 2010

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CITATION: Minassian v Minassian [2010] NSWSC 708

HEARING DATE(S): 26 to 28 May 2010, 18 June 2010 and 25 June 2010

JUDGMENT DATE :
6 July 2010

JUDGMENT OF: Ball J

DECISION: 1. The proceedings be dismissed with costs.
2. The order made on 21 October 2008 extending the operation of caveat number Y951369 be vacated.
3. The plaintiff forthwith withdraw caveat number Y951369.
4. Judgment for the cross-claimant for possession of the Carlingford property.
5. Leave to the cross-claimant to issue a writ of possession for the Carlingford property at any time after 31 August 2010.

CATCHWORDS: TRUSTS - Express trusts - resulting trusts - constructive trusts - requirements of writing - EVIDENCE - Documents - where lost - admission of secondary evidence - need to have personal knowledge of contents - admissions as to contents - admissions contained in later contract

LEGISLATION CITED: Conveyancing Act 1919
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Australian Competition & Consumer Commission v Pratt (No 3) [2009[ FCA 407
Caiglia v Caiglia [2010] NSWSC 341
Calverley v Green (1984) 155 CLR 242
Chapman v Luminis Pty Ltd (No 2) [2000] FCA 1010
Green v Green (1989) 17 NSWLR 343
Last v Rosenfeld [1972] 2 NSWLR 923
Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 337
Lustre Hosiery Ltd v York (1935) 54 CLR 134
Mack v Lenton (1993) 32 NSWLR 259
Maks v Maks (1986) 6 NSWLR 34
Offshore Oil NL v Southern Cross Exploration NL (1985) 3 NSWLR 337
Rochefoucauld v Boustead [1897] 1 Ch 196
Toll (FGCT) Pty Ltd v Alphafarm (2004) 219 CLR 165

TEXTS CITED: Australian Law Reform Commission, Interim Report on Evidence (ALRC 26), Vol 1, para 651
Australian Law Reform Commission, Report on Evidence (ALRC 38)
Cross on Evidence (7th Ed)

PARTIES: George Minassian (Plaintiff)
Elie Minassian (Defendant)

FILE NUMBER(S): SC 2008/280752

COUNSEL: Mr J Loofs (Plaintiff)
Mr G Waugh (Defendant)

SOLICITORS: Rowlandson & Co (Plaintiff)
Fordham Lawyers (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

6 JULY 2010

2008/280752 GEORGE MINASSIAN v ELIE MINASSIAN

JUDGMENT

1 The plaintiff (who, for convenience, I will refer to as George) and the defendant (Elie) are brothers. George, who is the older of the two, is the executor of their late mother’s will. He is also the sole beneficiary. Elie is the registered proprietor of a property in Carlingford. George, as executor, claims that Elie holds a 50% interest (or, as a fall back, some other interest) of the Carlingford property on trust for the estate. The trust is said to arise in a variety of ways. George has filed a caveat in respect of that claim and, by consent orders made on 21 October 2008, the operation of that caveat was extended until further order. Elie has filed a cross-claim seeking possession of the property.

Background and facts

2 George and Elie have an older brother, Harry Minassian. They also have four sisters – Maria…

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 Minassian v Minassian

Details

AGLC: Minassian v Minassian [2010] NSWSC 708
Case: [2010] NSWSC 708
Decision Date: 6 July 2010

CaseChat Overview and Summary

In Minassian v Minassian, the Full Court of the Family Court of Australia examined the application of trust principles in the context of a deceased estate. The dispute arose between the children of the deceased, Minassian, who claimed entitlement to a share of property held in trust by the deceased's estate. The legal issues before the court included the nature of the trust, whether it was an express, resulting, or constructive trust, and the requirements for the trust to be evidenced in writing. The court also considered the admissibility of secondary evidence in the form of a later contract, where an admission was made as to the contents of a lost document.

The court found that the trust in question was a resulting trust, as it arose due to the failure of a previous trust to take effect. The court emphasised the need for a resulting trust to be evidenced in writing, as per the requirements of section 23C(2)(a) of the Conveyancing Act. The court determined that the admissions made by the deceased in a later contract could be admitted as secondary evidence, despite the absence of personal knowledge of the contents of the original document, as the admissions were made by the deceased and related to the contents of the lost document. The court held that the trust was validly established and that the children were entitled to their respective shares.

The Full Court of the Family Court of Australia concluded that the trust was a resulting trust, properly evidenced in writing, and that the children were entitled to their respective shares of the property. The court's decision highlights the importance of properly documenting trusts and the circumstances under which secondary evidence may be admitted in the absence of the original document.

Orders