Moustapha v Nelson - [2018] NSWSC 1816

Supreme Court

New South Wales

Medium Neutral Citation: Moustapha v Nelson [2018] NSWSC 1816
Hearing dates: 16 November 2018
Date of orders: 26 November 2018
Decision date: 26 November 2018
Jurisdiction: Equity - Applications List
Before: Parker J
Decision:
The First and Second Plaintiffs’ Notice of Motion dated 25 October 2018 is dismissed.

Catchwords:
EQUITY – injunctions – interlocutory injunction – prima facie case – constructive trust claim based on the failure of a joint endeavour – where parties to the joint endeavour agree to share the proceeds of the sale of property – strength of proprietary claim

EQUITY – injunctions – interlocutory injunctions – balance of convenience – impact of delay in seeking injunctive relief – where proprietary relief sought at late stage in the proceedings – where the plaintiff failed to defend an earlier opportunity to assert their proprietary claim by application to extend caveat over the property
PRACTICE AND PROCEDURE – applications – freezing orders – whether purchasing expensive assets using money from a disputed fund is a relevant consideration in awarding a freezing order – no basis for order identified
Legislation Cited: Home Building Act 1989 (NSW), ss 7 and 7AAA
Uniform Civil Procedure Rules 2005 (NSW), rr 25.3, 25.11
Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5
Category: Procedural and other rulings
Parties: Fouad Ahmad Moustapha (First Plaintiff/First Applicant)
Overlook Tiles Pty Ltd (Second Plaintiff/Second Applicant)
Katie Nelson (Defendant/Respondent)
Representation:
Counsel:
N Obrart / A Strik (First and Second Plaintiffs/First and Second Applicants)
J Giles SC / S Hartford-Davis (Defendant/Respondent)
Solicitors:
Mona Youssef & Associates (First and Second Plaintiffs/First and Second Applicants)
David Legal (Defendant/Respondent)

File Number(s): 2017/67704
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and reissued on 5 December 2018

This is an application to restrain the defendant, Katie Nelson, from selling, disposing of or further encumbering two properties she owns at Pymble in Sydney. The proceedings concern a property development venture involving a third property at Lindfield in Sydney. The property was purchased by Ms Nelson in mid-2015. It was sold, after renovations had been carried out, in early 2017.
The first plaintiff, Fouad Ahmad (known as “Fred”) Moustapha, is a property developer. The second plaintiff, Overlook Tiles Pty Limited (“Overlook”) is a company controlled by him which sells tiles and bathroom products. Mr Moustapha’s case is that he agreed to help Ms Nelson with the development of the Lindfield property, effectively as a project manager, in return for a share of the profit from the venture.
Mr Moustapha also claims that approximately $740,000 of the costs of the project has not been paid. Of that, $160,000 is allegedly owed to Overlook for tiles and bathroom products supplied for the renovation. The balance represents costs allegedly incurred by Mr Moustapha on Ms Nelson’s behalf for work done by contractors on 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 Moustapha v Nelson

Details

AGLC: Moustapha v Nelson [2018] NSWSC 1816
Case: [2018] NSWSC 1816
Decision Date: 26 November 2018

CaseChat Overview and Summary

In Moustapha v Nelson, the plaintiff sought an interlocutory injunction to restrain the defendant from dealing with proceeds of the sale of property which the parties had previously agreed to share. The court was required to determine whether the plaintiff had established a prima facie case to support the injunction, and whether the balance of convenience favoured granting the injunction. The plaintiff's case was based on a constructive trust claim, arising from the failure of a joint endeavour. The parties had intended to share the proceeds of the sale of the property, but had not formalised this agreement in writing.

The court held that the plaintiff had established a prima facie case for the relief sought. However, the court found that the balance of convenience did not favour granting the injunction, due to the impact of delay in seeking injunctive relief and the plaintiff's failure to defend an earlier opportunity to assert their proprietary claim by application to extend a caveat over the property. The court also found that the plaintiff had not established that purchasing expensive assets using money from a disputed fund was a relevant consideration in awarding a freezing order, and that there was no basis for such an order.

The court dismissed the plaintiff's application for an interlocutory injunction and for a freezing order. The orders of the court were that the plaintiff's application be dismissed, with no order as to costs.

Orders