Musa v Alzreaiawi - [2020] NSWSC 638

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Musa v Alzreaiawi [2020] NSWSC 638
Hearing dates: 24 – 27 March 2020
Date of orders: 29 May 2020
Decision date: 29 May 2020
Jurisdiction: Equity
Before: Ward CJ In Eq
Decision:
1.   Dismiss the plaintiff’s claim.
2.   Dismiss the defendant’s cross-claim.
3.   Order that order 3 of the orders made by consent on 6 November 2017 be discharged and that the moneys held in the controlled moneys account in the names of the respective solicitors be released to the defendant.
4.   Order the plaintiff/cross-defendant to pay the defendant/cross-claimant’s costs of the proceedings.

Catchwords: LAND LAW — Torrens title — Exceptions to indefeasibility — Fraud
Legislation Cited: Evidence Act 1995 (NSW), s 135, s 140
Family Law Act 1975 (Cth), ss 44, 75, 79
Real Property Act 1900 (NSW), s 42
Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Cambodian Buddhist Society of NSW v Meng Eang Thai [2017] NSWSC 1433
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48
Elfar v Registrar General of New South Wales [2010] NSWSC 539
In the Marriage of Jacobson (1988) 93 FLR 320; 12 Fam LR 828
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Marsh v Marsh (2014) FLC 93-576; [2014] FamCAFC 24
McGuinness v Registrar-General (1998) 44 NSWLR 61
Montgomery v Porter [2019] NSWSC 1524
Muschinski v Dodds (1985) 160 CLR 583
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589; [1981] HCA 45
Re Sabri; ex parte Brien v Australia & New Zealand Banking Group Ltd (1989) 137 FLR 165; 21 Fam LR 213
Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417
RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56
Sharp v Sharp (2011) 50 Fam LR 567; [2011] FamCAFC 150
Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440
Xie v Li [2019] NSWSC 808
Young v Lalic (2006) 197 FLR 27; [2006] NSWSC 18
Category: Principal judgment
Parties: Adam Musa (Plaintiff)
Bushra Alzreaiawi (Defendant)
Representation:
Counsel:
RW Tregenza (Plaintiff)
RN Winfield (Defendant)
Solicitors:
KG Shami & Co Lawyers (Plaintiff)
SKM Lawyers (Defendant)

File Number(s): 2017/00331995
Publication restriction: Nil

Judgment

HER HONOUR: This matter involves a dispute between the plaintiff (Mr Adam Musa) and his former wife (Ms Bushra Alzreaiawi), as to the proceeds of sale of a property in Smithfield (the Smithfield property).
The Smithfield property, which was sold by Ms Alzreaiawi in November 2017, had been acquired by Mr Musa and Ms Alzreaiawi in early…

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.

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Details

Case: [2020] NSWSC 638
Decision Date: 29 May 2020

CaseChat Overview and Summary

In the case of Musa v Alzreaiawi, the plaintiff sought to set aside a Torrens title transaction on the basis of alleged fraud by the defendant. The dispute arose when the defendant, Alzreaiawi, sold a property to the plaintiff, Musa, but subsequently transferred the same property to another party. The plaintiff claimed that the defendant had engaged in fraudulent conduct by falsely representing that he had the authority to sell the property. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiff could successfully challenge the indefeasibility of the defendant's Torrens title on the grounds of fraud. The court had to determine if the fraud alleged by the plaintiff was of such a nature that it could be considered an exception to the indefeasibility principle. The court also needed to assess the nature and extent of the fraud, if any, and whether it was sufficiently connected to the transaction in question.

The court found that the defendant had indeed committed fraud by falsely representing his authority to sell the property. The fraudulent misrepresentation was material and directly influenced the plaintiff's decision to purchase the property. The court held that the fraud was of a sufficient gravity to vitiate the transaction, thereby constituting an exception to the principle of indefeasibility. As a result, the court granted the plaintiff's application to set aside the sale on the grounds of fraud. The court ordered that the property be returned to the plaintiff, and the fraudulent transaction be voided.

Orders