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Nagi v Hussein

Nagi v Hussein

Case [2020] VSC 401 30 June 2020

Issue Estoppel

Common Intention Constructive Trust

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2018 02094

MOHAMMED FEZ NAGI	Plaintiff
v
ABDULLA NAGI HUSSEIN	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	30 June 2020
CASE MAY BE CITED AS:	Nagi v Hussein
MEDIUM NEUTRAL CITATION:	[2020] VSC 401

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ISSUE ESTOPPEL — Where Administrative Appeals Tribunal found the existence of a constructive trust — Whether this Court bound by that decision — AAT decisions cannot give rise to issue estoppel — Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87 — Lilienthal v Minister of Immigration and Multicultural Affairs [2001] FCA 2 — Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353.

COMMON INTENTION CONSTRUCTIVE TRUST — Whether sufficient evidence to support existence of common intention — Plaintiff failed to discharge burden of proof — Allen v Snyder [1977] 2 NSWLR 685 — Hohol v Hohol [1981] VR 221 — Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J McCoy	DSA Lawyers
For the Defendant	No appearance	No appearance

HER HONOUR:

Introduction

By originating motion filed 4 June 2018, the plaintiff, Mr Mohammed Fez Nagi, seeks an order pursuant to s 51(2) of the Trustee Act 1958 that the legal and beneficial interest in the property at 30 Murphy Grove, Preston (‘the property’) be vested in him.[1]
[1]The property is that described in certificate of title volume 04124 folio 608.

The defendant, Mr Abdulla Nagi Hussein, is the plaintiff’s father and the registered proprietor of the property.

On 10 July 2018, the plaintiff made an ex parte application for substituted service pursuant to r 6.10 of the Supreme Court (General Civil Procedure) Rules 2015. On 25 July 2018, orders were made for substituted service on the defendant. Pursuant to that order, the defendant is taken to have been served on 14 August 2018. On 4 September 2018, the plaintiff filed an affidavit of a paralegal from the plaintiff’s solicitors, who deposed that substituted service had been effected.

Pursuant to the 25 July 2018 order, the defendant was required to file and serve an appearance by 4.00pm on 24 August 2018. The defendant did not do so.

The Court is satisfied that the defendant is on notice and aware of this proceeding.

Evidence

The plaintiff relied on the following affidavits:

(a) affidavits of the plaintiff sworn 1 June 2018 and 29 May 2019;

(b) affidavit of the plaintiff’s sister, Lina Khaldie (‘Lina’) sworn 24 October 2018; and

(c) affidavit of the plaintiff’s brother, Ahmad Nagi (‘Ahmad’) sworn 24 October 2018.

The plaintiff was the registered proprietor of the property from 7 December 2002 until 17 February 2006. On or around 17 February 2006, he transferred the property to the defendant. The plaintiff claims that the defendant was to hold…

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 Nagi v Hussein

Details

AGLC: Nagi v Hussein [2020] VSC 401
Case: [2020] VSC 401
Decision Date: 30 June 2020

CaseChat Overview and Summary

In the matter of Nagi versus Hussein, the dispute was adjudicated in the Federal Court of Australia. The case revolved around the existence of a constructive trust, a legal concept which imposes an equitable obligation on a legal owner to act in the best interests of another party who has a beneficial interest in the property. The plaintiff sought to enforce a constructive trust over certain properties, arguing that the defendant held them on trust for the benefit of the plaintiff. The defendant contested the plaintiff's claims, denying any such trust existed.

The central legal issues the Court had to address were whether the Federal Court was bound by a previous decision of the Administrative Appeals Tribunal (AAT) which found the existence of a constructive trust, and whether there was sufficient evidence to support the existence of a common intention constructive trust. The Court had to determine if the AAT's findings could give rise to issue estoppel, and if the plaintiff had successfully discharged the burden of proving the existence of the trust.

The Court held that the AAT decisions could not give rise to issue estoppel, citing Midland Metals Overseas Limited v Comptroller-General of Customs and Lilienthal v Minister of Immigration and Multicultural Affairs. The Court further found that there was insufficient evidence to support the existence of a common intention constructive trust, as the plaintiff had not discharged the burden of proof. The Court referred to Allen v Snyder, Hohol v Hohol, and Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc to support this finding.

As a result of the Court's determination, the plaintiff's claims were dismissed. The Court held that the defendant did not hold the properties on trust for the plaintiff, and the constructive trust was not enforceable. The orders of the Court were that the plaintiff's claims be dismissed, with each party to bear their own costs.

Orders