Nagi Zekry v Margritte Zekry [No 2]

[2021] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0058

NAGI ZEKRY	Appellant
v
MARGRITTE ZEKRY [No 2]	Respondent

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JUDGES:	TATE, KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	17 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 23
JUDGMENT APPEALED FROM:	[2020] VSC 221 (McMillan J)

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COSTS – Appeal partially successful – Success on basis not properly ventilated at trial – New argument raised on appeal unsuccessful – No order with respect to costs of trial or appeal.

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WRITTEN SUBMISSIONS:	Counsel	Solicitors
For the Appellant	Mr M Gronow QC with Mr A Ford	Victorian Bar Duty Barristers’ scheme
For the Respondent	Ms E Konstantinou	Fleming & Rhoden Lawyers

TATE JA

KYROU JA
NIALL JA:

1. On 23 December 2020, the Court allowed an appeal from a proceeding in the Trial Division.[1]  These reasons address the question of costs in relation to both the proceeding at first instance and the appeal.

   [1]Zekry v Zekry [2020] VSC 21.

1. The appellant sought a proprietary interest in five properties owned at some point by the respondent or the appellant’s late father (‘Samir’).  The respondent, the appellant’s mother, was the sole registered proprietor of two of those properties, Hampton Park and Roxburgh Park, and legal title to the other properties had been held by either the respondent or Samir prior to their sale.  The appellant claimed an interest based on a common intention constructive trust or a joint endeavour constructive trust.[2]  The trial judge was not satisfied that the evidence established the existence of the trusts alleged and dismissed the proceeding.

   [2]Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59.

1. On appeal in this Court, the appellant sought orders to the effect that the respondent held title to Hampton Park and Roxburgh Park subject to an equitable interest in his favour on the basis of a common intention constructive trust, a joint endeavour constructive trust or a resulting trust.  The prospect of a resulting trust was raised for the first time on appeal.

1. On 23 December 2020, this Court granted leave to appeal, allowed the appeal and declared that the respondent held Hampton Park on trust as to 50 per cent for the appellant.[3]  Essentially, the Court held that it would be unconscionable for the respondent to retain full ownership of Hampton Park in circumstances where she had benefited from the series of property transactions involved in the joint endeavour between Samir and the appellant and was aware that Samir and the appellant had made arrangements in relation to the beneficial ownership of Hampton Park.

   [3]Zekry v Zekry [2020] VSCA 336.

Appellant’s submissions

1. The appellant submits that the respondent should pay his costs of the trial and the appeal in this Court on a standard basis.  The basis of his appeal was that the respondent held her interest in Hampton Park and Roxburgh Park on trust for the appellant as to 50 per cent or to the relative value of his contributions to those properties.  On the basis that this Court allowed the appeal, and ordered that the respondent holds title to Hampton Park on trust as to 50 per cent for the appellant, the appellant submits that his claims were substantially successful.

1. The appellant accepts that he was not successful on all appeal points but submits that it would not be appropriate for this Court to apportion the costs of the appeal because his claim in relation to Roxburgh Park depended on the same factual matters as his claim in relation to Hampton Park and did not necessitate substantial additional Court time, evidence or legal argument.  In addition, based on the evidence, the respondent knew or ought to have known that the appellant had an interest in Hampton park and did not act reasonably in denying it.

Respondent’s submissions

1. The respondent submits that this Court should exercise its discretion to decline to make a costs order in favour of the appellant in respect of the appeal and the decision at first instance.  Alternatively, if a costs order is to be made in favour of the appellant, he should only be awarded 50 per cent of his costs of the appeal and 50 per cent of his costs of the trial because he succeeded in relation to half of the relief sought at trial.

1. The respondent highlights the appellant’s focus on the intention of the respondent in the period surrounding the purchase of Hampton Park and the other properties at trial, which she submits confused his claims.  She also notes that the argument that the respondent had ‘constructive notice’ of the appellant’s beneficial interest in Hampton Park was not raised at trial or in the appellant’s grounds of appeal or written case before pro bono counsel became involved.  The respondent also relies on the time that was dedicated to the appellant’s new resulting trust argument on appeal, which this Court did not uphold.

Consideration

1. Having considered the written submissions of both parties, the appropriate course is to make no order with respect to the costs of the trial or of the appeal.

1. In relation to the trial, we observe that the appellant’s case was presented in a disorganised and confused manner that failed to properly identify the significance of particular documents in various tendered bundles and how they related to the causes of action upon which he relied.  In short, the appellant did not provide to the trial judge the assistance that was required in order for her to find in his favour.

1. In relation to the appeal, we note that the appellant was successful only in respect of one property on a basis that was not properly ventilated at trial and he failed in respect of the argument based on a resulting trust.  Given the relatively confined success and the significant differences between the pleaded case, the arguments on appeal and the final relief granted, we are persuaded that there should be no order as to costs.

Conclusion

1. We will make no order with respect to the costs of the trial or the appeal — with the result that the parties must bear their own costs.

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