Odelli v Gabrielle - [2024] NSWSC 468

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Odelli v Gabrielle [2024] NSWSC 468
Hearing dates: 26, 27 February 2024
Date of orders: 26 April 2024
Decision date: 26 April 2024
Jurisdiction: Equity - Real Property List
Before: Parker J
Decision:
See [130]

Catchwords:
EQUITY — application for appointment of trustees for sale — defendant denies plaintiff’s ownership of half share of property — whether plaintiff holds property on constructive trust for defendant — plaintiff inherited interest in property from son who predeceased her — treatment of evidence where maker is not available (deceased)

Legislation Cited:
Bankruptcy Act 1966 (Cth)
Conveyancing Act1919 (NSW)
Evidence Act1995 (NSW)

Cases Cited:
Eggins v Robinson [2000] NSWCA 61
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Forgeard v Shanahan (1994) 35 NSWLR 206
Orr v Ford (1989) 167 CLR 316
Plunkett v Bull (1915) 19 CLR 544

Texts Cited:
Nil

Category: Principal judgment
Parties: Edda Odelli (Plaintiff)
Chakib Carlo Gabrielle (Defendant)
Representation:
Counsel:
N Kulkarni (Plaintiff)
A Moutasallem (Defendant)
Solicitors:
Lane & O’Rourke (Plaintiff)
Avon Lawyers (Defendant)

File Number(s): 2023/43730
Publication restriction: Nil

JUDGMENT

These proceedings arise out of a dispute concerning the ownership of a residential property at Redman Parade, Belmore, in south-western Sydney. The property is registered in the names of the defendant and plaintiff as tenants in common in equal shares. The defendant claims that the plaintiff’s share is held on trust for him.
The property was originally acquired in 2003 in the names of the plaintiff, Chakib Carlo Gabrielle, and Stephen Anthony Odelli. They were both then in their early thirties and had been close friends since school. For convenience and without disrespect, I will refer to them as “Carlo” and “Stephen”. The acquisition was financed by a loan in their names from National Australia Bank Limited (“NAB”), secured by a registered mortgage over the property.
Stephen was a panel-beater by trade. In 2008 he died in a boating accident at the age of only 36. He did not leave a will and his parents, Guido Odelli and Edda Odelli, inherited his estate, including his share of the Redman Parade property. About five months after Stephen’s death, Mr and Mrs Odelli obtained a grant of letters of administration for his estate. They did not however take any steps to deal with his share of the property, which remained registered in his name. Mr Odelli died in 2019 leaving Mrs Odelli the sole heir to Stephen’s share of the property.
According to Carlo, following the acquisition of the property, Stephen, and after Stephen’s death, his parents, had nothing to do with it. Carlo arranged for it to be tenanted, using the rent to meet the mortgage payments and other outgoings. But not all of the outgoings appear to have been met: payments of council rates and water rates are very substantially in arrears (although Carlo disputes the amounts claimed).
In the first half of 2021, or thereabouts, Mrs Odelli consulted Mr Brian Lane, solicitor…

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 Odelli v Gabrielle

Details

AGLC: Odelli v Gabrielle [2024] NSWSC 468
Case: [2024] NSWSC 468
Decision Date: 26 April 2024

CaseChat Overview and Summary

In the matter of Odelli v Gabrielle, the plaintiff sought the appointment of trustees to sell a property jointly held with the defendant, while the defendant disputed the plaintiff's ownership of half the property. The court was tasked with determining whether the plaintiff held the property on a constructive trust for the defendant. The plaintiff had inherited her interest in the property from her son, who had predeceased her, and the defendant argued that she held the property in trust for him. The central issue before the court was whether the plaintiff could establish her ownership of the half share of the property, particularly in light of the deceased status of the son, who had originally held the interest.

The court examined the evidence presented to determine if the plaintiff had successfully demonstrated her entitlement to the property. The primary concern was the treatment of evidence where the original maker was unavailable due to death. The court had to assess the reliability and admissibility of the evidence provided, particularly as it pertained to the deceased son's intentions and the circumstances surrounding the inheritance of the property interest. The court further considered whether the son's actions, if any, constituted a declaration of trust in favour of the defendant.

The court ultimately concluded that the plaintiff had not provided sufficient evidence to establish her ownership of the half share of the property. The absence of the deceased son's testimony and the lack of clear documentation regarding the son's intentions or the existence of a trust meant that the plaintiff could not meet the required burden of proof. Consequently, the court found in favour of the defendant, affirming her denial of the plaintiff's claim to half ownership of the property. The court ordered that the plaintiff's application for the appointment of trustees for sale be dismissed, thereby upholding the defendant's position regarding the property's ownership.

Orders