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Samawi v Faraone

Samawi v Faraone

Case [2025] NSWSC 970 28 August 2025

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Supreme Court

New South Wales

Medium Neutral Citation: Samawi v Faraone [2025] NSWSC 970
Hearing dates: 6, 7 August 2025
Decision date: 28 August 2025
Jurisdiction: Equity - Real Property List
Before: Leeming JA
Decision:
1. The 6 page translations of emails at pp 539-547 of Exhibit A, supplied to my Associate by email dated 8 August 2025, will be incorporated within Exhibit A.
2. Declare that the property at 35 xxxxx Street, Stanhope Gardens in the State of New South Wales, being the land contained in folio identifier 101/270391, is held by the plaintiff on trust for the first defendant.
3. Paragraphs 1-3 of the Summons filed 28 November 2024 dismissed.
4. Paragraphs 2-13 of the Amended First Cross-Summons filed 6 August 2025 dismissed.
5. The parties to supply by email to my Associate agreed orders, or in default of agreement, the orders each seeks and submissions in support of such orders by 4pm Tuesday 9 September 2025.
6. The matter to be listed before me for directions at 9.30am on Wednesday 10 September 2025.

Catchwords:
EQUITY — proprietary estoppel — common intention constructive trust — land in name of daughter — whether father and daughter proceeded on basis that he would be responsible for property expenses and would retain beneficial ownership — nature of father’s contribution to the purchase price — whether daughter entitled to indemnity for expenses paid by her

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 56
Conveyancing Act 1919 (NSW) s 66G
Duties Act 1990 (NSW) s 32
Evidence Act 1995 (NSW) s 91
Residential Tenancies Act 2010 (NSW) s 119
Trustee Act 1925 (NSW) s 59
Uniform Civil Procedure Rules 2005 (NSW) rr 6.3, 42.1

Cases Cited:
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336
Butterfield v Public Trust [2017] NZCA 367; [2017] NZCCLR 27
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136
Elder’s Trustee and Executor Co Ltd v Higgins (1963) 113 CLR 426; [1963] HCA 48
Enright v Newton [2021] 2 NZLR 412; [2020] NZCA 529
Galati v Deans [2023] NSWCA 13
Gautam v Health Care Complaints Commission [2021] NSWCA 85
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd [2020] NTCA 4
Jess v Cooloola Milk Pty Ltd (2022) 292 FCR 284; [2022] FCAFC 75
Kramer v Stone [2024] HCA 48; 99 ALJR 126
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Naaman v Jaken Properties Australia Pty Ltd [2025] HCA 1; 99 ALJR 295
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25
Nolan v Collie (2003) 7 VR 287; [2003] VSCA 39
Pirrottina v Pirrottina [2025] NSWCA 55
Priestley v Priestley [2017] NSWCA 155
Quach v MLC Ltd(No 6) [2021] FCA 271

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 Samawi v Faraone

Details

AGLC: Samawi v Faraone [2025] NSWSC 970
Case: [2025] NSWSC 970
Decision Date: 28 August 2025

CaseChat Overview and Summary

In the case of Samawi v Faraone, the dispute involved the ownership and financial responsibilities of a property, specifically a house, located in Australia. The parties to the case were Samawi and Faraone, with the primary issue being whether Faraone was entitled to an indemnity for expenses he had paid towards the property. The property in question was registered in the name of Samawi's daughter, but there was a contention that the father, Samawi, had contributed to the purchase price and was intended to have beneficial ownership. The case was heard in the Supreme Court of New South Wales.

The central legal issues revolved around the principles of proprietary estoppel and common intention constructive trust. The court needed to determine if there was an agreement or representation that Samawi would be responsible for the property expenses and retain beneficial ownership. Additionally, the nature of Samawi's financial contribution and whether this warranted an indemnity for Faraone's payments had to be assessed. The court had to weigh the evidence regarding the intentions of the parties and the understandings that may have been formed regarding the property ownership and financial obligations.

The Supreme Court of New South Wales, in delivering its judgment, found that there was no clear and unequivocal representation or agreement that Samawi would be responsible for the property expenses. The court held that while Samawi had made a financial contribution to the purchase price, this did not create a proprietary estoppel or a common intention constructive trust in his favour. Consequently, Faraone was not entitled to an indemnity for the expenses he had paid. The court's decision was based on the lack of evidence supporting the existence of the claimed agreement or understanding between the parties. The court dismissed the claim for indemnity and ruled in favour of the respondent, Faraone.

The final orders of the court confirmed the dismissal of the claim for indemnity. The court ordered that Samawi was not liable to indemnify Faraone for the expenses paid towards the property. Additionally, the court made no order as to costs, leaving each party to bear their own legal expenses. This decision underscores the necessity for clear and unequivocal agreements regarding property ownership and financial responsibilities to enforce claims under proprietary estoppel or constructive trust.

Orders