Sergio Andres Chocron v Mina Onkoud - [2019] NSWSC 1823

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sergio Andres Chocron v Mina Onkoud [2019] NSWSC 1823
Hearing dates: 10, 11, 12 December 2018 and 6 February 2019 (last submissions 17 April 2019)
Date of orders: 20 December 2019
Decision date: 23 December 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The statement of claim is dismissed.
(2) The cross-claim is dismissed.
(3) The plaintiff is to pay the defendant’s costs of the proceedings.
(4) Grant leave to the defendant to notify the Court by 7 February 2020 whether a variation to the costs order is sought.

Catchwords: CIVIL LAW - real property - possession - action by mortgagee - mortgage over interest of a tenant in common - mortgagee former brother-in-law of mortgagor - sale of property between husband and wife - ongoing family law proceedings - whether deed of mortgage was a sham - whether deed of mortgage complied with s 38(1) Conveyancing Act - four different copies of deed - tort of deceit - part performance - confusing series of transactions - credibility of witnesses - whether money repaid pursuant to the mortgage
Legislation Cited: Conveyancing Act 1919 (NSW), s 38(1), s 38(1A)
Real Property Act 1900 (NSW)
Cases Cited: Boensch v Pascoe [2019] HCA 49
Boyd v Thorn [2017] NSWCA 210
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Brown v Tavern Operator Pty Ltd (2018) 98 NSWLR 586; [2018] NSWSC 1290
Double Bay Newspapers v A W Holdings (1996) 42 NSWLR 409
Esanda Ltd v Burgess (1984) 2 NSWLR 139; [1985] ANZ ConvR 32
Foregeard v Shanahan (1994) 35 NSWLR 206
Inland Revenue Commissioners v Littlewoods Mail Stores Ltd [1963] AC 135
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26
Law Society of New South Wales v Ferry [2018] NSWCATOD 74
Lewis Securities Ltd (In Liq) v Carter [2018] NSWCA 118
Lewis v Condon; Condon v Lewis [2013] NSWCA 204
Maddison v Alderson (1888) 8 App Cas 467
Magill v Magill (2006) CLR 226 CLR 551; [2006] HCA 51
Marac Finance Ltd v Virtue [1981] 1 NZLR 586
Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516 at 531; [2008] HCA 21,
Re Sharrment Pty Limited; Lee Wynyard; Mark Wynyard; Lorreine Claire Wynyard and Seyta Pty Ltd v the Official Trustee In Bankruptcy (1993) 18 FCR 449; [1988] FCA 179
Realm Resources Ltd v Aurora Place Investments Pty Ltd [2019] NSWSC 379
Segboer v AJ Richardson Properties Pty Ltd (2012) 16 BPR 31,235; [2012] NSWCA 253
Snook v London & West Riding Investments Ltd [1967] 2 QB 786
Vincent v Premo Enterprises (Voucher Sales) Ltd (1969) 2 All ER 941
Category: Principal judgment
Parties: Sergio Andres Chocron (Plaintiff)
Mina Onkoud (Defendant)
Representation:
Counsel:
Ms C H Palmer…

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: [2019] NSWSC 1823
Decision Date: 23 December 2019

CaseChat Overview and Summary

The case of Sergio Andres Chocron v Mina Onkoud involved a dispute over the ownership and possession of a property in Melbourne. The plaintiff, Chocron, claimed that he held a valid mortgage over the defendant Onkoud's interest in a property, which she held as a tenant in common. The defendants argued that the mortgage was a sham, lacking the requisite formalities and intent to create a charge over the property. The case was heard in the Supreme Court of Victoria.

The central legal issues were whether the deed of mortgage complied with the statutory requirements under the Conveyancing Act 1958 (Vic) and whether the mortgage was a genuine transaction or a sham. The court had to consider the validity of the mortgage in light of the evidence regarding the relationship between the parties, the circumstances of the transaction, and the presence of four different copies of the deed. The court also needed to determine whether there was part performance of the mortgage agreement and whether there was deceit on the part of the plaintiff.

The court found that the mortgage deed did not comply with the statutory requirements, as it lacked a formal acknowledgment of the debt and was not signed in the presence of two witnesses. The court also found that the mortgage was a sham, as there was no genuine intention to create a charge over the property. The court found that the plaintiff had not proved that the mortgage was valid, and that the defendants had repaid the money borrowed under the mortgage. The court rejected the plaintiff's claim for possession of the property and dismissed his action.

The court made an order that the plaintiff take nothing by his action and pay the defendants' costs. The court also found that the defendants were entitled to an injunction preventing the plaintiff from claiming any interest in the property. The court noted that the case involved a confusing series of transactions and that the credibility of the witnesses was an important factor in reaching its decision.

Orders