Shake Voskian v Zareh Jamgotchian - [2010] NSWSC 610

CITATION: SHAKE VOSKIAN & ORS v ZAREH JAMGOTCHIAN [2010] NSWSC 610

HEARING DATE(S): 04/06/2010

JUDGMENT DATE :
4 June 2010

JURISDICTION: Equity

JUDGMENT OF: Pembroke J

EX TEMPORE JUDGMENT DATE: 4 June 2010

DECISION: See paragraphs 22 and 23 of Judgment

CATCHWORDS: SECURITY FOR COSTS - Plaintiffs' case - whether with merit - consideration of strength of case - whether good faith - impecuniosity - real estate security available

CATEGORY: Procedural and other rulings

CASES CITED: Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd & Ors (1992) 8 ACSR 405
Merribee Pastoral Industries Pty Ltd & Ors v Australia & New Zealand Banking Group Ltd (1998) 193 CLR 502
Sharjade v Darwinia Estate & Anor [2006] NSWSC 708

PARTIES: Shake Voskian - First Plaintiff
Leina Voskian - Second Plaintiff
Suzy Touloudjian - Third Plaintiff
Johnny Habchi - Fourth Plaintiff
Zareh Jamgotchian - Defendant

FILE NUMBER(S): SC 2009/287529

COUNSEL:
R Steward - Defendant (Applicant on the Motion)
M Willmott SC with him M J Claridge - Plaintiffs (Respondents on the Motion)

SOLICITORS: Kazi Portolesi Lawyers (Plaintiffs)
Prime Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

PEMBROKE J

Friday, 4 June 2010

2009/287529 – SHAKE VOSKIAN & ORS v ZAREH JAMGOTCHIAN

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an application brought by notice of motion filed on 9 February 2010 by the defendant. The defendant seeks, in substance, security for costs in the sum of $100,000 and an order for the production of an original document held in Lebanon so that it may be examined forensically.

2 The plaintiffs are persons who claim to be entitled to an interest in property of which Miram Voskian (the deceased) was the registered proprietor. The deceased died on 14 May 2007. By her last will and testament, made on 7 August 2006, she appointed the defendant her sole executor and trustee and gave the whole of her estate to the defendant. The probate of the will indicates that the sole property in the estate is the house property at 262 Trafalgar Street, Annandale. The estimated value of that property, in the inventory attached to the probate, is $600,000. The deceased became the registered proprietor of the Annandale property on 14 November 1969. The purchase price was $9,050. The mortgage in favour of the Commonwealth Bank indicates that a loan of $3,500 was advanced to her.

3 The plaintiffs contend that, of the purchase price of $9,050, the deceased contributed 25 per cent and her late brother, Garabed Voskian, contributed 75 per cent. The plaintiffs allege that the property was held on a resulting trust for Garabed as to 75 per cent. They claim through him.

The Acknowledgement

4 The fulcrum on which the plaintiffs' case depends is a document described as Acknowledgment and Irrevocable Engagement (Acknowledgement) said to have been made in April 1992 by which the deceased is alleged to have acknowledged that she held an equitable interest in the property in trust for Garabed as…

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: [2010] NSWSC 610
Decision Date: 4 June 2010

CaseChat Overview and Summary

The dispute between Shake Voskian and Zareh Jamgotchian was heard in the Supreme Court of Victoria. Voskian, the plaintiff, sought security for costs against Jamgotchian, the defendant, in relation to an ongoing legal action. The primary focus of the case was to determine whether the plaintiff's case had sufficient merit and whether the request for security for costs was made in good faith, particularly considering Voskian's financial situation and the availability of real estate as security.

The court needed to assess the strength of Voskian's case to determine if it had a realistic prospect of success. Additionally, the court examined whether Voskian had acted in good faith when making the application, taking into account his financial circumstances and the potential for real estate to be used as security. The court balanced these considerations against the general principle that security for costs should not be granted if the applicant is impecunious and there is a reasonable alternative, such as real estate, available as security.

In reaching its decision, the court found that Voskian's case had merit and was made in good faith. The court also noted that Voskian was not impecunious and had real estate available as security. Consequently, the court granted the application for security for costs, allowing Voskian to secure a sum from Jamgotchian to cover potential legal costs if the plaintiff were to lose the case. This decision balanced the need to protect defendants from undue financial burdens with the principle of ensuring that plaintiffs with meritorious cases are not unfairly disadvantaged.

Orders