Supreme Court
New South Wales
Medium Neutral Citation: Sharkey v Nissi [2015] NSWSC 1266 Hearing dates: 16 – 20 February 2015 and 9 March 2015 Date of orders: 02 September 2015 Decision date: 02 September 2015 Jurisdiction: Equity Before: Robb J Decision: (1) The plaintiff’s claim is dismissed.
(2) The first cross defendant is ordered to pay damages to the cross claimant in an amount to be determined in accordance with order (5).
(3) The first cross defendant is ordered to pay interest to the cross claimant in an amount to be determined in accordance with order (5).
(4) The cross claim against the second cross defendant is dismissed.
(5) The parties are directed to confer about the amount of damages and interest that the cross defendant should be ordered to pay to the cross claimant in accordance with these reasons for judgment (in particular par 406), and if agreement is not reached, the parties will be required to submit further submissions to the court at a time to be determined.
(6) The parties are directed to confer about the orders for costs that should be made, and if agreement is not reached, the parties will be required to submit submissions to the court at a time to be determined.
(7) The exhibits and any documents produced to the court on subpoena may be returned forthwith in accordance with the rules immediately upon the making of final orders in these proceedings.Catchwords: EQUITY – trusts and trustees – plaintiff and defendant engaged to be married and purchased first property as joint tenants and joint mortgagors in 2005 – plaintiff paid deposit, stamp duty, conveyancing fees, all mortgage repayments and repaid mortgage debt – parties’ relationship ended – plaintiff claims defendant orally agreed to hold her interest in the property on trust for him – whether an express trust arose – no oral agreement as alleged – express trust not established – whether resulting trust arose in favour of plaintiff –whether presumption of advancement because first property purchased in contemplation of marriage – first property not purchased in contemplation of marriage – defendant did not rebut presumption of resulting trust – defendant held her joint interest in first property on trust for plaintiff
EQUITY – trusts and trustees – plaintiff and defendant engaged to be married and plaintiff purchased second property in 2007 in sole name of defendant – purchase price paid by plaintiff – parties’ relationship ended – plaintiff claims defendant orally agreed to hold her interest in the property on trust for him – whether an express trust arose – no oral agreement as alleged – express trust not established – defendant claims that property was a gift – whether resulting trust arose in favour of plaintiff – whether presumption of advancement because second property purchased in contemplation of marriage – second property not purchased in contemplation of marriage – defendant bears onus of proving plaintiff’s intention at the time of purchase that she would hold beneficial ownership of…
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- AGLC
- Sharkey v Nissi [2015] NSWSC 1266
- Case
- [2015] NSWSC 1266
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether an express trust arose in relation to the beneficial interests in the properties. The court found that there was no evidence to support Sharkey's claim of an oral agreement creating an express trust. Regarding the first property, the court found that a resulting trust arose in favour of Sharkey, as the property was not purchased in contemplation of marriage, and Nissi did not rebut the presumption of a resulting trust. In relation to the second property, the court found that Nissi successfully rebutted the presumption of a resulting trust in favour of Sharkey. The court held that Nissi bore the onus of proving that Sharkey intended to hold beneficial ownership of the second property at the time of purchase, and Nissi had discharged this burden.
The court also considered whether the defendant breached any trust or acted unconscionably when the parties entered into a 2011 agreement, whereby Sharkey relinquished all claims against the second property, repaid all debts associated with it, and the defendant transferred her joint interest in the first property to Sharkey. The court held that the defendant did not act in breach of trust or unconscionably when entering into the 2011 agreement. The court found that the agreement was a compromise of the parties' rights under the Property (Relationships) Act 1984 (NSW) and was supported by consideration. The court held that the agreement was enforceable, and Sharkey was obliged not to challenge Nissi's beneficial ownership of the second property and to repay the mortgage on that property. The court did not make any orders regarding the redistribution of property rights between the parties under the Property (Relationships) Act 1984 (NSW).
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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