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Sharkey v Nissi

Sharkey v Nissi

Case [2015] NSWSC 1266 2 September 2015

Resulting Trust

Express Trust

Unconscionable Conduct

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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…

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 Sharkey v Nissi

Details

AGLC: Sharkey v Nissi [2015] NSWSC 1266
Case: [2015] NSWSC 1266
Decision Date: 02 September 2015

CaseChat Overview and Summary

The case of Sharkey v Nissi concerns a dispute between two former de facto partners over the beneficial interests in two properties they acquired during their relationship. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Sharkey, and the defendant, Nissi, had entered into a de facto relationship and purchased two properties during their relationship. The first property was purchased in 2005 as joint tenants and joint mortgagors, with Sharkey paying the deposit, stamp duty, conveyancing fees, and all mortgage repayments. The second property was purchased in 2007 in the defendant's sole name, with Sharkey paying the purchase price. The relationship subsequently ended, and Sharkey claimed that Nissi had agreed orally to hold her interest in both properties on trust for him.

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