Sukkar v Sukkar - [2019] NSWSC 691

Supreme Court

New South Wales

Medium Neutral Citation: Sukkar v Sukkar [2019] NSWSC 691
Hearing dates: 15 – 17 April 2019
Date of orders: 11 June 2019
Decision date: 11 June 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Relief granted to first defendant pursuant to Contracts Review Act. Plaintiff’s claim for appointment of trustees for sale dismissed.

Catchwords:
LAND LAW – co-ownership – statutory trust for sale – claim by the plaintiff under Conveyancing Act 1919 (NSW) s 66G(1) – where plaintiff is an “incumbrancer” within the definition of “co-owner” in s 66F(1) as the registered proprietor of a mortgage over the interest of the first defendant – appointment of trustees refused in circumstances where the mortgage is required to be discharged pursuant to the first defendant’s cross-claim
CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – cross-claim by the first defendant to set aside contracts which include a deed of acknowledgement, loan agreement and mortgage – plaintiff and first defendant are son and mother respectively – plaintiff outlaid various amounts of money for the benefit of the first defendant over several years – where no binding agreement whereby first defendant obliged to repay monies to plaintiff – where the plaintiff sought to “confirm” legal relationship with the first defendant by entering into the contracts – contracts improvident from the first defendant’s perspective – where first defendant entered into the contracts as a result of undue emotional pressure applied by the plaintiff – contracts held to be unjust
Legislation Cited: Contracts Review Act 1980 (NSW), ss 7, 9, 19
Conveyancing Act 1919 (NSW), ss 66F, 66G
Evidence Act 1995 (NSW), s 128
Cases Cited: Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344
Australia & New Zealand Banking Group Ltd v Scott (1993) 6 BPR 97,446
Baltic Shipping Company v Dillon (1991) 22 NSWLR 1
Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482
Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36
Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49
West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Category: Principal judgment
Parties: Marc Sukkar (Plaintiff/Cross Defendant)
Rose Amanda Sukkar (First Defendant/Cross Claimant)
Hamid Sukkar (Second Defendant)
Representation:
Counsel:
Mr M W Young SC (Plaintiff/Cross Defendant)
Mr A J L Bannon SC with Mr M Jaireth (First Defendant/Cross Claimant)
Solicitors:
Coode & Corry Solicitors (Plaintiff/Cross Defendant)
Clayton Utz (First Defendant/Cross Claimant)

File Number(s): 2017/360003
Publication restriction: None

Judgment

Introduction

By a Summons filed on 28 November 2017 the plaintiff, Marc Sukkar, seeks an order pursuant to s 66G(1) of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of a residential property in Emu Plains. An application of that character must be brought by a “co-owner” of the property. The Emu Plains property is owned jointly by the defendants, Rose Sukkar and Hamid Sukkar. They are, respectively, the plaintiff’s mother and father. However, the plaintiff claims to…

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 Sukkar v Sukkar

Details

AGLC: Sukkar v Sukkar [2019] NSWSC 691
Case: [2019] NSWSC 691
Decision Date: 11 June 2019

CaseChat Overview and Summary

The case of Sukkar v Sukkar was heard in the Supreme Court of New South Wales. The plaintiff sought to enforce a statutory trust for sale of property, which was co-owned with the first defendant, his mother. The plaintiff claimed under section 66G(1) of the Conveyancing Act 1919 (NSW), arguing that he was an “incumbrancer” within the definition of “co-owner” in section 66F(1) as the registered proprietor of a mortgage over the first defendant’s interest. The first defendant, however, filed a cross-claim seeking to set aside the contracts that included a deed of acknowledgement, a loan agreement, and a mortgage. The first defendant argued that these contracts were unjust as they were entered into due to undue emotional pressure applied by the plaintiff and without any obligation to repay the money the plaintiff had spent on her behalf.

The court needed to determine whether the plaintiff was entitled to enforce the statutory trust for sale and if the first defendant’s cross-claim to set aside the contracts was successful. The court had to consider the nature of the relationship between the plaintiff and the first defendant, the circumstances under which the contracts were entered into, and whether the contracts were improvident or unjust. The court also needed to decide whether the plaintiff’s mortgage over the first defendant’s interest was to be discharged as part of the first defendant’s cross-claim.

The court found that the plaintiff was not entitled to enforce the statutory trust for sale because the mortgage was required to be discharged pursuant to the first defendant’s cross-claim. The court held that the contracts were unjust as they were entered into due to undue emotional pressure and without any obligation to repay the money. The court determined that the plaintiff sought to confirm his legal relationship with the first defendant by entering into the contracts, which were improvident from the first defendant’s perspective. Consequently, the first defendant’s cross-claim to set aside the contracts was successful. The court ordered that the mortgage be discharged and that the contracts be set aside.

Orders