Touma v Touma - [2019] NSWSC 1670

Supreme Court

New South Wales

Medium Neutral Citation: Touma v Touma [2019] NSWSC 1670
Hearing dates: On the papers
Date of orders: 28 November 2019
Decision date: 28 November 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Order that each party pay its own costs of the proceedings.

Catchwords: COSTS – proceedings resolved without a determination on the merits – where plaintiff alleged the existence of an agreement made in 1995 whereby the defendant and plaintiff’s mother agreed to transfer a half share in a property to the plaintiff and his wife – where transfer form signed but not registered – plaintiff commenced proceedings seeking orders for the enforcement of the agreement – where proceedings settled and consent orders entered which required the defendant to facilitate a transfer to the plaintiff with the Summons otherwise dismissed – whether prior to commencement of the proceedings the defendant had unreasonably delayed effecting a transfer – where court not in a position to make findings about the terms of the 1995 agreement – neither party held to have acted unreasonably in the proceedings – orders made that each party pay its own costs
Legislation Cited: Conveyancing Act 1919 (NSW), ss 66F, 66G
Uniform Civil Procedure Rules 2005 (NSW), r 42.20
Cases Cited: Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274
Lewin v Lewin (2019) 19 BPR 39225; [2019] NSWSC 380
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Ralph Lauren 57 Pty Limited v Byron Shire Council [2014] NSWCA 107; (2014) 199 LGERA 424
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Watton v Whitton as Trustee in Bankruptcy Estate of Steven Leonard Watton [2017] NSWSC 1598
Category: Costs
Parties: Simon Touma (Plaintiff)
Dib Touma (Defendant)
Representation:
Counsel:
Mr J Jobson (Plaintiff)
Solicitors:
Andresakis & Associates (Plaintiff)
A R Walmsley & Co (Defendant)

File Number(s): 2019/22570
Publication restriction: Nil

Judgment

Introduction

These proceedings were commenced by Summons filed on 22 January 2019. The plaintiff and defendant are son and father respectively. The plaintiff alleged that in about 1995 the defendant and the plaintiff’s mother agreed to transfer a one-half share in a property in McGraths Hill to the plaintiff and his wife. The plaintiff’s mother died in 2003 but it seems that no action was taken to alter the title to the property accordingly.
In his Summons, the plaintiff sought a declaration that he was entitled to a one half-share of the McGraths Hill property and sought orders that the defendant execute a transfer reflecting the plaintiff’s one-half share. The plaintiff also sought orders for the appointment of trustees for sale of the property pursuant to s 66G of the Conveyancing Act 1919 (NSW). It is not clear why the plaintiff’s wife was not named as a party to the proceedings.
In any event, following a Court-annexed mediation in late July 2019, the parties reached a…

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 Touma v Touma

Details

AGLC: Touma v Touma [2019] NSWSC 1670
Case: [2019] NSWSC 1670
Decision Date: 28 November 2019

CaseChat Overview and Summary

In Touma v Touma, the plaintiff sought to enforce an alleged agreement from 1995 that involved the transfer of a half share in a property to himself and his wife. The dispute arose when the defendant, who was the other half-owner of the property, failed to register the transfer as per the agreement. The plaintiff filed proceedings to compel the defendant to transfer the property as agreed, but the case was settled before a determination was reached. Consent orders were entered, requiring the defendant to facilitate the transfer, and the summons was dismissed. The plaintiff applied for an order that the defendant had unreasonably delayed the transfer before the proceedings began, but the court found that it could not make findings about the terms of the 1995 agreement due to the settlement. Neither party was held to have acted unreasonably during the proceedings.

The court examined the nature of the dispute and the procedural history, noting that the case was resolved through settlement and consent orders. The legal issues before the court were whether the defendant had unreasonably delayed the transfer before the proceedings and whether either party acted unreasonably during the litigation. The court held that it could not make definitive findings about the 1995 agreement due to the settlement, and therefore, the court could not determine whether the defendant had unreasonably delayed the transfer. Additionally, the court found that neither party acted unreasonably during the proceedings, leading to an order that each party bear their own costs.

The court's reasoning was based on the inability to ascertain the terms of the 1995 agreement due to the settlement of the case. The court noted that it could not make findings on the merits of the alleged agreement, which meant it could not determine if there had been an unreasonable delay in effecting the transfer. Furthermore, the court found that neither party acted unreasonably during the proceedings, resulting in an order for each party to bear their own costs. The court concluded that it was not in a position to make findings about the substantive agreement or the conduct of the parties during the litigation. The final orders of the court reflected this reasoning by dismissing the summons and ordering that each party bear their own costs.

Orders