Wakim v Wakim - [2018] NSWCA 61

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wakim v Wakim [2018] NSWCA 61
Hearing dates: 21 March 2018
Date of orders: 21 March 2018
Decision date: 21 March 2018
Before: Payne JA
Decision:
(1) Until the Court of Appeal delivers its judgment in the 2017/00372408 appeal or further order of the Court of Appeal, the respondent be restrained from doing any acts or taking any steps to evict the appellant from the premises at 28 Rosemont Street, Punchbowl, New South Wales.
(2) Costs of the motion to be costs in the cause.
Catchwords: CIVIL PROCEDURE – application for injunction – whether serious question to be tried – usual undertaking as to damages – balance of convenience – expedition – case management
Legislation Cited: Uniform Civil Procedure Rules (NSW)
Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Texts Cited: None
Category: Procedural and other rulings
Parties: Elias George Wakim (Applicant)
Karime Wakim (Respondent)
Representation:
Counsel:
D Hawkins (Applicant)
C Robinson (Respondent)
Solicitors:
Attia Lawyers (Applicant)
Cambridge Law (Respondent)

File Number(s): 2017/00372408
Publication restriction: None
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2017] NSWSC 1283

Date of Decision:

22 September 2017

Before:

Sackar J

File Number(s):

2015/229975

Judgment

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194] and published 27 March 2018]

PAYNE JA: This is an application for an injunction brought by Elias George Wakim. He has resided at 28 Rosemount Street Punchbowl (the Punchbowl property) for approximately 30 years. He is currently residing there rent free. He seeks an order preventing his mother Karime Wakim, the registered proprietor, from taking steps to have him evicted from the Punchbowl property.
On 22 September 2017, Sackar J delivered judgment in in Elias George Wakim v Karime Wakim [2017] NSWSC 1283 in favour of Karime Wakim. At [1]-[3] of the primary judgment, his Honour detailed the procedural history of the case as follows:

“[1] These proceedings arise from an alleged agreement between a son and his parents where he would receive the [Punchbowl property] after they died, in return for him providing his parents care until that date, and consideration of $200,000.
[2] The Plaintiff claims he loyally performed such an agreement, and makes claims in contract and estoppel. As a result the Plaintiff seeks an order for specific performance of the agreement and other consequential relief including a declaration the Defendant holds her registered interest in the property on constructive trust for the Plaintiff. In the alternative, the Plaintiff seeks financial adjustment under the Property (Relationships) Act 1984.
[3] The Defendant denies the agreement and performance of the agreement, and further denies the Plaintiff’s entitlement to any of the relief sought.”

The primary judge reached the following conclusion at [445] of the primary judgment:

“[445]…I am satisfied the Plaintiff’s claim…

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 Wakim v Wakim

Details

AGLC: Wakim v Wakim [2018] NSWCA 61
Case: [2018] NSWCA 61
Decision Date: 21 March 2018

CaseChat Overview and Summary

The appeal concerned an application for an injunction brought by the appellant, Mr. Wakim, against the respondent, Ms. Wakim. The dispute centred on the appellant's continued occupation of premises located at 28 Rosemont Street, Punchbowl, New South Wales, from which the respondent sought to evict him. The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the appellant had established a sufficient case for the grant of an interlocutory injunction to restrain the respondent from evicting him from the premises. This involved considering whether there was a serious question to be tried, the usual undertaking as to damages, and the balance of convenience, all within the context of case management and the need for expedition.

The Court of Appeal, applying established principles for the grant of interlocutory injunctions, considered the likelihood of the appellant succeeding in the substantive proceedings. The Court's reasoning, though not fully detailed in the provided text, led to the conclusion that an injunction was warranted pending the determination of a related appeal. The Court balanced the potential prejudice to each party and the need to preserve the status quo.

The Court of Appeal ordered that, until its judgment in a specified related appeal or further order, the respondent be restrained from taking any steps to evict the appellant from the premises. The costs of the motion were reserved to be costs in the cause.

Orders

Orders of the court

(1) Until the Court of Appeal delivers its judgment in the 2017/00372408 appeal or further order of the Court of Appeal, the respondent be restrained from doing any acts or taking any steps to evict the appellant from the premises at 28 Rosemont Street, Punchbowl, New South Wales.

(2) Costs of the motion to be costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wakim v Wakim [2018] NSWCA 61
Hearing dates:	21 March 2018
Date of orders:	21 March 2018
Decision date:	21 March 2018
Before:	Payne JA
Decision:	(1) Until the Court of Appeal delivers its judgment in the 2017/00372408 appeal or further order of the Court of Appeal, the respondent be restrained from doing any acts or taking any steps to evict the appellant from the premises at 28 Rosemont Street, Punchbowl, New South Wales. (2) Costs of the motion to be costs in the cause.
Catchwords:	CIVIL PROCEDURE – application for injunction – whether serious question to be tried – usual undertaking as to damages – balance of convenience – expedition – case management
Legislation Cited:	Uniform Civil Procedure Rules (NSW)
Cases Cited:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Texts Cited:	None
Category:	Procedural and other rulings
Parties:	Elias George Wakim (Applicant) Karime Wakim (Respondent)
Representation:	Counsel: D Hawkins (Applicant) C Robinson (Respondent) Solicitors: Attia Lawyers (Applicant) Cambridge Law (Respondent)
File Number(s):	2017/00372408
Publication restriction:	None
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Civil Citation: [2017] NSWSC 1283 Date of Decision: 22 September 2017 Before: Sackar J File Number(s): 2015/229975