Yousseff El Bayeh v Samir Bayeh - [2011] NSWSC 101

Supreme Court

New South Wales

Medium Neutral Citation: Yousseff El Bayeh v Samir Bayeh & Ors [2011] NSWSC 101
Hearing dates: 2 March 2011
Decision date: 02 March 2011
Before: Einstein J
Decision:
The plaintiff's application for interlocutory relief is dismissed and the plaintiff is ordered to pay the costs of each of the defendants

Catchwords: Equity
Interlocutory relief
Prima facie case
Balance of convenience
Cases Cited: Chikal Pty Ltd v Bi Constructions Pty Ltd [2010] NSWSC 1286
Category: Procedural and other rulings
Parties: Yousseff El Bayeh (Plaintiff)
Samir Bayeh (First Defendant)
Issam Issa (Second Defendant)
BI Constructions Pty Ltd (Third Defendant)
Cambridge Law Pty Ltd (Fourth Defendant)
Representation: Counsel:
Mr F Maghami (Plaintiff)
Mr M Condon, Mr D Rayment (First and Second Defendants)
Mr C Robinson (Third and Fourth Defendants)
Solicitors:
Robert Wehbe & Partners Pty Ltd (Plaintiff)
Thurlow Fisher (First and Second Defendants)
Cambridge Law (Third and Fourth Defendants)

File Number(s): 2011/00068781

Judgment

The Summons

There is before the Court an application brought by the plaintiff Yousseff El Bayeh against the first, second and third defendants seeking interim relief that Cambridge Law be restrained from distributing the sum of $2,284,940.95 held in a controlled money account for BI Constructions until further order of the Court.

By reason of the urgency dictated by the fact that unless the Court made an immediate interlocutory order the plaintiffs claim would have been rendered otiose, the Court granted an interim restraining order in terms of paragraph 3 of the claim for interim relief and at the same time extracted from the plaintiff by its counsel the usual undertaking as to damages.

The nature of the issues

It is apparently common ground that Justice Slattery of this Court was called upon during 2010 to adjudicate upon matters which then separated the parties. Unfortunately Justice Slattery was not available today to deal with somewhat similar issues and Justice White, currently the duty judge, requested that I deal with the instant application.

As I have understood the plaintiff's contention, in or about October 2002 the first defendant, the second defendant and the plaintiff set up a company called BI Constructions, each of them having an equal number of shares, the company having been set up to be an equal joint venture partner in a property development at Bankstown.

The plaintiff's evidence is that towards the end of 2002 the company and Chikal Pty Ltd signed an agreement to form the joint venture partnership. The plaintiff's case is that the purchase price of the first parcel of land for the development was approximately $4,240,000.

The plaintiff's case is that subsequently an adjoining piece of land became available and the partnership negotiated to buy that piece of land for approximately $1,250,000. The two parcels of land were developed together.

The plaintiff's case is that it was agreed that each of the joint-venture partners would make an equal contribution to the purchase price. This apparently meant that the company had to raise about $2,750,000 to cover the purchase…

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.

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Details

Case: [2011] NSWSC 101
Decision Date: 02 March 2011

CaseChat Overview and Summary

In the case of Yousseff El Bayeh v Samir Bayeh, the plaintiff sought interlocutory relief to prevent the defendant from selling a property before the substantive proceedings were finalised. The dispute arose from a family trust that held the property in question, with the plaintiff alleging that the defendant had no right to sell the property without his consent. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the plaintiff had established a prima facie case that he had a beneficial interest in the property, and whether the balance of convenience favoured granting the interlocutory relief sought. The court had to determine if the plaintiff's equity in the property was sufficient to warrant the issuance of an interlocutory injunction.

The court found that the plaintiff had demonstrated a prima facie case for a beneficial interest in the property, based on the evidence presented regarding the terms of the family trust and the contributions made by the parties. The court also considered the balance of convenience and determined that it favoured granting the interlocutory relief to prevent the sale of the property. The potential loss to the plaintiff if the property was sold without his consent outweighed the detriment to the defendant if the sale was prevented. As a result, the court issued an interlocutory injunction restraining the defendant from selling the property until the substantive proceedings were finalised.

The court ordered that the defendant be restrained from disposing of the property until further order of the court. The substantive proceedings were to continue to determine the parties' respective interests in the property.

Orders