| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S CI 2018 01821
| NAGI ZEKRY | Plaintiff |
| v | |
| MARGRITTE ZEKRY | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4, 5 and 6 February 2020 |
DATE OF JUDGMENT: | 29 April 2020 |
CASE MAY BE CITED AS: | Zekry v Zekry |
MEDIUM NEUTRAL CITATION: | [2020] VSC 221 |
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EQUITY & TRUSTS — Common intention constructive trust — Joint endeavour constructive trust — Financial and non-financial contributions allegedly made by plaintiff towards property — Legal title to property held by defendant — Whether defendant’s interest in property held on constructive trust for the plaintiff — Whether parties expressed a common intention to hold properties for the benefit of the plaintiff — Whether common intention implied from parties’ actions — Whether parties entered into a joint endeavour concerning properties — Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137; Sivritas v Sivritas [2008] VSC 374; Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460; McDonald v Dunscombe [2018] VSC 283; Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Amani Amani Lawyers | |
| For the Defendant | Ms E Konstantinou | Fleming & Rhoden |
HER HONOUR:
Introduction
Nagi Zekry (‘the plaintiff’) is the adult son of Margritte Zekry (‘the defendant’) and her late husband, Samir Zekry (‘Samir’). The defendant and Samir also have an adult daughter, Nermin Zekry-Gabrielle (‘Nermin’).
The plaintiff claims that, from 2003 until the death of Samir in 2017, he made financial and non-financial contributions towards the purchase and maintenance of the following five properties:
(a) the family home at 8 Durang Court, Endeavour Hills (‘the Endeavour Hills property’), which was sold in 2009;
(b) 38 Robjant Street, Hampton Park (‘the Hampton Park property’), which was purchased in 2003;
(c) 20 Stud Road, Dandenong (‘the Stud Road property’), which was purchased in 2005 and sold in 2016;
(d) 1 Aratula Street, Dandenong (‘the Aratula Street property’), which was purchased in 2011 and sold in 2017; and
(e) 36 Santa Cruz Boulevard, Roxburgh Park (‘the Roxburgh Park property’), which was purchased in 2017.
The plaintiff alleges that he, Samir and the defendant reached various agreements with regard to the beneficial ownership of the five properties. The final agreement reached before Samir’s death was said to be a 2017 agreement that Samir and the defendant would reside in, and beneficially own, the Roxburgh Park property and the plaintiff would reside in, and beneficially own, the Hampton Park property.
At the time of trial the defendant was the registered proprietor of the Hampton Park and Roxburgh Park properties. The Hampton Park property is subject to a contract of sale, but due to the plaintiff’s caveat on the title, settlement has not yet taken place. Pending the outcome of this proceeding, the defendant and the purchaser have entered into a license…
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- AGLC
- Zekry v Zekry [2020] VSC 221
- Case
- [2020] VSC 221
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the defendant held his interest in the property on a constructive trust for the plaintiff, and whether there was an implied common intention to hold the property jointly. The court had to determine if there were any common intentions expressed or implied by the parties that gave rise to the constructive trust, and if there was a joint endeavour concerning the property. The court considered the relevant authorities, including Muschinski v Dodds, Baumgartner v Baumgartner, Sivritas v Sivritas, Australian Building & Technical Solutions Pty Ltd v Boumelhem, McDonald v Dunscombe, and Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc.
The court found that there was no common intention expressed or implied by the parties that gave rise to a constructive trust in favour of the plaintiff. The court held that the plaintiff had failed to establish that there was a joint endeavour concerning the property. The court found that the plaintiff had made some financial contributions towards the purchase of the property, but these contributions were not sufficient to establish a common intention or joint endeavour. The court also found that the plaintiff’s non-financial contributions, such as homemaking and childcare, did not entitle her to a share of the property. The court held that the defendant was entitled to retain the legal title to the property.
The court made no orders in favour of the plaintiff and dismissed her claim. The court held that the defendant’s interest in the property was not held on a constructive trust for the plaintiff. The court found that the plaintiff had failed to establish the necessary legal principles to succeed in her claim. The court held that the plaintiff was not entitled to a share of the property, and that the defendant was entitled to retain the legal title to the property.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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