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…

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 Zekry v Zekry

Details

AGLC: Zekry v Zekry [2020] VSC 221
Case: [2020] VSC 221
Decision Date: 29 April 2020

CaseChat Overview and Summary

The case of Zekry v Zekry involved the plaintiff, Ms Zekry, seeking a declaration that a constructive trust should be imposed over the defendant’s property, which was held in his sole name. The property was a house purchased in 2008, and the relationship between the parties ended in 2015. Ms Zekry argued that she had made both financial and non-financial contributions towards the purchase and maintenance of the property, and that these contributions entitled her to a share of the property. The defendant, Mr Zekry, denied any obligation to share the property.

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