Abdi v Abdi

Catchwords

[1987] HCA 59 Black Uhlans Inc v New South Wales Crime Commission and Others (2002) 12 BPR 22,421[2002] NSWSC 1060 Bloch v Bloch (1981) 180 CLR 390[1981] HCA 56 Brown v Brown (1993) 31 NSWLR 582 Buffrey v Buffrey (2006) 12 BPR 23,619[2006] NSWSC 1349 Calverley v Green (1984) 155 CLR 242[1984] HCA 81 Carl Zeiss Stiftung v Herbert Smith & Co (No 2) [1969] 2 Ch 276[1969] 2 All ER 367 Currie v Hamilton [1984] 1 NSWLR 687 Damberg v Damberg (2001) 52 NSWLR 492[1970] UKHL 3 Grant v Edwards [1986] Ch 638[1986] 2 All ER 426 Great Investments Ltd and Others v Warner and Others (2016) 243 FCR 516[2016] FCAFC 85 Green v Green (1989) 17 NSWLR 343 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6200 FCR 296 Hamed v Elddin [2016] NSWCA 9 Hansen v Noble (2021) 20 BPR 41,181[2021] NSWSC 138 Holt v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 Maharaj v Chand [1986] AC 898[1986] 3 All ER 107 Martech Energy Systems Pty Ltd (in liq) v Bell [2005] VSC 198 Martin v Martin (1959) 110 CLR 297[1959] HCA 62 Murtagh v Murtagh [2013] NSWSC 926 Muschinski v Dodds (1985) 160 CLR 583

Judgment (37 paragraphs)

[1]

missioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 Maharaj v Chand [1986] AC 898; [1986] 3 All ER 107 Martech Energy Systems Pty Ltd (in liq) v Bell [2005] VSC 198 Martin v Martin (1959) 110 CLR 297; [1959] HCA 62 Murtagh v Murtagh [2013] NSWSC 926 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Napier v Public Trustee (WA) (1980) 32 ALR 153 Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 Ong v Lottwo Pty Ltd (in Liq) (2013) 116 SASR 280; [2013] SASCFC 57 P9/2000 [2011] NSWSC 49 Pettitt v Pettitt [1970] AC 777; [1970] UKHL 5 Re Kerrigan; Ex parte Jones (1946) 47 SR (NSW) 76 Re L [2000] NSWSC 721 Re M (1988) 2 VAR 213 Re R [2000] NSWSC 886 Ryan v Dries (2002) 10 BPR 19,497; [2002] NSWCA 3 Ryan v Ryan [2012] NSWSC 636 Shepherd v Doolan [2005] NSWSC 42 Sze Tu & Ors v Lowe & Ors (2014) 89 NSWLR 317; [2014] NSWCA 462 Weige v Cupton Pty Ltd (2012) 8 ASTLR 229; [2012] NSWCA 414 Texts Cited: D Ong Trusts Law in Australia (4th ed), Federation Press, 2012 Halsbury's Laws of Australia Heydon & MJ Leeming, Jacobs' Law of Trusts in Australia (Lexis Nexis, 8th ed, 2016) J Glister, "Is There a Presumption of Advancement?" (2011) 33 Sydney Law Review 39 Jacobs' Law of Trusts in Australia (8th ed, 2016) W Swadling, "Explaining Resulting Trusts" (2008) 124 Law Quarterly Review 72 Category: Principal judgment Parties: Hanife Abdi by her tutor, Nabil Abdi (Plaintiff) Mahmoud Abdi (First Defendant) Nazih Abdi (Second Defendant) Representation: Counsel: NCT Bilinsky (Plaintiff) H El-Husseini (First Defendant) BJ Skinner with C Swanson (Second Defendant)

[2]

Solicitors: Uther Webster & Evans (Plaintiff) Husseini Lawyers (First Defendant) Swanson & Symonds Lawyers (Second Defendant) File Number(s): 2020/00185676 Publication restriction: Nil

[3]

Judgment

HER HONOUR: This matter involves a dispute between members of the Abdi family mainly relating to part of the proceeds of sale of a property in Croydon (the Croydon property) that was formerly the Abdi family home. Without intending any disrespect, I refer to the family members by their first names.
The plaintiff (Hanife Abdi), who at the time of the hearing was 87, was diagnosed with dementia in early 2019 and is unable to manage her own affairs. Hanife has resided in an aged care facility in Auburn since about March 2019; as also now does her husband, the first defendant (Mahmoud Abdi), who moved to the same aged care facility in March 2020. Mahmoud was 91 years old at the time of the hearing.
Hanife and Mahmoud have four sons - the eldest (Nazih Abdi), who is 64, is the second defendant in the proceeding. The remaining sons, in descending order of age, are Nabil Abdi (who is 62), who represented Hanife in the proceeding as her tutor; Assaad Abdi (who is 60); and Ismail Abdi (who is 57).
Each of Mahmoud and the four sons gave evidence and was cross-examined in the proceeding; Mahmoud through an Arabic interpreter. Mahmoud speaks only limited English. Mahmoud has deposed that his reading and writing of Arabic is very basic and that he cannot read or write English (see his affidavit sworn 7 December 2020 at [2]).
Nazih and Nabil are Hanife's co-attorneys pursuant to an enduring General Power of Attorney executed by her on 15 March 2012 at the time that she executed her last Will (see below).
In this proceeding (in which Nabil sought leave pursuant to r 7.15 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to be appointed as Hanife's tutor), Nabil (on behalf of Hanife) seeks a declaration that Nazih holds his one-third legal and beneficial interest in the Croydon property (now, in effect, in the proceeds of sale of the Croydon property as it has been sold since the commencement of the proceeding) upon resulting trust for Hanife and Mahmoud or, alternatively, upon constructive trust for both parents, in either case as tenants in common in equal shares. A further issue that arose in the proceeding was whether Nazih's oppositional position in the litigation put him in a position of conflict vis-a-vis Hanife, such that he should not be responsible for the ongoing management of her affairs; or whether such an order should otherwise be made having regard to Nazih's stance relating to the substantial withdrawal of moneys held in a joint account in the names of Hanife and Mahmoud (which I explain in due course). Nabil seeks an order that he be appointed as the manager of Hanife's affairs.

[4]

From Lebanon to Australia

I have referred above to the Abdi family members. By way of further background, Mahmoud was born in Palestine. In about 1947, at the time of the Israeli-Palestine conflict, Mahmoud and his family moved to Lebanon where in due course Mahmoud met Hanife. Mahmoud and Hanife were married in Lebanon in 1953; and each of Mahmoud and Hanife's four sons was born in Lebanon. Mahmoud worked as a carpenter in Lebanon, not having any formal qualifications as such, and deposes that his earnings were enough to support his family but not to save much money (see his affidavit at [14]); and that Hanife did not work in Lebanon as she was looking after the family (see his affidavit at [15]).
Nazih's evidence is that, from 1973 to 1975, he attended Siblin College in Lebanon, with the assistance of a grant or bursary (of which he says he gave half of the money to his parents for their support). In February 1975, Nazih, who had completed study as an apprentice diesel mechanic in Lebanon, went to work in Abu Dhabi where he had a contract of employment until December 1976. Nazih's evidence is that he then went to Cyprus where he arranged for his family to come to Australia. Nazih says that he contributed money for that purpose (see his affidavit sworn 8 December 2020 at [5]-[6]). Mahmoud's evidence, similarly, is that Nazih would give him money from his earnings in Abu Dhabi and Mahmoud deposes that he (Mahmoud) saved some of that money, together with his own earnings as a carpenter, to meet the costs of the family's travel to Australia (see Mahmoud's affidavit at [17]).
The family emigrated to Australia from Lebanon in or about April 1977, approximately two years after the start of the Lebanese civil war. From the account in Mahmoud's affidavit, it would appear that the family emigrated with limited savings (see his affidavit at [19]). In that regard, Nabil deposes that on regular occasions over the years Mahmoud made reference to arriving in Australia with $5,000 Australian dollars (or about 20,000 or 25,000 Lebanese lira) (see Nabil's affidavit sworn 10 November 2020 at [8]).
When the Abdi family arrived in Australia, the family lived in an apartment above Mahmoud's brother (Ahmad)'s restaurant ("Khaimat Alsheikh" or "The Sheik's Tent") at Bondi Beach. Mahmoud's brother had arranged a six month rental for them in advance of their arrival in Australia, and Mahmoud deposes that Ahmad paid for about the first six months of rent (see his affidavit at [19]).

[5]

Purchase of the Croydon property

On or about 20 March 1980, the Croydon property was acquired in the names of Mahmoud, Hanife and Nazih as tenants in common in equal shares. The Croydon property was purchased for $75,000.
The defendants' evidence is that the purchase of the Croydon property was arranged, organised and managed by Nazih (who found the property, dealt with the selling agent, arranged for the solicitor to act on the sale, and arranged for the finance for the purchase). It is said that, other than inspecting the property prior to its purchase, Hanife was not involved in any of the purchase process; and Mahmoud's evidence is that he did not inspect the property before its purchase because he was too busy with work to be able to look at it (see at [26]; T 95.32-95.42). This is consistent with Nabil's evidence that at the time of the purchase of the Croydon property Nazih was the only member of the household with a drivers' licence and vehicle and that he drove Hanife and Nabil regularly to view properties but that Mahmoud did not accompany them on those views (see Nabil's affidavit at [12]). Mahmoud has deposed that he gave Nazih $3,000 towards the purchase of a car as Nazih was the only person at the time that had a drivers' licence and the family did not have a car (see Mahmoud's affidavit at [82]).
Mahmoud has deposed that during 1979 he had a falling out with Ahmad and he decided that he and his family should find somewhere else to live (see his affidavit at [24]). (In cross-examination, Mahmoud said that it was not a big falling out; in his affidavit he suggests that it related to a disparity in the increase of rent for the building and the amount Ahmad was charging him for rent - see his affidavit at [51]; T 115.33-115.47.) Mahmoud has also deposed to a conversation with Nazih about his wish to buy a house, from which Mahmoud says he understood that he and Nazih "would be partners in any house that was purchased together" (see Mahmoud's affidavit at [25]). (The concept of partnership does not seem to have been raised in any of the family discussions to which Nabil and his siblings depose - and it seems to me highly unlikely that Mahmoud was using the term in his evidence in any technical legal sense.)
As to the purchase price, Mahmoud's first affidavit evidence is that he had about $7,000 in savings (see his affidavit at [28]) and that he arranged to borrow approximately $7,500 from his brother Mohamad in Lebanon to contribute towards the purchase of the Croydon property (see his affidavit at [30]) and that he then had about $14,000-$15,000 in savings (including the loan from Mohamad) to contribute to the purchase price (see his affidavit at [31]). Later in that first affidavit (responding to Nabil's first affidavit), Mahmoud says that he had approximately $5,000 in savings when he came to Australia. In cross-examination Mahmoud said that he had $8,000 of personal savings (some of which was in cash and some of which was held in the bank) to contribute to the purchase of the Croydon property (T 95.44-96.11). There was, therefore, an element of flux in Mahmoud's recollection of precise amounts.

[6]

Nazih marries Sana

On 4 March 1983, Nazih married his wife, Sana; and in late 1983 the couple purchased a property at Ashbury for the sum of $72,000. Nazih pleads that the purchase price was financed by a mortgage from St George in the sum of $53,000, together with a loan from Sana's mother in the sum of $10,000 and savings of Nazih and Sana (see [7] of his defence).
It is alleged by the plaintiff (see [11] of the further amended statement of claim) that, at around the time of Nazih's marriage to his wife, Mahmoud expressed a concern about whether, in the event of Nazih and Sana divorcing, Sana would have a claim over part of the Croydon property (on account of Nazih being registered as a one third owner of the Croydon property). Nabil deposes to a conversation to this effect in his affidavit at [21]. Mahmoud in his defence admits to expressing a concern with Nabil that Sana may have a claim to part of the Croydon property in the event that Nazih and Sana separated (see at 7 of Mahmoud's defence) but says that he expressed the concern as Nazih owned one-third of the Croydon property (see Mahmoud's defence at 7). At [61] of his affidavit, Mahmoud acknowledges that he has said from time to time that he was concerned that if Nazih divorced his wife she may make a claim on the house but denied saying that "Nazih knows he does not own any part of the property" and denied saying that he, Hanife and Nazih had gone to a solicitor and signed some documents "to safeguard the family home".
It is further alleged (see [12] of the further amended statement of claim) that Mahmoud's concerns about any prospective claim being made on the Croydon property were subsequently assuaged at family gatherings, when Nazih orally affirmed and acquiesced to Mahmoud's belief (and, it is said, also that of Hanife, Nabil and Nabil's siblings) that the only owners of the Croydon property were Mahmoud and Hanife. Mahmoud denies this (see [8] of his defence). Nazih similarly denies any oral affirmation and acquiescence by himself (see Nazih's defence at [8]).

[7]

Nazih's Will

On 4 October 1988, Nazih (by then married and with children) made a Will in which, pursuant to cl 3, he devised "my interest" in the Croydon property to Mahmoud and Hanife in equal shares as joint tenants (and pursuant to cl 4, the balance of his real estate and all of his personal property to his wife, Sana). Nabil places some weight on this (particularly in circumstances where Nazih's evidence is that his contribution to the Croydon property was an investment and one towards which he had made a considerable financial contribution).
Mahmoud, in his affidavit at [62], recounts an occasion when he says Nabil arranged for Hanife, Nazih and Mahmoud to meet with a solicitor (after Nazih was married and had moved out but Nabil was still living at home at the time) and the solicitor had prepared a Will for Mahmoud. Mahmoud's evidence is that after the meeting with the solicitor, Nazih said words to the effect that "for your peace of mind, I left my share in the house to you and Mum" (see Mahmoud's affidavit at [62]).
That Will was subsequently revoked by a Will dated 21 December 2006 (Ex 1) in which there was no such provision in respect of the Croydon property; which Will was then revoked by a Will dated 15 April 2015 (Ex 2), again making no separate provision in respect of Nazih's interest in the Croydon property. There is no apparent explanation for the change which, on Nazih's evidence, must have removed something he had put in place for his parents' peace of mind.

[8]

Nabil marries Nada

In about 1989, Nabil married his wife, Nada.

[9]

Conversations in relation to title to Croydon property

Nabil deposes to conversations in late 2011 with Mahmoud in relation to Nazih's name being on the title, including (at [23] of Nabil's affidavit) that Mahmoud said he would hate his sons fighting about any inheritance in the future and wanted to protect against it but did not "want to spend unnecessary cost taking Nazih's name off title"; and to conversations to the effect that Mahmoud had calculated first that Nazih should receive $50,000 in addition to his equal share of the rest of the inheritance (to compensate him for having not been able to apply for the first home owners' grant when he bought his home at Ashbury) and then that $75,000 was a more appropriate amount for compensation" (see Nabil's affidavit at [25]). Mahmoud denies that he said the words attributed to him at [23] of Nabil's affidavit (see Mahmoud's affidavit at [63]) and denies that he said that Nazih did not own any part of the house. Mahmoud is adamant that Nazih "is a partner in the house" (see for example his affidavit at [58], [60] and [63]).
Pausing here, there is some corroboration of the evidence as to Mahmoud's wish to give $75,000 to Nazih as compensation for "putting [Nazih's] name on the paper work for the house" so that the loan for the Croydon property could be obtained - see the affidavit of Mahmoud's nephew, Ghanim Hammadeh, sworn 10 November 2020 in which Ghanim deposes to a number of occasions over the years in which Mahmoud had made reference in his presence to his wish for "Nazih to be compensated for his loss when he agreed to put his name on the paperwork for the Croydon house" (see Ghanim's affidavit at [9]) and a conversation in May 2012 when Hanife and Mahmoud visited him overseas (see Ghanim's affidavit at [10]). Mahmoud responds to this in his affidavit (deposing to the reason that he is not close to Ghanim, the son of his half-brother, and to the falling out he had with him) and Mahmoud denies that he had such a conversation (see Mahmoud's affidavit at [124]ff).
There is also some corroboration in an affidavit sworn 9 November 2020 by a family friend, Mohamad Kadadi, to the effect that, in 2017, Mahmoud had a conversation with Mohamad in which he recounted that he had a meeting with his sons in relation to what was to happen when he and Hanife died, and it was agreed that the estate would be split evenly between the four sons but that Nazih would get $100,000 in addition to his share for helping them when they purchased the property; and that he had used Nazih's name to get the loan from the bank (see Mohamad's affidavit at [5]); as well as a further conversation in February 2020 in which he says Mahmoud said that he was going to give a third of the house to Nazih (and that this would be Assaad and Ismail's share) and that it was his house and he would do with it what he wanted (see Mohamad's affidavit at [8]). Mahmoud responds to this affidavit, denying the relevant conversations and giving his own account of the discussion in February 2020 (see Mahmoud's affidavit at [144]).

[10]

Mahmoud and Hanife's 15 March 2012 Wills

On 15 March 2012, each of Mahmoud and Hanife made a Will. Under both Wills, Nazih and Nabil were appointed executors. Under Hanife's Will, the whole of her estate was left to her children in equal shares. Under Mahmoud's then Will, the whole of his estate was left to Hanife should she survive him by 30 days but otherwise was left to his children in equal shares. It is pleaded (and is self-evidently the case by reference to the text of those Wills) that, in making their Wills, neither Mahmoud nor Hanife made reference to Nazih owning one-third or any part of the Croydon property or sought to make any adjustment on account of any such interest (see at [18] of the further amended statement of claim).
At the same time as she made her 2012 Will, Hanife executed the Enduring Power of Attorney in favour of Nazih and Nabil to which I have referred above.

[11]

April 2012

Nabil deposes (at [26] of his affidavit) that his parents went overseas in April 2012 and that about a week before they left, at a Sunday lunch at Croydon, Mahmoud took the four sons into the backyard and said: Nazih does not own a third of the property but he should get $75,000.00 from the estate before it is distributed because he did lose out on not getting a first home buyer benefit by putting his name on the papers.
Nabil deposes that Nazih said in Arabic "yes whatever you want Haj" and that he, Nabil, said that there was no first home benefit then but if that was what Mahmoud wanted that was OK.
Mahmoud deposes that he does not recall any conversations with Nabil about the ownership of the Croydon property in 2011/2012 before he and Hanife went overseas; and denies the account given by Nabil of conversations (at [24]-[27] of Nabil's affidavit) although Mahmoud says that he did say to all his children before he and Hanife left for overseas that "if I die when I am overseas, Nazih is to then take seventy five thousand dollars ($75,000) from my share of the house" (see Mahmoud's affidavit at [64]). Mahmoud's evidence in his affidavit is consistently that, when he referred to Nazih obtaining more than his brothers, it was a reference to amounts out of Mahmoud's share of the property.

[12]

April 2017

Nabil deposes to another overseas trip by his parents in about April 2017, prior to which he said that there was again a conversation in the backyard of the Croydon property to the same effect as the earlier conversation (see Nabil's affidavit at [28]). Nabil deposes that, on his parents' return from overseas in or about June 2017, he had a conversation with Mahmoud in which he says they discussed problems that a relative had when property had been put into one of the sons' names and Mahmoud asked what could be done (to prevent such a problem with the Croydon property). Nabil says that he told his father he just needed to transfer the one-third in Nazih's name to Hanife and Mahmoud; and would need a stamp duty valuation and to pay stamp duty on the one-third share. Nabil says that, following this, Mahmoud gave him the certificate of title and asked him to arrange for the stamp duty report and the transfer "and we will fix the issue with the title" (see Nabil's affidavit at [30]).
Mahmoud accepts that there was a conversation at this time in the backyard but his version is that he said words to the effect "Your mother and I are going overseas, if (god forbids) we die, you sell the house and in addition to his share and due to his contribution to the family all his life, I want him to have one hundred thousand dollars $100,000 extra from my share" (see Mahmoud's affidavit at [65]). Mahmoud denies the words attributed to him by Nabil at [29] of Nabil's affidavit (see Mahmoud's affidavit at [66]). Mahmoud says that he gave the certificate of title of the Croydon property to Nabil for safe-keeping.

[13]

2017 valuation of Croydon property

In 2017, a valuation report was obtained in respect of the Croydon property. The valuation report dated 4 September 2017 (by Mr David Butler) contemplated its use for "transfer/stamp duty" purposes. Nabil contends that it was obtained in the context of Mahmoud raising the prospect of removing Nazih from the title of the Croydon property. Mahmoud's account is that Nabil constantly raised with him dissatisfaction that Nazih's name was on the title; that he felt pressured to do something and said to Nabil words to the effect "I want to buy Nazih's share"; and that Nabil told him that he needed to value the house and obtained a valuation (see Mahmoud's affidavit at [66]). However, in cross-examination, Mahmoud said that the valuation was commissioned because he was thinking of buying or selling Nazih's share in the property in order to buy a house in Lakemba (T 141.30-141.40).
Nabil has deposed that, after the valuation was commissioned and received and the approximate cost of the stamp duty could be determined, Mahmoud "became emotional" and said that Nabil should trust his eldest brother to do the right thing, questioning why stamp duty should be paid anyway (see Nabil's affidavit at [37]), following which Nabil says his father had a telephone conversation on speaker with Nazih and told him that "You understand that you do not own a third of this house and that you will get some extra money when it is sold. You will get $75,000.00 more than your brothers", to which he says Nazih agreed (see Nabil's affidavit at [38]). Mahmoud says that Nabil told him the stamp duty was $27,000 and Mahmoud says that he told Nabil he had changed his mind and did not want to buy Nazih's share (see Mahmoud's affidavit at [66]).
Insofar as Mahmoud gives evidence that the valuation was only for the purpose of identifying what would amount to the value of Nazih's share, so that he might potentially buy out Nazih's interest, Nabil says that such an explanation strains credulity.
Pausing here, Nabil was questioned in cross-examination as to the proposition that there would be no stamp duty payable if there was a transfer from a legal owner to the real beneficial owner and as to his awareness of the provisions of s 55 of the Duties Act 1997 (NSW) (see T 49). Nabil says he was unaware of this (and, as a non-lawyer, it is not apparent why he would be; although his wife Nada was at some stage the principal of a conveyancing firm and might have been able to enlighten him, but Nada too gave evidence that she was not aware of the relevant provision - see T 62.44).

[14]

Discussion as to "compensation" for Nazih

As adverted to above, Nabil says that, at the same time as there were discussions about changing the title to remove Nazih's name, Mahmoud expressed a wish that Nazih should receive an extra sum of $75,000. Nabil says that this was to "compensate" Nazih for agreeing initially to go on title, assisting his parents to obtain a loan, and to provide some measure of compensation for the loss of his ability to claim a first homeowners' grant. (It is fair to say that the question of any loss of an ability to claim a first homeowners' grant loomed large in the evidence.)
Mahmoud agrees that there were discussions between all the children about Nazih receiving an additional $75,000 (later proposed to be increased to $100,000) but says that this was to be from his (Mahmoud's) share of the Croydon property and Mahmoud denies that it was to compensate Nazih for anything. (Nabil says that this evidence is inherently implausible in the context of a valuation paid, and obtained, for stamp duty purposes and a father's repeated promise to his children never to seek to favour one over another - see below.)
It is submitted by Nabil that if Nazih had truly entered into the purchase of the property with his father as a "partner" (as Mahmoud and Nazih assert), then his contribution was already recognised in his valuable one-third share of the property; and that there was no reason to bestow further largesse upon Nazih unless Mahmoud viewed his own vow to his children as meaningless.
Nazih denies that there was any discussion about amounts of money or compensation for first home buyer benefits in either 2012 or 2017 (see his affidavit at [18]-[19]).

[15]

Admission of Hanife to nursing home

In early 2019, Hanife was hospitalised. Hanife was later moved to a nursing home. Nabil says that this necessitated the sale of the Croydon property and coincided with Mahmoud falling out with his other two sons, Assaad and Ismail. Certainly, it appears that there was tension within the family at the time of Hanife's hospitalisation (see Nabil's affidavit at [42]ff). At T 34.14, Nabil confirmed that there was a great deal of tension within the family after Hanife was admitted to hospital.
Nabil deposes to conversations in which Mahmoud expressed a desire to sell the house, pay the required nursing home bond and distribute the balance as he saw fit (see further amended statement of claim at [21]; T 39); and to give none of it to Assaad or Ismail. (This is consistent with the evidence of Mohamad Kadadi and with the tenor of Mahmoud's own evidence.) Nabil says that this paid no recognition to Hanife's interest in the one-third share registered in Nazih's name; and that, in his role as Hanife's attorney, refused to accede to this distribution. Nabil says he was then accused by Mahmoud of simply trying to increase his brothers' inheritances.
Nabil says Mahmoud then asserted that the whole property was his (evidence consistent with Mahmoud's own protestation in cross-examination) and he wanted to give one-third to Nazih (his name being on the tile anyway). Again, Nabil did not agree to any such distribution.

[16]

Conversations between Nazih and Nabil

Nabil has deposed to various conversations from February 2019 in relation to the Croydon property: a meeting with his brothers at a coffee shop on 24 February 2019 in which he says that Nazih denied that he considered he was entitled to one-third of Croydon but said "but I lost out on the $14,000 first home owners grant & the stamp duty exemption"; on 1 July 2019, when he says that Nazih said he used to contribute to the household and did have a share in the property; on 25 January 2020, to the effect that Nazih said he was entitled to a share of the Croydon property because he missed out on the first home owner grant of $14,000 and the stamp duty exemptions and if he had put the money in an investment he would have a second property now; and, on 2 February 2020, a telephone call in which he says that Nazih said that "I bought the house as a "partner" and I am entitled to get my share because it was an investment property for me".
Nabil also deposes to a conversation with Mahmoud when he says similar statements were made (see at [56]ff) and Mahmoud asserted that the whole house was his (Mahmoud's) and he wanted to give Nazih a third (see T 39.18-39.32).
Mahmoud says that, in the conversation in February 2020 with Nabil, Nazih and himself, he said words to the effect that Nazih was a partner in the house. Mahmoud denies that he said that he had changed his mind or that Nazih had lost his stamp duty exemption (see Mahmoud's affivadit at [80]). Mahmoud says that at one stage he did hold the Qur'an and say in relation to the Croydon property that "I act fair and do not favour one son to the other, I wished to put all my children's names on the house but I was told by the agent that the only names that should be on the house are the people on the loan" and that he "put my hand to assure this". Mahmoud denied saying words to the effect that he owned the house and could do whatever he wanted with it (see Mahmoud's affidavit at [80]).

[17]

Statutory declaration

In evidence (see Ex D) is a statutory declaration dated 29 January 2020, apparently made by Mahmoud at Ashfield police station. The declaration is typed in Arabic. The translation of this document was provided as follows: I, Mahmoud ABDI born on 15 March 1930 and residing at [Croydon] do hereby and admit that when we bought our current home in 1980, my wife Hanifeh Abdi AND SON Nazih as well as I partners with equal shares [sic]. I also declare and admit that my son Nazih had paid his total share at the beginning and he used to pay one hundred dollars /week until he got married and left the family home on 04 March 1983. We then agreed that he should stop paying. I do declare and admit that the rest of my children Nabil, Asaad and Ismail ADBI have not paid any money from the price of the house. I declare and admit on the above with sound mind. I admit that the amount paid by my son Nazih ABDI at the beginning was 12,500.00 dollars. [this last sentence being handwritten in Arabic]
Following the typed Arabic as noted above, there is some handwritten Arabic (translated in cross-examination as "I admit [or I acknowledge] that the amount paid by my son Nazih ABDI at the beginning was 12,500" - see at T 101) and Mahmoud's signature. The handwriting and signature is in a different pen from the witness' signature and witness' details. There is a second signature of Mahmoud appearing above the witness' signature in what appears to be the same pen as the first of his signatures. Further there is a handwritten line ruled through part of the space following the handwritten addition (and what appears to be a crease mark (unexplained) immediately below the first of the signature under the additional words and date.
Mahmoud denied that it was Nazih who wrote this ("Why would he write down, Nazir, this sentence if I'm telling you now he paid $12,500? There is no need for writing" - T 102), denied that it was his own handwriting and at one point suggested it could have been forged (see T 101). Nazih, however, admits that it was his handwriting (see below).

[18]

Mahmoud's Will dated 4 March 2020

Mahmoud has deposed that, on 4 March 2020, he had a Will prepared that left his property to his grandchildren. Mahmoud says that he told Nabil that he was going to leave his share of the house to all the grandchildren except Assaad's son (see Mahmoud's affidavit at [77]). Mahmoud says he made the Will as he was unhappy with his children arguing over "my house" and their inheritance "and questioning that Nazih was partner in the house".

[19]

Sale of Croydon property

On 20 August 2020, the Croydon property was sold for the price of $1,820,000.
By consent orders made on 14 August 2020, one-third of the net proceeds of sale of the Croydon property (reflecting Nazih's one-third legal interest as recorded on the title of the Croydon property) is now held in a controlled moneys account of Nazih's solicitors (Swanson & Symonds) pending further order of the Court. (By arrangement made between the parties, after judgment was reserved an amount representing Hanife's undisputed one-third interest as tenant in common in the proceeds of sale of the Croydon property was placed in a newly opened bank account opened by Hanife's co-attorneys in her sole name, this having previously been resisted by Nazih - see below.)

[20]

Withdrawals from joint account

Hanife's pension payments had been paid into a joint account with Mahmoud (as had his up until 28 May 2020). From the end of May 2020, only Hanife's pension was paid into that joint account. Substantial withdrawals were made from the joint account from 26 May 2020, depleting that account considerably. Mahmoud has given a generalised account of those withdrawals in his affidavit evidence (including that these were for Hanife's benefit and that he was saving for her burial arrangements). Mahmoud has also deposed to a concern that one of his sons (Ismail) had access to the accounts and Mahmoud has made accusations about previous moneys being withdrawn. For his part, Nazih was unconcerned as to the withdrawals from the account and deposed that he was aware that Mahmoud was in charge of the finances and that he "was and still is the head of the family" (see Nazih's affidavit at [36] and see T 176-177).
By letter dated 29 October 2020, Nabil's solicitors wrote to Nazih's solicitors referring to the significant withdrawals from the joint account; noting the obligation of the co-attorneys to safeguard and restore Hanife's income, and proposing that Hanife's pension be paid into a separate account. There was no positive response to that suggestion (until after the issue was ventilated during the hearing).

[21]

Evidence

As to the family members who gave evidence and were cross-examined (via audio visual link during the then pandemic conditions), I make the following observations. At the outset, I accept that there was some difficulty at times with the technology involved in a virtual courtroom hearing but on the whole I was able to form a sufficient impression of the witnesses in order to assess their evidence. I also note that Mahmoud gave evidence through an interpreter and there was an understandable difficulty in that he cannot read or write English. However, to my observation, Mahmoud was not inhibited in the giving of his evidence by that process; and I record my appreciation for the assistance proffered by the interpreter during the course of that evidence.

[22]

Mahmoud

As noted, Mahmoud gave evidence through an interpreter; nevertheless that does not to my mind wholly explain the inconsistencies between his affidavit evidence and his oral evidence. Those inconsistencies were in a number of respects (for example as to whether he went to the bank at the time of the initial loan - see T 97.24-97.25 and 98.18-98.27; or as to the Egyptian grocer - "I don't know whether I discussed with him alone, I don't know" - T 123.20; and as to whether he had sworn an oath on the Qur'an - T 134; see also at T 138.6-138.15 (cf his affidavit at [66]); and at T 144.3-144.23 (cf his affidavit at [72])). It seemed to me that Mahmoud had a tendency to say whatever came to mind at the relevant time. Mahmoud was firmly of the view that he was the head of the household and not amenable to challenge by his sons (as to the latter, see for example at T 134.10 when he said that it was not their business; and at T 147.1-147.8 when he agreed he was very angry and upset with Assaad who was very disrespectful to him. At T 148.18, Mahmoud agreed that he did not want anything to go to Assaad and his son; and said that it was not right for them - his sons - to question him about how he spent his money - T 149.1-149.3). Mahmoud also attributed jealousy on Assaaf's part towards Nazih (T 133.15).
Mahmoud had a tendency to give inconsistent answers (maybe, yes, no, don't know) in the one answer (see for example at T 126 "No no no well yes yes no maybe"; or "potentially, potentially, yes possible …"), again suggesting that he had a tendency to say whatever first came to mind rather than thinking carefully about the answer; and he displayed a propensity to answer questions with rhetorical questions of his own ("why would I?" - see T 102; T 103; T 141) but my impression was that this was his linguistic style, not an attempt to avoid answering questions. Indeed, it seemed to me that, in context, the answer could often be gleaned by the question put by Mahmoud in response. (For example, on various occasions the response to the effect "why would I" seemed to me implicitly to involve a denial to the proposition.)
Insofar as the letter to the bank suggesting that Hanife was employed (see T 112/113), which Mahmoud says was "just in case", Mahmoud clearly saw nothing wrong with a potential misrepresentation of Hanife's position (and then was drawn into suggesting that Hanife was working or would have worked at the time) (see T 113-116).

[23]

Nazih

Nazih had a tendency to overstate matters in his affidavit evidence (such as his contribution to the funds for the family moving to Australia and in relation to his evidence about a guarantee for Ismail; see at T 170; and was inconsistent about when he had heard of his father's concern as to the potential consequences of a divorce - see at T 165).
Nazih explained that the October 1988 Will was because he felt a moral obligation to his parents (T 168.8) but that does not explain why he changed his will in 2015. Nazih was at pains to complain about Nabil seeking to act as tutor in the proceeding (T 177.30-177.35).
Nazih's evidence was that he wrote the Arabic handwriting on the statutory declaration under his father's instructions but denies he added it at a later time (see T 179.24-180.12).
As to the communication of information in relation to the first home owners' benefits, Nazih denied any conversation as to amounts in relation to this issue (T 171-173) - Nazih says he always asserted he owned a third of the property (but not to his brothers) and said that "I don't have to explain to anybody else. They are not a party involved in this matter" (T 173.12-173.15). Nazih then said that sending Nabil a text with information about the first home owners' grant in 1983 was (T 174) just to show him it was available - Nazih's logic was that it was his brother was raising the issue (T 174). Nazih says that Nabil was saying that he (Nazih) had already been compensated (i.e., that the one-third interest was in some way compensation for a later inability to claim the grant) - as I understand it, in opposition to any further amount although Nazih's evidence was not clear on this. Nazih denies that he was suggesting that it was legitimate for him to receive extra money for his name on the title; or that it was his father's concern to justify giving him more money from the Will (T 175). Nazih nevertheless accepted that in early 2019 the subject of his having given up an entitlement to claim first home grant was raised ([22]) and that there was further discussion [25]). As to whether the discussion was with Nabil over the telephone (a reference to the conversation of which Nabil has given evidence) he said "maybe yes".
In response to a question as to whether he was aware of activity in relation to his mother's bank account over the previous year, Nazih said that it was "[n]ot necessary. It's not my business" (T 175.32). Nazih agreed that it was only his mother's pension that was now paid into that account from which his mother's needs were met; and then said cryptically that "I believe the amount still exists but in a different way. It's not - for a different reason. I don't get involved. All that I know, my dad, he does not spend the money. Whatever he take, whatever, he does not spend it outside unnecessarily" (see T 176.36-176.39). Nazih had no concerns about the significant withdrawals from the joint account of his parents (see T 176.43-177.2), saying that his mother's needs were met and that it was his father's account and he was free to do what he wanted. His response, at T 178.2, to why it was that he had not acceded to the proposal to put money into a separate account as suggested by Nabil's solicitors was that he did not want to get involved and tell his father he could not make the withdrawals.

[24]

Nabil

Nabil was a credible witness albeit that he does not have direct knowledge of various of the matters going to the history of the family dealings and I accept that he has a personal interest in the outcome of the proceeding. Nabil was genuine in his evidence as to his dealings with Mahmoud and Nazih and broadly I accept his account of events as being the more consistent with the chronology of events set out above.

[25]

Assaad

As to Assaad, a video producer and graphic designer, his affidavit sworn 10 November 2020 deposes to his close relationship with his immediate family (at [2] of his affidavit) and to the deterioration of his relationship with Mahmoud due to disagreements in relation to decisions concerning Hanife's medical care (which it is not necessary here to set out in any detail). Suffice it to note that Assaad deposes that, during Hanife's hospitalisation in February 2019, he had a heated argument with Mahmoud, in which Mahmoud told him not to come to the hospital anymore.
As to the ownership of the Croydon property, Assaad has deposed to various conversations with Mahmoud corroborating Nabil's evidence as to: Mahmoud having said that he wanted all the sons to be recorded as owners of the home but that the agent's advice had been to put only Nazih on the title since he was working at the time, so that the loan could be approved (see Assaad's affidavit at [19]); the concern that Nabil says Mahmoud expressed as to the potential claim on the property if Nazih and Sana were to divorce (see Assaad's affidavit at [20]); and that the house would go to all the sons equally (after Mahmoud and Hanife died) (see Assaad's affidavit at [21]). Assaad also deposed to occasions on which Mahmoud referred to Nazih deserving a further payment from the inheritance because he had put his name on the title which helped get the loan (see Assaad's affidavit at [24]); and see the conversation at [26] of his affidavit in which Assaad says that Mahmoud wanted everything on paper because he did not want to see his sons in conflict.
Assaad also deposed to a conversation in early 2012 before his parents' departure overseas (at [28] of his affidavit) between Mahmoud and the sons, in which he says Nazih said that he had no claim over the house and did not want anything extra (in response to the suggestion of payment of $75,000). Assaad also deposes to the conversation between the brothers and Mahmoud in April 2017 to similar effect (see [29] of his affidavit); and to the cafe meeting with his brothers on about 24 February 2019 (see [30] of his affidavit).
There was clearly a depth of feeling on Assaad's part as to his relationship with Mahmoud and I have no doubt that they clashed in terms of family issues over the years (and see his evidence at T 82) but I considered Assaad to be a genuine witness. Assaad did not attempt to shy away from the fact that there had been a falling out with Mahmoud over an incident in relation to Hanife's health.

[26]

Ismail

As to Ismail, a smash repairer, who swore an affidavit on 9 November 2020, in his affidavit he referred to regular statements by Mahmoud (and as recently as 2019) in which Mahmoud said he wanted everyone's name put on the title but the agent said only to put Nazih's name on the title and it would be easier for the bank to approve the loan (see his affidavit at [6]; see also at [8], [10]). Ismail also deposes to Nazih saying over that time words to the effect that he did not own any part of the house but that he (Nazih) did forgo his right to receive a first home owner's benefit by allowing Mahmoud to put his name on the deeds (see his affidavit at [7]). Ismail also corroborated the wish of his father to honour his wishes and make sure that Nazih "gets his compensation for missing out on the first home buyer grant" (at [14] of his affidavit) and deposed to the coffee shop chat in which he says Nazih referred to having lost out by having his name on the title deeds (at [19] of his affidavit).
Again, I considered Ismail to be a genuine witness albeit that he has less knowledge of the history of the family dealings in relation to the Croydon property than his brothers (for obvious reasons). Ismail did not shy away from the fact that he had no idea where the money for the Croydon property came from (T 69.43) but he was firm in his recollection of what Mahmoud had said.

[27]

Nada

Nabil's wife, Nada Alamali, a solicitor (at the time of her affidavit Registrar of the Children's Court and part time member of the New South Wales Civil and Administrative Tribunal), who at relevant times operated her own conveyancing firm, in which Nabil worked, gave evidence by affidavit sworn 10 November 2020. Nabil and Nada were married in 1989.
Relevantly, Nada corroborated the evidence by Nabil as to the conversation in which it is said that Mahmoud put to Nazih the proposition that he knew he did not own a third of the property and Nazih agreed (and there was reference to payment of the $75,000) (see her affidavit at [15]). Nada also corroborated the conversation in which Mahmoud said to Nabil that it was his (Mahmoud's house) and he would do what he liked with it (see her affidavit at [23]), sentiments similar to those expressed at a conversation on 15 February 2020 at a meeting in Nabil's house. Nada also gave evidence of overhearing the telephone conversation in Melbourne on 2 February 2020 between Nabil and Nazih, in which she says she heard Nabil say "you cannot claim Croydon as your investment if you are claiming you are entitled to first home owner benefits when you bought your house at Ashbury, so which is it?" (see her affidavit at [27]).
I considered Nada to be a credible witness. Nada was careful to consider the questions put to her and was clearly conscious of her obligations as a witness and as an officer of the Court. Nada did not overstate or embellish her evidence and I accept her as a truthful witness.

[28]

Sana

As with Nada, I accept Sana as a truthful witness. While not familiar with the Court process, Sana's evidence was credible and aspects of it had an undeniable ring of truth (such as her evidence in relation to her mother's gift to all her daughters on their weddings and her evidence as to the manner in which she saved moneys prior to her marriage). Her evidence was credible.

[29]

Plaintiff's submissions

The principal contention put by Nabil on behalf of Hanife is that Nazih did not make a financial contribution to the purchase of the Croydon property and therefore he held his one-third interest in the property upon a resulting trust for his parents (i.e., invoking the principles applicable to a purchase money resulting trust).
Pausing here, the consequence of such a conclusion (apart from resulting in an increased interest in the proceeds of sale on the part of both Mahmoud and Hanife, each then holding a beneficial interest of 50% plus half of Nazih's one-third share, i.e., an additional one-sixth interest in the property, is that, as between Nazih and his brothers, each of Nazih's brothers will in due course inherit an increased share of Hanife's estate (since it is accepted that Hanife no longer has testamentary capacity and her last Will left her estate equally between her four sons) and Nazih will have a correspondingly reduced share. Hence the complaint by the defendants in the course of the hearing that this is in essence an attempt by Nabil (before Hanife's death) to improve his position under Hanife's Will. For Nabil's part, however, concern was (quite legitimately in my view) raised as to the manner in which Nazih (Hanife's co-attorney) had seemingly not acted to protect her position in respect of funds held in a joint account with Mahmoud, which funds have largely been depleted by withdrawals by Mahmoud for unexplained expenditure.
As to the resulting trust claim, both Nazih and Mahmoud maintain that Nazih paid 50% of the purchase price of the Croydon property (and they say that Nazih made mortgage repayments on the bank loan until 1983).
The submission made by Nabil for Hanife in this regard is that it is more probable that Nazih did not in fact contribute any money to the acquisition of the Croydon property; and the evidence adduced in the plaintiff's case is that this was communicated to various family members by Mahmoud and that Nazih himself acknowledged that he did not have an interest in the property. As such, it is submitted that a presumption of a resulting trust arises.
Reference is made to the statements of principle as to a resulting trust arising where purchase money is advanced by someone not recorded on the title by Eyre LCB in Dyer v Dyer (1788) 2 Cox Eq Cas 92 at 93 (Dyer v Dyer) and by Aickin J in Napier v Public Trustee (WA) (1980) 32 ALR 153 at 158.

[30]

Mahmoud's submissions

In Mahmoud's submissions, it is noted that Nabil originally sought to bring this proceeding in his own right but, by amended statement of claim filed on 23 July 2020, Nabil now brings the proceeding as the tutor for Hanife.
In his amended statement of claim, in addition to the orders in respect of the Croydon property, Nabil seeks an order to be appointed as the tutor for Hanife and makes a claim on her behalf, that he be appointed as the manager of Hanife's affairs. In his submissions, Mahmoud says that this application does not concern him.
Mahmoud says that what is relevant in relation to the claim as to the Croydon property is what agreement and contributions were made at the time of purchase. Mahmoud says that he agreed to purchase the Croydon property with Nazih; that Nazih arranged, organised and managed the purchase of the Croydon property; that Nazih contributed half the costs paid by the parties upfront and was a joint borrower; and that Nazih paid Mahmoud for the St George Home Loan until he married and purchased his own property.
Mahmoud submits that the facts and circumstances of the purchase of the Croydon property, and further financial contributions, establish a joint venture between Mahmoud and Nazih (which it is said, having regard to the financial contributions, would leave them as joint owners and with Mahmoud arguably having a claim to a greater share of the Croydon property due to the additional financial contributions made to the St George Home Loan after late 1983) but that he and Nazih do not seek to unsettle the agreement that the purchase was made and the legal ownership recorded on title so that Mahmoud, Nazih and Hanife were joint owners in equal shares (one third each).
It is said that there is no suggestion, on the pleadings nor in the affidavit evidence filed on behalf of the plaintiff, that prior to the onset of her dementia Hanife made any claim (as asserted by Nabil) that Nazih held his legal and beneficial interest in the Croydon property on trust for her and Mahmoud. It is further said that there is no evidence that Hanife made any direct financial contributions to the purchase of the Croydon property, the payment of the St George Home Loan for the Croydon property, and or the maintenance of the Croydon property. Pausing here, for the purposes of the resulting trust principles, incurring liability as a borrower in respect of a portion of the purchase price would be sufficient. Moreover, payments made from the couple's joint savings would arguably be payments made jointly by both - not payments attributable to Mahmoud alone (consistently with the argument made in the present proceeding to the effect that withdrawals from the joint bank account by Mahmoud (from moneys paid into the account as Hanife's pension) were not improperly made).

[31]

Nazih's submissions

As does Mahmoud, Nazih points to the fact that no evidence has been adduced in regard to any evidentiary support by Hanife for the relief sought on her behalf; and no statements have been adduced which reflect in any way her attitude towards the ownership of the property. On that basis alone, Nazih submits that the relief sought should be denied.
Nazih says that the plaintiff's entire case resolves around assertions that he and Mahmoud have agreed or made statements from time to time subsequent to the purchase to the effect that the entire property is held for the benefit of Mahmoud and Hanife (with the underlying proposition being that all siblings should benefit equally from the ownership of the property). Nazih contends that this proposition is based upon cultural considerations and not upon proper factual analysis. It is said that none of the statements attributed to Nazih and Mahmoud (see below) give rise to a prima facie argument that Nazih is conscience bound to give up his legal interest in favour of Hanife and Mahmoud when neither of his co-owners support the proposition.
Nazih asserts (somewhat sweepingly) that the evidence as to his financial contributions has "not been rebutted and would appear matters of incontrovertible truth". It is submitted that there is no evidence of an intention on the part of Nazih to gift his financial contributions towards the purchase of the property for the benefit of his parents. Nazih argues that he is in summary a purchaser for value without notice. Pausing here, the defence of bona fide purchase logically applies in cases where the purchase is of an applicant's rights from a third party; a defendant cannot assert a right to retain a benefit based on the very transaction which requires the benefit to be given back (see Great Investments Ltd and Others v Warner (2016) 243 FCR 516; [2016] FCAFC 85 at [106] per Jagot, Edelman and Moshinsky JJ).
Nazih says that a resulting trust would only be presumed if Mahmoud and Hanife purchased a one-third interest in the name of Nazih in circumstances where he provided no consideration towards the purchase price. It is submitted that there is no evidence that Hanife participated in conduct whereby it could be implied that Nazih held his interest for the benefit of his parents. Nazih maintains that such a proposition has been rebutted by the evidence of payments made by Nazih, supported by the evidence of Mahmoud.

[32]

Determination

As explained in Amit Laundry v Jain [2017] NSWSC 1495 at [162], the presumption of resulting trust involves a "legal presumption" (see Jacobs' Law of Trusts in Australia (8th ed, 2016) at [12-10] (Jacobs' Law of Trusts); W Swadling, "Explaining Resulting Trusts" (2008) 124 Law Quarterly Review 72), namely the presumption of a declaration of trust; Edelman J sitting in the Supreme Court of Western Australia, as his Honour then was, in Anderson v McPherson (No 2) [2012] WASC 19 (Anderson v McPherson (No 2)), referring to the rebuttable presumption as being "of the fact of a manifest declaration" (at [106]; see also, Jacobs' Law of Trusts (at [12-10])). The presumption as to a declaration of trust is premised on a presumed intention to create an equitable (beneficial) interest in the acquired property in someone other than, or in addition to, the person in whom legal title is vested.
The relevant presumption (as formulated at 266-267 in Calverley by Deane J is in the following terms (see also Gibbs CJ at 246-247 and Mason and Brennan JJ at 258)) is that: … where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it.
On the case advanced by both Mahmoud and Nazih, their contribution to the purchase price for the Croydon property was equal - the provision by each of half the deposit and them together obtaining the mortgage in relation to the balance of the loan. That ignores altogether the contribution made by Hanife as joint borrower of the funds obtained from St George (which would effectively dilute the proportionate contributions of each of Mahmoud and Nazih - and counts against the suggestion raised in submissions that the presumption of resulting trust would arise in Nazih's favour albeit that he was not asserting it). On the case advanced, on behalf of Hanife, by Nabil, on the other hand the purchase price was funded essentially by Mahmoud (although I note that in that scenario account must still be taken in that scenario of Hanife's contribution to the borrowings from St George). Nor do the parties appear to contemplate that moneys provided directly by Mahmoud are likely to have come from joint savings with Hanife (even though she was not working).

[33]

Constructive trust

In light of the above finding, the alternative claim for constructive relief is largely otiose. However, lest the conclusion above be in error, I briefly address the alternative claim. The basis on which this alternative relief was sought was not made clear in the pleading. In submissions, the claim was treated as arising out of the same factual circumstances as the resulting trust claim such that, to the extent that it could be established that Nazih did not make a financial contribution to the acquisition of the Croydon property, it would be unconscionable for him to retain an interest in relation to the property.
In this regard, it is relevant to note the predominantly remedial origins and character of constructive trusts (see the discussion in E Co [a pseudonym] v Q [a pseudonym] No 4 [2019] NSWSC 429 at [621]-[624], noting, inter alia, the commentary in Halsbury's Laws of Australia, volume 430 at [570] (citing Muschinski v Dodds at 613; 616-617; and Carl Zeiss Stiftung v Herbert Smith & Co (No 2) [1969] 2 Ch 276 at 300; [1969] 2 All ER 367) as to the boundaries of the constructive trust extending to "any case where some principle of the law of equity calls for the imposition upon the legal owner of property of the obligation to hold or apply the property for the benefit of another"). See also Jacobs' Law of Trusts in Australia (J D Heydon & MJ Leeming, Jacobs' Law of Trusts in Australia (Lexis Nexis, 8th ed, 2016) at [13-10]-[13-11]).
In Sze Tu & Ors v Lowe & Ors (2014) 89 NSWLR 317; [2014] NSWCA 462 (Sze Tu) (at [149]-[152]) Gleeson JA (with whom Meagher and Barrett JJA agreed), considered the distinction the remedial and institutional objectives of constructive trusts, that distinction largely being of relevance when considering the time at which a constructive trust may be held to have arisen or to take effect. So, for example, in Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 (Chameleon), the Full Federal Court (Finn, Stone and Perram JJ) at [504]-[505] distinguished the remedial use of the constructive trust from those cases where, on proof of particular facts in a given context, the circumstances are construed as giving rise to a constructive trust.
In the present case, the remedy of constructive trust appears to be invoked on the basis that it would be an appropriate remedy in circumstances where it is alleged that Nazih did not contribute to the payment of the deposit and was not intended to hold a beneficial interest in the Croydon property. It is not clear how that extends the matter beyond the claim based on a resulting trust (in the sense that, if the unequal contribution were to be established, then a presumption or resulting trust would arise and if not rebutted would lead to the relief sought on behalf of Hanife; but that if the unequal contribution were not to be established then the predicate for the submission as to the constructive trust would not be made good). It is not, for example, a case of a delinquent fiduciary or a third party participant in fiduciary or trust wrongdoing; nor one "where the property or interest sought to be recovered (or its traceable proceeds) is, or had been, the property of the claimant" (two of the circumstances referred to in Chameleon at [256]).

[34]

Claim for appointment of manager

Finally, as to the claim for appointment of Nabil as manager for the financial affairs of Hanife, I note that the paramount consideration when exercising the discretionary power in s 41(1)(b) of the NSW Trustee and Guardian Act 2009 (NSW) (NSW Trustee and Guardian Act) is the welfare and interests of the person the subject of the order.
Section 41(1) of the NSW Trustee and Guardian Act provides as follows: 41 Orders by Supreme Court for management of affairs (1) If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may - (a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and (b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee.
Section 39 sets out the principles applicable to Chapter 4 (which provides for management functions relating to persons incapable of managing their affairs): 39 General principles applicable to Chapter It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles - (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation.
In Holt v Protective Commissioner (1993) 31 NSWLR 227, Kirby P (as his Honour then was) opined that the dominant consideration in making an order appointing a financial manager (in that case under the Protected Estates Act 1983 (NSW), which is in materially identical terms) is the welfare of the person under an incapacity (at 238). His Honour went on to say (at 238-239) that the appointment of a "suitable person": … is not solely for the investment of funds, their proper management and disbursement, the keeping of audited accounts and other financial responsibilities. What is involved goes beyond this. In the case of a protected person it includes ensuring that the person has a quality of life which is as beneficial to the person as the resources available to the manager permits. … … In many estates of modest size it will be appropriate where there is no risk of conflict of interest and duty, and where a relationship of love or affection is established, to reflect in the statutory appointment the form of management which for millennia, in primitive societies as in civilised communities, has been followed when a family member is found to be incapable of managing his or her affairs. It is normal then for the family to step in. …

[35]

Costs

I see no reason for costs not to follow the event as between Nazih and the plaintiff. (In submissions it was indicated for Nazih that if the claim was dismissed an order would be sought for the tutor (Nabil) to pay the costs personally but the predicate for that order was not met.) If the parties seek any further or other costs orders, then I will give the parties an opportunity to file brief written submissions with a view to dealing with it on the papers.

[36]

Orders

For the above reasons I make the following orders: 1. Order pursuant to r 7.15 of the Uniform Civil Procedure Rules 2005 (NSW) that Nabil Abdi be appointed with effect from the filing of the amended statement of claim as the tutor for the plaintiff (Hanife Abdi) for the purposes of the proceeding. 2. Declare that the second defendant (Nazih Abdi) holds his one-third interest in the proceeds of sale of the property referred to in these reasons as the Croydon property upon a resulting trust for the first defendant (Mahmoud Abdi) and the plaintiff (Hanife Abdi) as tenants in common in equal shares. 3. Order that the funds presently held in the second defendant's solicitors' controlled moneys account representing the one-third share of the proceeds of sale of the Croydon property referable to the interest held by Nazih Abdi be disbursed as to one-half to the plaintiff (Hanife Abid) and as to one-half to the first defendant (Mahmoud Abdi) in accordance with directions to that effect to be provided by the solicitors for the plaintiff and the first defendant, respectively. 4. Order the second defendant to pay the plaintiff's costs of the proceeding.

[37]

Amendments 14 April 2022 - Amendment to order 3, paragraphs 19, 59 and 174 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2022

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (37 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (54)

Cited By (1)