Ibrahim v Ibrahim

Court's obligations to a litigant in person

1. As a preliminary matter, I note that I made known to the parties the Court's obligations when a self-represented party appears, namely that, while I would explain the process, procedure and what each party was required to do to satisfy the legal tests, the Court must maintain impartiality: see eg Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep), where Samuels JA stated: In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
2. A pre-trial directions hearing was held on 11 November 2022. At that hearing, Ms Ibrahim indicated that she was comfortable speaking and reading English without the aid of an interpreter, and that she understood that what was in dispute was only the Property and whether an order should be made that it be sold. She also informed the Court that she would represent herself at the final hearing with the assistance and support of her daughter, who also assisted her at the pre-trial directions hearing and in preparing her affidavit. I note that Ms Ibrahim did say in cross-examination that she had approached a "government lawyer" and another lawyer when she was served with the Summons, and that the government lawyer "told me to go to Court".
3. When the hearing commenced, the procedure of the hearing was explained to Ms Ibrahim, and she acknowledged that she understood. At no time did counsel for the plaintiff seek to amend or add to any direction or explanation provided by the Court to Ms Ibrahim.
4. Ms Ibrahim was assisted in Court by her brother, Mr Ali Khalil, with the consent of the plaintiff. Mr Khalil made some submissions on Ms Ibrahim's behalf and asked some questions in cross-examination of Mr Ibrahim, who gave evidence with the assistance of an interpreter. Two of the parties' daughters also supported her in Court. Ms Ibrahim also prepared three objections to Mr Ibrahim's evidence.
5. In the week before the hearing, the Court directed the plaintiff to provide Ms Ibrahim with copies of section 66G and the authorities upon which he relied. At the hearing, Ms Ibrahim acknowledged that she had received those documents. She had also been provided with a hard copy of the Court Book.
6. Ms Ibrahim indicated she understood that (as the party opposing the sale) she bore the onus of dissuading the Court from ordering a sale of the Property: see Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685 at 14,701 (Santow J).
7. While Mr Khalil submitted towards the end of the hearing that he did not consider that Ms Ibrahim understood the legal process on foot, the Court gave Ms Ibrahim opportunities to ask any questions throughout the hearing and Ms Ibrahim never indicated to the Court that she lacked any understanding. She was given time during the hearing to discuss matters with her daughters and Mr Khalil. At no point in time did Ms Ibrahim indicate to the Court that she did not understand or that she wanted any explanation.
8. At the hearing, Ms Ibrahim was asked by counsel for the plaintiff whether she had difficulties with understanding English. Her response was "No, I understand." When she expressed some difficulty understanding questions in cross-examination, I informed her that she could indicate that she did not understand and request counsel to ask the question in a different way.

Principles concerning s 66G

1. Section 66G(1) empowers the Court to appoint trustees for sale of real property where: 1. the property is "held in co-ownership"; and 2. one of the co-owners applies for the order.
2. "Co-ownership", as defined in s 66F, includes ownership in equity in possession by two or more persons as joint tenants. "Co-owner" is defined to have a corresponding meaning. It is clear that the parties are "co-owners" and, therefore, the s 66G orders ought to be made unless there is a reason against the Court exercising its discretion to do so.
3. The principles concerning the operation of s 66G are well known: see, for example, the summary by Black J in Pascoe v Dyason [2011] NSWSC 1217, at [5]-[8]: [5] The purpose of this section is "to provide a mechanism for terminating the co-ownership [of property] where the co-owners themselves cannot agree on how the co-ownership should be determined": P Butt, Land Law , 6 th ed, 2010 at 265. In Callahan v O'Neill [2002] NSWSC 877, Young CJ in Eq observed: "It is fairly clear that, as a general rule, any co-owner holding at least 50% of a parcel of real property is entitled almost as of right to an order for partition or sale under s 66G of the Conveyancing Act. It is only in situations where it would, under settled principles, be inequitable to permit such an application, including cases where there has been a contract not to make an application that the order may be refused. This appears from cases such as Ngatoa v Ford (1990) 19 NSWLR 72 and Williams v Legg (1993) 29 NSWLR 687." [6] Although the Court has a discretion whether or not to make an order under this section, the grounds on which the Court will ordinarily refuse to make it are limited. For example, if it is inconsistent with a proprietary right or a contractual or fiduciary obligation, and there is no general jurisdiction to refuse to grant such an order on the basis of hardship or unfairness: Stephens v Debney (1960) 60 SR (NSW) 468; Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068; Ngatoa & Anor v Ford & Anor (1990) 19 NSWLR 72; Williams v Legg (1993) 29 NSWLR 687; Westpac Banking Corporation v Sansom (1994) 6 BPR 13,790; Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685. In Hogan v Baseden (1997) 8 BPR 15,723 at 15,723, Mason P observed that it "would not be a proper exercise of discretion of the power to decline relief under s 66G ... to refuse an application on grounds of hardship or general unfairness." His Honour also noted that: "[I]n the unhappy event that the parties are unable to settle their differences then the making of an order appointing trustees for sale seems inevitable unless the respondent could establish a legally binding agreement not to put her out of occupation of her home, or circumstances that would ground some estoppel to similar effect." (at [59]). [7] In Chalhoub v Chalhoub [2005] NSWSC 572 at [17]-[18], McLaughlin AsJ observed that, where a plaintiff and defendant are registered as tenants in common in equal shares, then prima facie the plaintiff is entitled to relief by way of an order under s 66G of the Conveyancing Act for sale of the relevant property and for the division of the net proceeds of such sale between the plaintiff and the defendant in equal shares. It was for the defendant, who denied the plaintiff's entitlement to such relief, to establish that the legal rights of the parties consequent upon their status as registered proprietors as tenants in common in equal shares were in some way altered by the invocation of equitable rights recognised by a Court of Equity or that there was some other reason why the Court should, in the exercise of the limited discretion reposed in it by s 66G of the Conveyancing Act , decline to make an appointment of statutory trustees or sale of the subject property. [8] In Cain v Cain [2007] NSWSC 623 at [9]-[10], Young CJ in Eq noted that the Court will usually consider it appropriate to make an order under s 66G of the Conveyancing Act unless persuaded by cogent arguments from those who oppose. His Honour then noted Counsel's summary of the categories of cases in which the Court has declined to grant such an order as including: where the legal title is held by trustees and the trust instrument contains its own procedure for sale; where the plaintiff's conduct rates as an estoppel against the sale; and where an order would be incompatible with a contractual or equitable duty binding the applicant. In Tory v Tory [2007] NSWSC 1078 at [42], White J noted that an order under s 66G of the Conveyancing Act "is almost as of right unless on settled principles it would be inequitable to allow the application", and observed that an application would be refused if making the order would be inconsistent with a proprietary right or contractual or fiduciary obligation or on the basis of conventional estoppel or equitable estoppel. In Spathis v Nanos [2008] NSWSC 418 at [19]-[20], Jagot AJ observed that the discretion was not at large and is not to be exercised by reference to personal views about hardship or unfairness. The Court of Appeal also noted that the discretion to refuse relief under s 66G of the Conveyancing Act was a "limited one" in Ross v Ross [2010] NSWCA 301 at [36]; see also National Australia Bank Ltd v Pasupati [2011] NSWSC 540 at [20].
4. As noted by Black J, there is no general jurisdiction to refuse to grant such an order on the basis of hardship or unfairness: Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 at [36] (Tobias AJA, with whom Bergin CJ in Eq agreed).

Ms Ibrahim's position

1. Ms Ibrahim is the mother of six, now adult, children. The plaintiff is their father. She describes her occupation as "homemaker".
2. There appears to be no dispute that the Property was purchased by both Mr and Ms Ibrahim with cash and a loan. The loan was in the name of both parties and was paid off in the early 2000s while they were living together. There was a factual dispute as to who had contributed what to the mortgage payments, but there was insufficient detail to allow me to determine that issue, had it been relevant.
3. In December 2010, Mr Ibrahim purchased a property at Bass Hill in his own name for $420,000 (Bass Hill Property). Westpac records demonstrate that, by October 2013, he owed $308,954.72 on the mortgage for that property. His evidence was that he still has a mortgage over that property. Ms Ibrahim's evidence was that the Bass Hill Property was purchased "together" as an investment property. She also asserted that she had assisted by saving money which was then used towards the purchase of that property. However, there was insufficient evidence to make a determination on that issue, had it been relevant.
4. Ms Ibrahim's affidavit includes the following: Since 2019 we have tried to mediate over the years to settle both property issues of [the Property] and [the Bass Hill property] but he said to me he will not let me have any shares, and all the years I have been paying everything in the house I'm currently residing in. Mr Ibrahim denied he would not give Ms Ibrahim her share of the Property. He did not respond in his affidavit to the allegation concerning the Bass Hill Property.
5. It is understandable that Ms Ibrahim feels emotional in relation to Mr Ibrahim's sole ownership of the Bass Hill property; Mr Ibrahim lives in it and is seeking the sale of the Property in which she lives and is seeking 50% of the proceeds of sale. Mr Khalil submitted: KHALIL: that she wants - doesn't want to sell the house. I mean, I don't know if you can - I mean, that's from her and they're trying to say the only reason she doesn't want to because there was, like, there was witnesses and saying, like, she was, like, was said to her that the other house - she had nothing to do with it and if she sells this that she's - that's it, like, just only that property and that she's going to lose everything and the other property. HER HONOUR: So there is something in her affidavit which - is this what you are referring to? KHALIL: That's why she - at the end, like, that's why she didn't agree about selling the property. Actually, that was in the - was that in the - did you write in the affidavit … like, was said to her that the other house - she had nothing to do with it and if she sells this that she's - that's it, like, just only that property and that she's going to lose everything and the other property. DEFENDANT: Your Honour, can I say something. There was a time before we went to look for houses when we wanted to move from the house because the house wasn't, like, healthy and the area wasn't healthy. When we went and we tried to get a loan we couldn't get a loan by then. That's why I - I save money and bought the house in Base Hill. So that was an investment house. We can sell this, too - both houses - and buy a house in a better area. But all the ideas he comes after - after the Base Hill house. He comes with all the farm idea and all this idea and he already did go then buy - bought land and a farm with his sister and he didn't put it in his name. He got a loan and he put it in his daughter loan - name. If it wasn't for me we wouldn't have a house. If it wasn't for me would not have a house because I paid. I paid the whole house. KHALIL: Like I said, your Honour, at the start the only - like, at the start, thinking when they wanted to sell the house because of - like…(not transcribable)..that's - but you don't want to actually mention on the witness end, like, he said, "That's your house. You do what you want with it." But then there was word - like, she was on the thought that he'll take the other house and she'll keep this house. That's why she was agreeing before with the sale. But then other things, like, there was - you probably understand that there was fights with him - not fights - arguments and disagreement. No, this other house is his and this is the only house that they shared
6. However, as explained to Ms Ibrahim, this case only concerns the Property, and I have not been asked to determine the circumstances of the purchase of the Bass Hill property and whether Ms Ibrahim has any beneficial interest in it or any rent obtained by Mr Ibrahim over the years while he was living in the Property.
7. Mr Robinson, counsel for the plaintiff, candidly submitted to the Court: ROBINSON: I know it's not my place to interfere here, your Honour, yet. It may be that, in fact, there's a Muschinski v Dodds situation with other properties.… … HER HONOUR: Yes, Mr Robinson, anything in reply? ROBINSON: No. Only, your Honour, that what I've already said and that is that if - there's a equitable interest that may be in some other property.
8. Ms Ibrahim seems to have understood this: KHALIL: … she's going to leave it in the Court's hand now, like, and she keeps saying God as well … HER HONOUR: But has she heard that even if this order is made she may have rights. KHALIL: I'll advise her. … HER HONOUR: She may have rights. I do not know. I am not telling her she does. But she should investigate with people who can help her as whether she has rights in other places about anything else. But all I'm being asked to decide is about one particular property where the title says they both own it.
9. Ms Ibrahim appears to have been aware of Mr Ibrahim's desire to sell the Property since September 2018, when Mr Ibrahim's solicitor wrote to her to indicate that if an agreement was not reached, Mr Ibrahim would apply to sell the Property and each party would receive 50% of the proceeds, and attached a copy of the draft Summons. Ms Ibrahim did not respond to the letter.
10. Mr Ibrahim's solicitor also contacted Ms Ibrahim in September 2021 to seek consent for a sale of the Property. There was also no response to that letter.
11. However, she has not sought orders from the Federal Circuit and Family Court of Australia under the Family Law Act 1975 (Cth) or the Property (Relationships) Act 1984 (NSW) in relation to any rights to assets of the relationship with Mr Ibrahim. No such application has been foreshadowed. Even if it had been foreshadowed, that would not necessarily mean a stay of this judgment would be granted: Grizonic v Suttor [2004] NSWSC 137.
12. Ms Ibrahim's current proprietary interest in the Property is as a joint tenant. Such interest could only be altered if she asserted a contractual or fiduciary relationship existed between the parties concerning the Property, which she did not.
13. When Mr Khalil suggested that there was some agreement between the Ibrahims as to who would get to keep which house, I explained to him and Ms Ibrahim that there was nothing in her affidavit concerning an agreement, notwithstanding that she may have had thoughts about the situation. Ms Ibrahim explained by way of submission: Because I trusted him. I didn't know. Because, like, we were living in a relationship as marriage and as a Muslim, you supposed to just look after your kids and listen to whatever he said, like, I had no say. However, she did not give any evidence of conversations or any agreement between the parties or any reliance she placed on anything Mr Ibrahim had ever said.
14. Therefore, I am not satisfied that Ms Ibrahim has raised any issue in the form of an estoppel or binding agreement that would stand in the way of trustees for sale being appointed. In the circumstances, there is no ground for the exercise of the discretion to refuse the order sought: McDonald v Ellis [2018] NSWSC 278 at [8]-[9] (Darke J).
15. Mr Khalil stated that an order for sale would render homeless Ms Ibrahim and one of her daughters and grandchildren who live with her at the Property. There was no evidence to that effect in Ms Ibrahim's affidavit; even if accepted, it is not relevant to the discretion to make s 66G orders.
16. However, Ms Ibrahim is entitled to contribution for money she has expended on rates. The relevant principle was expressed in Forgeard v Shanahan (1994) 35 NSWLR 206 at 224 (Meagher JA; Mahoney JA agreeing): Apart from questions of improvements and occupation fees, which arise from the relationship of co-owners, it will also often happen that co-owners are joint debtors (for example, on a mortgage, or because rates are levied on the property). If one co-owner pays such a debt in full he is entitled to require the other co-owner to contribute a rateable amount; at least that is the prima facie position. In this regard the parties' rights arise from the equitable doctrine of contribution, not from the law of property (see Gibbs CJ in Muschinski v Dodds (1985) 160 CLR 583 at 596-597), that is, they would apply in the case of all joint debts even if the debtors owned no property.
17. Ms Ibrahim's evidence was that she has paid all the council rates, and other charges from 2014 to date. While she has not filed a cross-summons seeking such relief, I consider her evidence makes plain that she claims she has made these payments and Mr Ibrahim has not disputed such a claim, and it does not take him by surprise. Mr Robinson accepted he had no evidence to suggest Mr Ibrahim had paid the rates while he was away from the Property or since 2017. Mr Robinson did not wish to be heard against an adjustment for such money as Ms Ibrahim has paid out.
18. I consider it appropriate to make an order that the trustees take an account of the amount Ms Ibrahim can demonstrate to their reasonable satisfaction that she has spent, and for 50% of that sum to be deducted from Mr Ibrahim's share of the proceeds of sale and paid to her.
19. Ms Ibrahim also complains that she has paid for "all maintenance" and adduced evidence of receipts for various maintenance bills. However, no allowance will be made for a co-owner who has carried out repairs and maintenance: see eg Leigh v Dickerson [1881-85] All ER Rep 1099.
20. While she did take issue with Mr Ibrahim's statement that he had paid for renovations carried out in 2015 and tendered copies of receipts without objection from Mr Ibrahim to demonstrate she had paid for works, she did so to demonstrate that she has been paying for the Property, rather than seeking an order for the value of the improvements. Had she sought such an order, then Mr Ibrahim may have been entitled to seek an offset of a nominal sum for occupation rent: see eg Callow v Rupchev [2009] NSWCA 148.

Has the joint tenancy been severed?

1. Mr Ibrahim submitted that the Court ought to find that the joint tenancy was severed through the parties' conduct, and therefore it is possible to make orders as to the distribution of the net proceeds of sale in a 50:50 proportion.
2. In Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Co), the author observed at [6.490] (citations omitted): Strictly speaking, joint tenants do not have proportionate shares in the land. It might therefore be asked how a joint tenant can convert his or her entitlement in the entire estate or interest into a proportionate share held as tenant in common. But for the purpose of severance a joint tenant is regarded as having a potential share in the land commensurate with that of the other joint tenants. Where there are two joint tenants, that potential share is one-half; where there are three joint tenants, it is one-third and so on. This potential share the joint tenant can deal with unilaterally during his or her lifetime. By so dealing with it, that share may be "severed" from the other shares and converted into an "aliquot" undivided share held in common, not jointly. See also The Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 at 298 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
3. There has been no formal severance of the joint tenancy pursuant to s 97 of the Real Property Act 1900 (NSW). Equity will regard a joint tenancy as having been severed where there is agreement between the joint tenants to going forward as tenants in common: Wright v Gibbons (1949) 78 CLR 313 at 322 (Latham CJ). In finding an agreement it is appropriate to consider the conduct of the parties and whether they treated themselves as joint tenants or tenants in common. It is not necessary that the parties understand what joint tenancy or severance is, merely that they have a mutual intention that the right of survivorship is not to apply, and they intended that they would be entitled to separate shares of the proceeds of sale if the property were sold: see eg Fenato v Antonello [2006] NSWSC 763 at [21] (Campbell J). It is possible that a joint tenancy is severed where an intimate relationship comes to an end and the parties choose to informally divide their assets: see eg Scott v Scott [2009] NSWSC 567 at [102] (Ward J, as the President then was). However, the particular facts in each case must be considered, and the mere fact that Mr Ibrahim moved out of the Property in 2017 does not, in itself, suggest that they agreed to divide assets once and for all. For instance, it is possible to envisage that a joint tenant may move out of the family home for a time but later reconcile with the other joint tenant.
4. Mr Ibrahim sought a finding that the parties had severed the joint tenancy by reason of two attempts or discussions about selling the Property.
5. First, in 2015, Ms Ibrahim appointed her sister as real estate agent to sell the Property. Ms Ibrahim stated that the appointment of her sister was with Mr Ibrahim's consent and agreement, which Mr Ibrahim denied. Her sister did not give evidence at the hearing, nor was she asked to be available. However, it is not necessary to decide this contested fact, because, even if I accepted Mr Ibrahim's version of the matters above, I am not persuaded that it demonstrates that the parties acted in a manner such that an inference of severance should be drawn. Ms Ibrahim's position was that the Property was a "family home", which is more consistent with an intention to hold as joint tenants. To the extent Ms Ibrahim wanted any sale of the Property, her evidence was replete with references to joint decision-making with Mr Ibrahim as to sale in order to buy a property in another suburb, but not sale in order to facilitate Mr Ibrahim's sole purchase of a farm: Q. You wanted to sell the house in 2015. That's correct? A. When we - yeah. We wanted to sell the house. Q. And in 2016 when he came to you and said, "Look, I want to buy a property in Goulburn. I need to‑‑" A. No, no. It wasn't - I think - sorry, when he wanted to sell the house it was before that. We - he wanted to sell the house to buy the farm. Q. Let me suggest to you that, in fact, what he said to you is, "I want to borrow money. I want to borrow money to buy the house in - buy a property in Goulburn." Just do your best to remember what was said and tell me whether that's true or not. A. We never agreed to sell the house to buy the farm.
6. Secondly, in 2016, Mr Ibrahim discussed raising money against the Property or selling the Property. Ms Ibrahim agreed that they discussed selling the Property and the Bass Hill property to buy a better family home. Mr Ibrahim brought a potential buyer to the Property, but Ms Ibrahim did not agree to sell at that time. On the other hand, Mr Ibrahim's evidence was that the decision to sell the Property was his sole intention and that Ms Ibrahim said to him words to the effect of, "If you want, sell the house and give me my share" in early 2016, which led him to seek a buyer for the Property.
7. I am not persuaded that either separately or together those attempted sales demonstrate an agreement to sever the joint tenancy.
8. Mr Robinson submitted that, should I not be persuaded the joint tenancy had been severed, a different form of final orders would be required than those originally sought, particularly as the terms of distribution between the parties would need to be reconfigured, and it may be that one of the parties can unilaterally sever the joint tenancy pursuant to s 97 of the Real Property Act 1900 (NSW) as a precondition to any sale of the Property.

Trustees

1. Mr Ibrahim proposed Mr Andrew Paul Bobb, solicitor, and Mr Sayed Khedr, solicitor, as trustees. Both consent to such appointment. Ms Ibrahim did not raise any objection to them being appointed, should an order for sale be made.
2. I am satisfied that they are fit and proper persons to act as trustees for sale and that they have the necessary skill and experience to do so. I am satisfied that they ought to be paid for their role at their disclosed hourly rates, which are reasonable and capped at $10,000.

Costs

1. As to costs, the plaintiff seeks an order that his costs of the Summons be paid out of the net proceeds of sale prior to any distribution amongst the co-owners. That seems to me to be appropriate and in accordance with established principles in relation to s 66G proceedings: see Kardos v Sarbutt (No 2) [2006] NSWCA 206 at [28] (Brereton J, with whom Basten JA and Hunt AJA agreed).

Orders

1. In the circumstances, I will ask the parties to seek to agree on proposed short minutes of order giving effect to this judgment.
2. The Court orders that: 1. The parties are to confer with a view to agreeing on orders giving effect to this judgment. 2. If they are unable to agree, each party is to provide their version of final orders together with no more than 3 pages of submissions to the Associate to Peden J by 3 February 2023. 3. Liberty to apply on 3 days' notice.

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: 08 December 2022