Odelli v Gabrielle [2024] NSWSC 468

Supreme Court New South Wales

Medium Neutral Citation: Odelli v Gabrielle [2024] NSWSC 468 Hearing dates: 26, 27 February 2024 Date of orders: 26 April 2024 Decision date: 26 April 2024 Jurisdiction: Equity - Real Property List Before: Parker J Decision: See [130] Catchwords: EQUITY — application for appointment of trustees for sale — defendant denies plaintiff's ownership of half share of property — whether plaintiff holds property on constructive trust for defendant — plaintiff inherited interest in property from son who predeceased her — treatment of evidence where maker is not available (deceased) Legislation Cited: Bankruptcy Act 1966 (Cth) Conveyancing Act 1919 (NSW) Evidence Act 1995 (NSW) Cases Cited: Eggins v Robinson [2000] NSWCA 61 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Forgeard v Shanahan (1994) 35 NSWLR 206 Orr v Ford (1989) 167 CLR 316 Plunkett v Bull (1915) 19 CLR 544 Texts Cited: Nil Category: Principal judgment Parties: Edda Odelli (Plaintiff) Chakib Carlo Gabrielle (Defendant) Representation: Counsel: N Kulkarni (Plaintiff) A Moutasallem (Defendant)

Solicitors: Lane & O'Rourke (Plaintiff) Avon Lawyers (Defendant) File Number(s): 2023/43730 Publication restriction: Nil

JUDGMENT 1. These proceedings arise out of a dispute concerning the ownership of a residential property at Redman Parade, Belmore, in south-western Sydney. The property is registered in the names of the defendant and plaintiff as tenants in common in equal shares. The defendant claims that the plaintiff's share is held on trust for him. 2. The property was originally acquired in 2003 in the names of the plaintiff, Chakib Carlo Gabrielle, and Stephen Anthony Odelli. They were both then in their early thirties and had been close friends since school. For convenience and without disrespect, I will refer to them as "Carlo" and "Stephen". The acquisition was financed by a loan in their names from National Australia Bank Limited ("NAB"), secured by a registered mortgage over the property. 3. Stephen was a panel-beater by trade. In 2008 he died in a boating accident at the age of only 36. He did not leave a will and his parents, Guido Odelli and Edda Odelli, inherited his estate, including his share of the Redman Parade property. About five months after Stephen's death, Mr and Mrs Odelli obtained a grant of letters of administration for his estate. They did not however take any steps to deal with his share of the property, which remained registered in his name. Mr Odelli died in 2019 leaving Mrs Odelli the sole heir to Stephen's share of the property. 4. According to Carlo, following the acquisition of the property, Stephen, and after Stephen's death, his parents, had nothing to do with it. Carlo arranged for it to be tenanted, using the rent to meet the mortgage payments and other outgoings. But not all of the outgoings appear to have been met: payments of council rates and water rates are very substantially in arrears (although Carlo disputes the amounts claimed). 5. In the first half of 2021, or thereabouts, Mrs Odelli consulted Mr Brian Lane, solicitor of Lane & O'Rourke, about the situation. Mr Lane was assisted by his daughter, Emily Lane, who is also a solicitor with the firm. 6. Later in 2021, Lane & O'Rourke arranged for Stephen's half share to be transmitted to Mrs Odelli. This of course did not affect the mortgage to NAB, which remains on the title. Mrs Odelli has not made any mortgage payments (although Stephen's estate remains liable for a half share of the loan). But, she does say that she has made payments towards the rates.