Ayshan v Abualadas [2024] NSWSC 678

Supreme Court New South Wales

Medium Neutral Citation: Ayshan v Abualadas [2024] NSWSC 678 Hearing dates: 23, 24, 27, 31 May 2024 Date of orders: 31 May 2024 Decision date: 27 May 2024 Jurisdiction: Equity - Real Property List Before: Parker J Decision: See [84], [101] Catchwords: EQUITY — trusts and trustees — two couples who are family purchased property with view to developing duplex — tenants in common in equal one-third shares (plaintiff's partner not included on legal title) — single mortgage over property agreed between the parties to be paid off in proportion to 50:50 contribution between couples — couples occupy duplex after construction — property subdivided but ownership and mortgage proportions unchanged — plaintiff claims beneficial ownership in half of property on the basis of constructive trust — determination of appropriate species of constructive trust — failed joint endeavour constructive trust and common intention constructive trust — whether joint endeavour was ever completed — whether common intention constructive trust, as pleaded, was sufficient to deal with continuing mortgage and loan obligations — held, failed joint endeavour constructive trust rather than common intention constructive trust Legislation Cited: Evidence Act 1995 Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137 Johnston v Allen (No 2) [2024] NSWSC 476 Makaritis v Makaritis [2022] NSWSC 468 Muschinski v Dodds (1985) 160 CLR 583 NSW Trustee and Guardian v Togias (2022) 110 NSWLR 86 Pipikos v Trayans (2018) 265 CLR 522 Shepherd v Doolan [2005] NSWSC 42 Texts Cited: Nil Category: Principal judgment Parties: Principal proceedings Linda Ayshan (First Plaintiff) Imad Ayshan (Second Plaintiff) Tareq Subhi Ahmed Abualadas (First Defendant) Emaan Zarour (Second Defendant)