Simonian v Simonian [2000] NSWSC 497

New South Wales Supreme Court

CITATION : Simonian v Simonian [2000] NSWSC 497 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4685/99 HEARING DATE(S) : 10 May 2000 JUDGMENT DATE : 7 June 2000

Noubar Simonian (Plaintiff) PARTIES : v Shashikala Simonian (Defendant) JUDGMENT OF : Davies AJ

COUNSEL : P: Mr K F Morrissey D: Mr J S van Aalst SOLICITORS : P: David J White D: Browne & Associates CATCHWORDS : Possession - trust - whether home unit transferred on terms that transferee would permit the occupants to reside therein during their lifetimes. Conveyancing Act 1919, ss23B, 23C, 54A LEGISLATION CITED : Real Property Act 1900, s42 Family Law Act 1975 (Cth) Family Provision Act 1982 DECISION : Application dismissed. See para 18.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

DAVIES AJ

7 JUNE 2000 4685/99 - Noubar SIMONIAN v Shashikala SIMONIAN JUDGMENT 1 HIS HONOUR: In these proceedings, the plaintiff, Noubar Simonian ("Noubar"), seeks judgment for possession of a home unit occupied by his step-mother, Shashikala Simonian ("Shashikala"). Shashikala has cross-claimed for a declaration that Noubar holds the subject property upon the trust to permit Shashikala to reside therein and to use the same as her home during her lifetime. In the proceedings, Mr K F Morrissey of counsel appeared for Noubar. Mr J S Van Aalst of counsel appeared for Shashikala. 2 The proceedings were commenced shortly after the death of Dikran Simonian ("Dikran"), who was the father of Noubar and the husband of Shashikala. Dikran had married three times. Noubar was the son of Dikran's first wife. After the death of his first wife, Dikran married his second wife, Dirouhi. In September 1972, Dikran purchased the subject home unit and it was registered in the joint names of himself and Dirouhi. On 29 October 1984, after the death of Dirouhi, Dikran married Shashikala, whom he had met in India. 3 On 20 February 1986, Dikran made a will in which he left the moneys in any building society or other financial institution to his daughter, Sonia, and the residue of his estate both real and personal to his son, Noubar. The will provided that the executor was to permit Shashikala to reside in the subject property, Unit 2 Number 31 Ness Avenue, Dulwich Hill, during her lifetime, free of all rates, taxes, insurance premiums, repairs of a recurring nature and other outgoings. 4 A further will was executed on 18 March 1988 which made a slightly different provision for Shashikala. The provision read: