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: "NOTWITHSTANDING any of the preceding provisions of this my Will I HEREBY DIRECT my Trustee and the beneficiary or beneficiaries entitled to the property situate at and known as Number 2/31 NESS AVENUE DULWICH HILL to permit my wife SHASHIKALA N. RAJPOPAT to personally reside therein during her lifetime subject to payment by her during the period of her residence of all rates taxes insurance premiums repairs of a recurring nature and other outgoings of a recurring nature properly applicable to income in respect thereof PROVIDED HOWEVER AND I HEREBY DECLARE that such right of residence shall determine upon the death of my said wife OR upon receipt by my Trustee of a notice in writing signed by my said wife that she no longer desires to reside in the said property OR alternatively if for any reason whatsoever my said wife shall not reside in the said property for a period of six (6) successive months whichever event shall first happen." 5 On 23 May 1989, the Notice of Death of the joint proprietor was lodged in the Registrar General's office and, on 26 May 1989, Dikran executed a transfer of the subject property to his son, Noubar. The transfer was expressed to be in consideration of the receipt of $100,000. It is not in dispute that no sum was paid and it is not alleged that Noubar gave consideration for the transfer. 6 On 26 September 1989, Noubar made a will which provided as follows: " 4. AND I DIRECT that my dear father DIKRAN SIMONIAN shall have the right for his lifetime to reside in my home known as 2/31 Ness Avenue, Dulwich Hill subject to my step-mother SHASHIKALA SIMONIAN also having the right to reside at such property during her lifetime AND IN THE EVENT of my step-mother not residing at such property for a continuous period of six (6) months then her right to reside therein for her lifetime shall extinguish and come to an end AND I FURTHER DIRECT that my said father and step-mother during their residence in my said home will each share equally in the payment of all rates taxes insurance premiums repairs of a recurring nature and other outgoings to keep such property in reasonable order and condition." Noubar later made a different will which is not in evidence. 7 After the transfer of the property, Dikran and Shashikala continued to reside in the home unit. So did Noubar, although, during the last ten years, he also lived with a Mrs Walton in her home some days per week. In 1998, Noubar suffered a stroke and, needing care, lived more with Mrs Walton. Since the death of his father, Noubar has not lived in the subject property. 8 On 17 April 1999, in accordance with the terms of his will, the moneys which Dikran had in financial institutions went to his daughter Sonia. The rest of his assets passed to Noubar. No assets passed to Shashikala under the will. However, while Dikran was alive, Shashikala received a spouse's pension. Presumably, she now receives a widow's pension. It has not been suggested that Shashikala is a person with any significant means. 9 Shashikala gave evidence that she was unaware, until about 1996, of the transfer of the property, when this conversation occurred: "I had a conversation to the following effect with my late husband in about 1996: My late husband: 'I have signed papers to transfer the flat to Noubar.' I: 'Noubar earns money. I rely on you. You told me you were going to include my name in the title of this flat. This flat is our security for our old age.' My late husband: 'This is your home. You have to stay here. You belong here.' I: 'Noubar didn't look after his wife and son. He will not look after me. He doesn't care for me.' My late husband: 'He can't do that. It is a condition of my will that no one can remove us from here. This is your home. You belong here. You have to stay here. No body will kick you out of here.' I: 'How could you do this. Before we got married you said I will live like a queen.' My Late husband: 'You are right. I shouldn't have done this. Noubar will not return the papers now.' " 10 Subsequently, Shashikala took steps to improve her position. One was that Dikran wrote out the following note: "Sydney, 15/10/96 Dear, Mr. Solicitor. J D. Simonian, & My Wife Mrs. ShashiKala Simonian we shel live for all our lives, in this Two Room Flat. this is that we desire. Thank you Dikran Simonian" 11 Noubar, in his affidavit, gave evidence that, in early 1989, Dikran said to him, "I want you to have the house, I don't want Sashi to get it, I am going to give Sonia the money". He said that there was never any arrangement between Dikran and himself with respect to the occupancy of the home unit by his father or the defendant. In his cross-examination, however, he said that he had requested Dikran to transfer the unit to him. At first, he said that he did not promise his father that he and Shashikala could continue to reside in the unit for the rest of their lives. He said that he told his father that he wanted him to live in the unit for the rest of his life but he did not want Shashikala to do so. Ultimately, however, in his cross-examination, Noubar gave evidence that he promised his father that he and Shashikala could reside in the unit during their respective lives. Noubar gave this evidence: "Q. The promise was that if he it transferred the title of this property to you, you would make certain that he could reside in that property for his lifetime - you promised him that, didn't you? A. Yes, I promised my father that. Q. You also promised him that your stepmother, Sashi Simonian, would also have the same right to reside in that property during her lifetime - you promised him that also, didn't you? A. Yes, I promised him that." 12 As to his will of 26 September 1989, Noubar gave this evidence: "Q. And what you have recorded in paragraph 4 of that will, which I have read out to you, accurately reflects the promise you made to your father prior to him signing the transfer? A. It all depends. If my step mother stay good, she can stay there. If she was bad, she must go." 13 The oral evidence was hindered by the fact that Noubar's stroke had interfered with both his recollection and his speech, while Shashikala had reached an age where her recollection was faulty. Both Noubar and Shashikala were impaired and their evidence must be carefully tested. However, it became clear from Noubar's attitude that, shortly after his father's marriage to Shashikala, he formed a dislike of her. That dislike was confirmed by the fact that, less than a month after the death of his father, Noubar served a notice to quit upon Shashikala. Shashikala also had reservations about Noubar. She deplored the fact that he had left his wife and child and was living with another woman. 14 It is necessary for Shashikala to show that there was an understanding between Noubar and his father as to her occupancy of the home unit which was of such a nature as to affect legal relations. Shashikala must demonstrate statements or conduct such that the Court can conclude that there was a binding agreement between Noubar and his father as to her occupancy of the home unit which would be fraudulent for Noubar to deny. It is not sufficient for Shashikala to show that Noubar came under a moral obligation to care for her. It must be established that she was the beneficiary of an obligation undertaken by Noubar when he accepted the transfer of the title to the home unit. If that is established, equity will enforce the trust notwithstanding the lack of writing required by ss 23B, 23C and 54A of the Conveyancing Act, 1919 or the conclusive effect of the Certificate of Title provided by s 42 of the Real Property Act, 1900. 15 I have considered three possibilities which could explain the transfer of the title to Noubar in 1989. The first possibility is that Dikran, who was an Armenian, believed it was appropriate that his son should own the real estate and relied upon him as a dutiful son to look after his father and step-mother. However, a factor tending against this possibility is that there is no evidence that it was an Armenian custom that males should hold the assets of a family and undertake a moral obligation to care for other members. Indeed, the home unit had been purchased by the deceased in the joint names of himself and his then wife. Another factor is that Noubar gave evidence that he requested his father to transfer the property to him and promised Dikran that he and Shashikala could reside therein during their lifetime. 16 A second possibility is that Dikran was displeased with Shashikala and transferred the property to his son out of spite. Counsel for the plaintiff, Mr Morrissey, relied upon the fact that, for many years, Shashikala made frequent trips back to India. He tendered her passport and submitted that Dikran may have been displeased with the visits to India. However, the travels overseas, which I assume Shashikala took to visit her children and other members of her family, seem to me to be too fragile a base from which to draw such a conclusion. Shashikala gave evidence that her marriage to Dikran was a happy one. 17 The third possibility is that Noubar requested his father to transfer the home unit to him so as to ensure that Shashikala could not make a claim upon it in reliance on the Family Law Act, 1975 (Cth) or upon Dikran's estate in the event of his death in reliance on the Family Provision Act, 1982. This seems to me to be the probable explanation for what occurred. Dikran was a kind and generous man and a good husband. He acted in accordance with Australian customs when he purchased the home unit in the joint names of himself and his second wife. He showed, by his wills executed in 1986 and 1988, that he intended the home unit to go to Noubar but that Shashikala should have a right to reside therein during her lifetime. The transfer of the title in 1989 was a means of ensuring that that end occurred. Noubar said, in his oral evidence, that he asked his father to transfer the title to him and that he promised his father that he and Shashikala could reside in the unit for life. I think that that evidence is probable and I accept it. The probability is enhanced by the fact that Dikran made no other provision for Shashikala. If Noubar made the request for the reason I have mentioned, which I think is probable, then it is also probable that he discussed the matter with his father and explained why it was desirable that the home unit should be put in his name. I consider that there was such a discussion. I consider that it is probable that Dikran agreed to transfer the home unit to his son as a sensible precautionary action. I consider that it is probable that, in those discussions, Dikran made it clear that he and Shashikala should continue to live at the home unit during their respective lives and that Noubar agreed to that course. I consider it probable that it was in furtherance of the agreement that he had made with his father that Noubar executed his will of 26 September 1989, whereby he provided that, in the event of his prior death, his father and Shashikala should live in the home unit during their lifetimes. I take it that clause 4 of his will of 26 September 1989 expressed the agreement he had reached with his father. 18 It follows that the application for possession must be dismissed and that there should be a declaration that the plaintiff holds the property known as 2/31 Ness Avenue, Dulwich Hill on trust to allow his step-mother, Shashikala Simonian, to reside therein and to use the property as her home during her lifetime, and, in the event of her not residing in the property for a continuous period of six months, then her right to reside therein for her lifetime shall extinguish and come to an end. The right to reside shall be on terms that Shashikala Simonian pays all rates, taxes, insurance premiums and repairs of a recurring nature and other outgoings necessary to keep the property in reasonable order and condition. The plaintiff should pay the costs of the proceedings. I so order and declare. ********** Last Modified: 09/26/2000 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.