Chalhoub v Chalhoub [2005] NSWSC 572

New South Wales Supreme Court

CITATION : Chalhoub v Chalhoub [2005] NSWSC 572

HEARING DATE(S) : 27 August, 6 and 7 December 2004, 21 March 2005

JUDGMENT DATE : 22 June 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice McLaughlin at 1

DECISION : (1). I order that the summons be dismissed. (2). I declare that, pursuant to the agreement made on 26 May 1998 between the Plaintiff and the Defendant, the Defendant has the right to the exclusive occupation of the property situate at and known as 100 The Avenue, Granville ("the subject property") during his lifetime. (3). I order that the Plaintiff be restrained from selling, transferring or encumbering his interest in the subject property during the lifetime of the Defendant, or otherwise interfering with the quiet enjoyment by the Defendant of the subject property during the Defendant's lifetime. (4). I order that the cross-claim be otherwise dismissed. (5). I make no order as to costs, to the intent that each party shall bear his own costs of the proceedings.

CATCHWORDS : Statutory trust for sale. Discretion of Court. Asserted agreement inconsistent with statutory sale. Challenge to validity and efficacy of asserted agreement and to transfer of property into co-ownership. whether Defendant was in a position of special disadvantage in relation to Plaintiff. Unconscionable conduct. Whether asserted agreement was unjust. Inferences which the Court may draw from failure of a party to call a witness.

Contracts Review Act 1980 LEGISLATION CITED : Conveyancing Act 1919 Family Provision Act 1982

Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Ex parte Permanent Trustee Nominees (Canberra) Limited [1989] 1 QdR 314 CASES CITED : Forgeard v Shanahan (1994) 35 NSWLR 206 Jones v Dunkel (1959) 101 CLR 298 Ngatoa v Ford (1990) 19 NSWLR 72