ESBER v. MASSIH [2006] NSWSC 321

New South Wales Supreme Court

CITATION : ESBER v. MASSIH [2006] NSWSC 321

HEARING DATE(S) : 30, 31 May 2005; 10 June 2005; 2 Spetember 2005

JUDGMENT DATE : 26 April 2006

JURISDICTION : Equity

JUDGMENT OF : Hall J at 1

DECISION : The plaintiff is entitled to relief in terms as follows - (a) a declaration that the defendant holds half of the land known as 31 Walker Street, Merrylands, being the land comprised in Folio Identifier B/435743 on trust for the plaintiff; (b) a declaration that the plaintiff is entitled to half of any profits from the development and sale of the property being two duplex units, 31 Walker Street, Merrylands; (c) an order that trustees be appointed for the sale of the property referred to in (a) and (b) pursuant to s.66G of the Conveyancing Act 1919 (NSW); (d) an order that the said property in (a) and (b) be vested in such trustees subject to any encumbrances affecting the entirety of the land but free from encumbrances, if any, affecting any undivided share or shares therein to be held by such trustees upon the statutory trust for sale under Division 6 Part 4 of the Conveyancing Act 1919 (NSW). I propose to make declarations and orders accordingly. I propose, unless the parties wish to lodge written submissions within the next 14 days, to order that costs should follow the event and that, accordingly, the defendant pay the plaintiff's costs of the proceedings. I grant leave to the parties to bring in short minutes of orders to give effect to the orders.

CATCHWORDS : Joint venture arrangement - plaintiff as project manager/builder - property purchased and registered only in defendant's name - plaintiff to provide skill and supervision - defendant to finance development - alleged agreement - no profit margin on costs but agreement to equally share profits on sale - circumstances of relationship consistent with joint venture partnership - suggestive of a relationship other than that of mere owner/builder - plaintiff possessed of a sufficient interest in the developed property with a right to have it sold and the proceeds divided.