Menezes v Salmon [2009] NSWSC 2

New South Wales Supreme Court

CITATION : Menezes v Salmon [2009] NSWSC 2

HEARING DATE(S) : 02/12/08, 03/12/08 (Submissions completed 04/02/2009)

JUDGMENT DATE : 4 May 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

CATCHWORDS : Equity. Trusts & Trustees.Express trust created inter vivos. Three properties purchased in the name of another with the purchasers executing a mortgage to secure borrowings. Two properties held to be the subject of an express trust notwithstanding the lack of writing required by s23C of the Conveyancing Act 1919. Third property the subject of a resulting trust in proportion to the contributions. - Contracts. General contractural principles. Illegal and void contracts. Operation of Foreign Acquisitions and Takeovers Act (Commonwealth) 1975. Failure to give notice. Contract not prohibited under Act and held that the failure to give notice did not make contract void.

PARTIES : Ralph (also known as Roy) Menezes v Olivia Salmon

FILE NUMBER(S) : SC 2374/2005

Mr J Smith for plaintiff COUNSEL : Mr M Watts for 1st defendant Mr A Todd for 2nd defendant

Richard Barron for plaintiff SOLICITORS : Anthony Buckland for 1st defendant Brock Partners for 2nd defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Associate Justice Macready

Monday 4 May 2009

2374/05 Ralph (also known as Roy) Menezes v Olivia Assey & Fabian Menezes JUDGMENT

1 His Honour: These proceedings were commenced by statement of claim filed 12 April 2005 in which the plaintiff seeks declarations as to his ownership of a number of properties. The plaintiff is Ralph Menezes (known as Roy), a citizen of India who gave evidence by way of video link. The first defendant, Olivia Assey, was until August 2001 the de-facto partner of the second defendant, Fabian Menezes, who is the plaintiff's brother. They were at all relevant times resident in Australia. The second defendant submitted to any orders the Court might make and did not take any further part in the proceedings. 2 The first defendant and the second defendant are the registered proprietors of three properties. Two properties are located in Quakers Hill, one in Farnham Road and one in Cadac Place (the Quakers Hill properties). The third property is in Kurrajong. There are mortgages on all three properties. 3 From about 1994 to August 2001 the defendants lived together in a de-facto relationship. The defendants purchased the three disputed properties in their names and they became registered proprietors of each of the properties. Contracts and mortgages for the Farnham Road property were entered into by the defendants in March 1998. Contracts and mortgages for the Cadac Place property were entered into by the defendants in April 1998. Contracts and mortgages for the Kurrajong property were entered into by the defendants in July 1998.