Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044

Supreme Court New South Wales

Medium Neutral Citation: Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044 Hearing dates: 4,5,6 March 2014, 25 March 2014 and 28 March 2014 Decision date: 04 August 2014 Jurisdiction: Equity Division Before: Robb J Decision: (1)Declare that the first defendant holds the property located at 8 Yeend Street Merrylands, in the State of New South Wales, being the property in folio identifier Lot 2 in Deposited Plan 240829 (the "Property") on a constructive trust as to half of the beneficial interest in the Property such that that interest in the Property will vest in the plaintiff upon the death of the first defendant. (2)Declare that the plaintiff's interest in the Property in accordance with par (1) is subject to a charge in favour of the first defendant to secure the amount of $25,000, which the plaintiff is liable to contribute towards the mortgage to which the Property is subject. (3)Order under s 20 of the Property (Relationships) Act 1984 (NSW) that the interests of the plaintiff and the first defendant in the Property (including as declared in pars (1) and (2)) be adjusted with the result that: (a)The plaintiff is from the date of these orders entitled to half of the beneficial interest in the Property; (b)The first defendant is from the date of these orders entitled to half of the beneficial interest in the Property. (c)The plaintiff's interest in the Property is to be subject to an obligation to pay $25,000 towards repayment of the debt that is at present owed by the first defendant on the security of a mortgage over the Property. (d)The first defendant's interest in the Property is to be subject to an obligation to pay the balance of the debt that is at present owed by the first defendant on the security of a mortgage over the Property (4)Order for the return of exhibits as set out in par 201. Catchwords: EQUITY - trusts - constructive trust - common intention trust - promise to leave house in will - s 20 Property (Relationships) Act 1984 - adjustment of interests in property Legislation Cited: Property (Relationships) Act 1984 (NSW) ss 18, 20, 22 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Austin v Hornby [2011] NSWSC 1059 Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 Baker v Towle (2008) 39 Fam LR 323 Dable v Peisley [2009] NSWSC 772 Ducker v Smith [2011] NSWCA 2012 Green v Green (1989) 17 NSWLR 343 Ireland v Pratley [2013] NSWCA 445 Murgic v Murgic [2011] NSWSC 971 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 Saliba v Tarma [2009] NSWSC 581 Shepherd v Doolan [2005] NSWSC 42 Watson v Foxman (1999-2000) 49 NSWLR 315 Category: Principal judgment Parties: Aytul Ak-Tankiz (plaintiff); Ferat Ak (first defendant) and Ramazan Ak (second defendant) Representation: Counsel: N M Carney (plaintiff) E H Baskerville (defendants) Solicitors: John Karacan (plaintiff) James Hassetts (defendants) File Number(s): 2012/126261