Djmal v Cemal & Ors [2015] NSWSC 1125

Supreme Court New South Wales

Medium Neutral Citation: Djmal v Cemal & Ors [2015] NSWSC 1125 Hearing dates: 6 August 2015 Decision date: 06 August 2015 Jurisdiction: Equity Division Before: White J Decision: Refer to para [32] of judgment. Catchwords: EQUITABLE REMEDIES – resulting trust – presumption of advancement – constructive trust – failure of joint endeavour – plaintiff purchased property for her son – property transferred to son and his wife – purchase made for the purpose of the son's building a house on the land for the plaintiff and her daughter to live in – son did not build any house – relations within the family broke down – held that the presumption of advancement was rebutted as the intention to advance was conditional on the property's being used to build a house for the plaintiff and her daughter, so that the property was held on trust upon failure of the condition, and alternatively a Baumgartner v Baumgartner constructive trust arose upon failure of the parties' joint endeavour

EQUITABLE REMEDIES – resulting trust – Quistclose trust – plaintiff paid money into a newly opened bank account held by her son and his wife – money was to be used by the son to build a house for the plaintiff – son and his wife made unauthorised withdrawals of most of the money prior to a freezing order being made – held that the money was paid under a common intention Quistclose trust, that the bank account was held on a resulting trust for the plaintiff when the purpose of the payment failed, and that the son and his wife are liable to restore the trust funds Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Currie v Hamilton [1984] 1 NSWLR 687 Muschinski v Dodds (1985) 160 CLR 583 Baumgartner v Baumgartner (1987) 164 CLR 137 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Australasian Conference Limited v Mainline Constructions Pty Limited (in liq) 141 CLR 335 Re MF Global Australia Ltd (No 2) (in liq) [2012] NSWSC 994; (2012) 267 FLR 27 Category: Principal judgment Parties: Nursel Djmal (Plaintiff) Ozay Cemal (1st Defendant) Bernadine Mau Elizabeth Haare (2nd Defendant) National Australia Bank Limited (3rd Defendant) Representation: Counsel: M Fozzard (Plaintiff)