Tamer v Official Trustee in Bankruptcy [2016] NSWSC 1033

Supreme Court New South Wales

Medium Neutral Citation: Tamer v Official Trustee in Bankruptcy [2016] NSWSC 1033 Hearing dates: 15 July 2016 Decision date: 15 July 2016 Jurisdiction: Common Law Before: Sackar J Decision: Refer para [14] Texts Cited: N/a Category: Costs Parties: Ali Tamer (first plaintiff) Susan Tamer (second plaintiff)

Official Trustee in Bankruptcy (defendant) Representation: Counsel: Ms N Obrart (plaintiffs) C O'Neill (defendant)

Solicitors: Mona Youssef & Associates (plaintiffs) Hicksons (defendant) File Number(s): 2015/190372 Publication restriction: N/a

Judgment

Ex tempore reasons 1. In this matter, I gave judgment on 31 May 2016. The central issue in the proceedings was whether or not there existed a constructive trust, and hence more particularly, whether, at the relevant point in time, there was a common intention that such a trust be created. I found in favour of the plaintiffs on those issues. 2. There were attempts made to resolve the matter but in the end the matter was fully contested. In any event what is left outstanding is the question of costs. 3. The defendant seeks one of a number of alternative costs orders. First, it submits that it should get it's costs of the proceedings. Alternatively, it should have it's costs from the second day of the trial or again in the alternative that each party should pay it's own costs. 4. The plaintiffs on the other hand, submit that the court should exercise its undoubted discretion and order that the plaintiffs get their costs of the proceedings, as they should follow the event. 5. The principal argument put by the defendant in support of one or other of the alternative orders is more appropriate as opposed to costs following the event is because certain documents should have been made available by the plaintiffs at an earlier point in time and had they, the defendant would have desisted in the proceedings. Mr Ng (from the defendant) says in his affidavit that upon disclosure of certain documents which are bank statements, the defendant would have desisted in the possession proceedings and withdrawn it's defence if it had been aware of the relevant documents. 6. I find that assertion difficult, if not impossible to accept. 7. It is important to reiterate that a core issue was whether or not there was a common intention to create a trust. There were no contemporaneous documents ever advanced by the plaintiff expressly proving that intention. No legal advice was obtained prior to the alleged creation of the trust, and there was no diary note or memorandum to that effect. 8. In determining mutual intention, the plaintiff's case very largely, if not entirely, depended upon whether or not I accepted Miss Rana Tamer's assertion, and that of her father, that there was such an intention and that they had the conversations alleged. 9. That determination in my view could not really occur until those persons gave evidence and were cross examined. I have made remarks about each of those persons and their credit in the course of my judgment. 10. It is true that the plaintiffs attempted to adduce documentary materials, unsurprisingly where they could, in order to corroborate that common intention. However many of the documents relied upon, first, did not cover the whole period from the date of the relevant RAMS mortgage. Secondly, they did not disclose any consistent pattern of behaviour. Thirdly, at all times they had to be juxtaposed as a matter of practical reality against the unequivocal assertions by Miss Rana Tamer both to the Official Trustee and to RAMS, that no trust existed. These latter documents were heavily relied upon by the defendant in the course of the trial. 11. Mr Ng in his affidavit says that, had he been aware at an earlier point in time of particular bank statements, he would have changed his attitude to the litigation, and recommended ending it accordingly. He was not cross-examined, but I am not bound to accept his evidence, nor that of Mr Abraham, his superior, who says he would have accepted Mr Ng's recommendation. What Mr Ng does not tell the Court however and I do not criticise him, or those who prepared his affidavit, is precisely what view he had formed up to that point in time, and why the particular documents concerned would have had such an effect on his attitude. Surely, if I may speculate rhetorically it would depend upon when those documents were shown to him, but assuming they were given to him at as early a point in time as they could have been obtained, he still would in my view have to inform the court how his attitude had developed to that point. 12. It is clear at some point he must have taken into account the documents in which Ms Tamer appeared to represent to others that there was no trust. On the other hand Ms Tamer and her father said in their affidavit evidence that they had in effect a common intention and yet Mr Ng must have, it seems rejected that evidence. Mr Ng does not really expose his thoughts in any detail nor his reasoning process, which is the principal reason why I cannot accept his assertion that the documents would have made a difference. 13. In any event I am not persuaded that those documents would or could have had such a dramatic impact upon him whenever they were disclosed, because as I have already said the core evidence of the common intention was that of Miss Tamer and her father, and the ultimate question was whether they were to be believed. The particular documents only corroborated part of the history, and ultimately, the balance of the history, indeed the substantial balance of that history turned necessarily, in my view entirely upon whether or not one accepted Miss Tamer and/or her father. 14. In all the circumstances therefore it does not seem to me that the defendant has raised any discretionary factor which would otherwise alter the usual order, and I am of the view that the usual order should apply. It follows the plaintiffs should have their costs of the proceedings against the defendant on an ordinary basis. ******