Egan v Egan [2018] NSWSC 202

Supreme Court New South Wales

Medium Neutral Citation: Egan v Egan [2018] NSWSC 202 Hearing dates: 12 - 13 February 2018 Decision date: 01 March 2018 Jurisdiction: Common Law Before: Davies J Decision: The parties are to bring in Short Minutes of Order to reflect my reasons for judgment. Catchwords: ESTOPPEL – estoppel by deed or convention – estoppel by convention – plaintiff mother sought possession of property owned by defendant daughter pursuant to Deed of Loan and mortgage executed in favour of plaintiff – whether Deed of Loan and mortgage were sham documents intended by parties merely to deceive defendant's estranged husband in respect of any family law property proceedings – whether defendant was induced to sign documents by a representation that neither document was intended to have its apparent, or any, legal consequences – defendant did not meet "heavy onus" of proving a sham

EQUITY – general principles – rules and maxims of equity – unclean hands – effect of defendant's complicity in alleged sham on availability of equitable relief – defendant could not rely on personal equity to overcome effect of registration pursuant to Real Property Act 1900 (NSW) s 42

INTERPRETATION – general rules of construction of instruments – Deed of Loan provided that defendant "must pay principal and interest" – term not uncertain because interest rate, principal and duration of loan were specified – plaintiff not required to give oral or written direction in relation to payment of instalments

INTERPRETATION – general rules of construction of instruments – whether Deed of Loan incorporated into registered mortgage – whether contra proferentum rule applied – reference to "Deed of Acknowledgement of Loan" in annexure to registered mortgage clearly a falsa demonstratio for the words "Deed of Loan"