Awad v Awad [2019] NSWSC 385

Supreme Court New South Wales

Medium Neutral Citation: Awad v Awad [2019] NSWSC 385 Hearing dates: 14-16 May 2018; 7 June 2018 Date of orders: 08 April 2019 Decision date: 08 April 2019 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following orders:

(1) The first cross-defendant shall bring in short minutes of order reflecting this judgment within seven days of the publication of this judgment.

(2) The cross-claimant shall file and serve any written submissions in relation to the alternative relief in prayers 3 and 4 within 14 days of the publication of this judgment. Any application to adduce evidence or for an oral hearing should be made in those written submissions. If such an application is made it should be accompanied by submissions in support of the application together with, in the case of further evidence, the actual form of the evidence proposed to be led by the cross-claimant.

(3) The first cross-defendant shall file and serve any submissions in reply on or before 14 days after the receipt of submissions pursuant to order (2) above.

(4) In the event that any application for leave to lead further evidence, the Court will determine that question together with any application for a further oral hearing on the papers. Catchwords: EQUITY – equitable estoppel – proprietary estoppel – cross-claim – oral promise – father deceased – mother incapacitated – successsorship – whether personal equity enforceable against mother – credibility of witnesses – whether promise made – reliance – whether departure from promise would be unconscionable – significance of terms of wills on non-testamentary disposition – constructive trust – alternative relief – costs – orders Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Bofinger v Kingsway Group Limited (2009) 239 CLR 269; [2009] HCA 44 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Equititrust Ltd v Franks (2009) 258 ALR 388; [2009] NSWCA 128 Evans v Braddock [2015] NSWSC 249 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Farah Construction Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Hampson v Hampson (2010) 5 ASTLR 116; [2010] NSWCA 359 Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Category: Principal judgment Parties: Michael Awad (Cross-Claimant) Nouhad Awad by her tutor Zouha Habib (First Cross-Defendant) Arze Awad (Second Cross-Defendant) Representation: Counsel: P R Glissan (Cross-Claimant) J D Williams (First Cross-Defendant )