Sukkar v Sukkar [2019] NSWSC 691

Supreme Court New South Wales

Medium Neutral Citation: Sukkar v Sukkar [2019] NSWSC 691 Hearing dates: 15 – 17 April 2019 Date of orders: 11 June 2019 Decision date: 11 June 2019 Jurisdiction: Equity Before: Darke J Decision: Relief granted to first defendant pursuant to Contracts Review Act. Plaintiff's claim for appointment of trustees for sale dismissed. Catchwords: LAND LAW – co-ownership – statutory trust for sale – claim by the plaintiff under Conveyancing Act 1919 (NSW) s 66G(1) – where plaintiff is an "incumbrancer" within the definition of "co-owner" in s 66F(1) as the registered proprietor of a mortgage over the interest of the first defendant – appointment of trustees refused in circumstances where the mortgage is required to be discharged pursuant to the first defendant's cross-claim

CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – cross-claim by the first defendant to set aside contracts which include a deed of acknowledgement, loan agreement and mortgage – plaintiff and first defendant are son and mother respectively – plaintiff outlaid various amounts of money for the benefit of the first defendant over several years – where no binding agreement whereby first defendant obliged to repay monies to plaintiff – where the plaintiff sought to "confirm" legal relationship with the first defendant by entering into the contracts – contracts improvident from the first defendant's perspective – where first defendant entered into the contracts as a result of undue emotional pressure applied by the plaintiff – contracts held to be unjust Legislation Cited: Contracts Review Act 1980 (NSW), ss 7, 9, 19 Conveyancing Act 1919 (NSW), ss 66F, 66G Evidence Act 1995 (NSW), s 128 Cases Cited: Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 Australia & New Zealand Banking Group Ltd v Scott (1993) 6 BPR 97,446 Baltic Shipping Company v Dillon (1991) 22 NSWLR 1 Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482 Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Category: Principal judgment Parties: Marc Sukkar (Plaintiff/Cross Defendant) Rose Amanda Sukkar (First Defendant/Cross Claimant) Hamid Sukkar (Second Defendant) Representation: Counsel: Mr M W Young SC (Plaintiff/Cross Defendant) Mr A J L Bannon SC with Mr M Jaireth (First Defendant/Cross Claimant)