Ellie Abraham Barikhan v Vincenzo Francesco Cagnoni [2023] NSWSC 745

Ellie Abraham Barikhan v Vincenzo Francesco Cagnoni [2023] NSWSC 745

Plaintiffs' payment of $115,125.72 to facilitate the defendant's property purchase was intended as a loan, not as a contribution giving rise to a resulting trust, and thus Vince does not hold the properties on resulting trust for Ellie and George. Orders for repayment of secured and unsecured loans, including interest, and for judicial sale are appropriate.

Parties
First Plaintiff: Ellie Abraham Barikhan; Second Plaintiff: George Barikhan; First Defendant: Vincenzo Francesco Cagnoni; Second Defendant: ING Bank (Australia) Limited (ACN 000 893 292)
Jurisdiction
Australia
Judgment Date
30 June 2023
Procedural Posture
Principal Judgment / Final Orders and Directions
Outcome
Plaintiffs' claim for resulting trust dismissed; judgment entered for Ellie against Vince for loans and interest; orders for judicial sale and possession granted, subject to hearing from ING; proceedings otherwise dismissed.
Legal Topics
Resulting Trusts, Unregistered Second Mortgage, Judicial Sale, Interest Rate Interpretation, Proper Construction of Loan Deed
Equity Real Property Mortgages and Securities Contracts Resulting Trusts Unregistered Second Mortgage Judicial Sale Interest Rate Interpretation +1 more

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Parties

Ellie Abraham Barikhan

First Plaintiff

George Barikhan

Second Plaintiff

Vincenzo Francesco Cagnoni

First Defendant

ING Bank (Australia) Limited (ACN 000 893 292)

Second Defendant

Procedural Posture

Principal Judgment / Final Orders and Directions

Legal Issues

  1. 1 Whether a resulting trust arises from plaintiffs' contribution to property purchase
  2. 2 Proper construction of terms of deed of loan as to interest rate
  3. 3 Whether order for judicial sale is warranted and who should be appointed to effect sale

Ratio Decidendi

Plaintiffs' payment of $115,125.72 to facilitate the defendant's property purchase was intended as a loan, not as a contribution giving rise to a resulting trust, and thus Vince does not hold the properties on resulting trust for Ellie and George. Orders for repayment of secured and unsecured loans, including interest, and for judicial sale are appropriate.

Court Disposition

Plaintiffs' claim for resulting trust dismissed; judgment entered for Ellie against Vince for loans and interest; orders for judicial sale and possession granted, subject to hearing from ING; proceedings otherwise dismissed.

Orders

  • Judgment for Ellie against Vince for $150,000.00 plus contractual interest per deed of loan; post-judgment interest at same rate.
  • Judgment for Ellie against Vince for $20,000.00 (2017 loan) plus court interest; post-judgment interest per s 101 Civil Procedure Act 2005 (NSW).