Sampson in his Capacity as Trustee for the Bankrupt Estate of Tannous v Tannous [2022] FCA 1427

Sampson in his Capacity as Trustee for the Bankrupt Estate of Tannous v Tannous [2022] FCA 1427

The contemporaneous and subsequent documentary evidence establishes that the intention of Ms Chahin and Paul Tannous at the time of purchase was that both would be beneficial owners of the Punchbowl Property as tenants in common in equal shares. The respondent failed to discharge the burden to show that Paul Tannous held his interest on trust for her. No evidence supported a contrary intention that would rebut the presumption arising from their status as legal co-owners. Orders should therefore be made under s 66G of the Conveyancing Act 1919 (NSW) for trustees for sale, and the cross-claim is dismissed.

Parties
Applicant/cross Defendant: David Henry Sampson in his capacity as Trustee for the Bankrupt Estate of Paul Joe Tannous; Respondent/cross Claimant: Caroline Tannous (also referred to as Ms Caroline Chahin, née Tannous)
Jurisdiction
Australia
Judgment Date
30 November 2022
Procedural Posture
Application by Trustee in Bankruptcy and Cross Claim for Declaration of Trust / Final Judgment After Hearing
Outcome
Applicant's orders for the appointment of trustees of sale under s 66G Conveyancing Act granted; cross-claim dismissed.
Legal Topics
Statutory Trust for Sale, Section 66 G Applications, Beneficial Ownership in Land, Resulting Trust, Presumption of Advancement, Bankrupt Estate Administration
Trusts and Trustees Bankruptcy and Insolvency Property Law Statutory Trust for Sale Section 66 G Applications Beneficial Ownership in Land Resulting Trust Presumption of Advancement +1 more

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Parties

David Henry Sampson in his capacity as Trustee for the Bankrupt Estate of Paul Joe Tannous

Applicant/cross Defendant

Caroline Tannous (also referred to as Ms Caroline Chahin, née Tannous)

Respondent/cross Claimant

Procedural Posture

Application by Trustee in Bankruptcy and Cross Claim for Declaration of Trust / Final Judgment After Hearing

Legal Issues

  1. 1 Whether Paul Tannous held his share of the Punchbowl Property on trust for Caroline Tannous (Ms Chahin)
  2. 2 Whether orders under s 66G Conveyancing Act 1919 (NSW) for sale and appointment of trustees should be made
  3. 3 What was the intention of the parties regarding beneficial ownership at the time of purchase

Ratio Decidendi

The contemporaneous and subsequent documentary evidence establishes that the intention of Ms Chahin and Paul Tannous at the time of purchase was that both would be beneficial owners of the Punchbowl Property as tenants in common in equal shares. The respondent failed to discharge the burden to show that Paul Tannous held his interest on trust for her. No evidence supported a contrary intention that would rebut the presumption arising from their status as legal co-owners. Orders should therefore be made under s 66G of the Conveyancing Act 1919 (NSW) for trustees for sale, and the cross-claim is dismissed.

Court Disposition

Applicant's orders for the appointment of trustees of sale under s 66G Conveyancing Act granted; cross-claim dismissed.

Orders

  • David Henry Sampson and Maxwell William Prentice of BPS Recovery are appointed trustees of the land comprised in certificate of title folio identifier A/318725 at 11 Yarran Street, Punchbowl, NSW pursuant to section 66G of the Conveyancing Act 1919 (NSW).
  • The Punchbowl Property is vested in such trustees subject to any encumbrances affecting the entirety, but free from any encumbrances affecting any undivided share, to be held upon statutory trusts for sale under Division 6 of Part 4 of the Conveyancing Act.