Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044

Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044

The Court found that the first defendant, Mr Ak, made promises to the plaintiff, Ms Ak-Tankiz, that she would receive half of the family home upon his death, and the plaintiff relied on these promises by making substantial financial and non-financial contributions over many years. These promises created a common intention constructive trust as to half of the beneficial interest in the property. The plaintiff was also entitled, under s 20 of the Property (Relationships) Act 1984 (NSW), to an immediate adjustment: granting her half the beneficial interest, subject to a charge for her proportion of the mortgage.

Parties
Plaintiff: Aytul Ak-Tankiz; First Defendant: Ferat Ak; Second Defendant: Ramazan Ak
Jurisdiction
Australia
Judgment Date
04 August 2014
Procedural Posture
Civil / Final Judgment
Outcome
Plaintiff partially successful; declarations and adjustment of interests granted as set out in orders.
Legal Topics
Constructive Trust, Common Intention Trust, Domestic Relationships, Property Adjustment, Property (relationships) Act 1984 (nsw), Joint Endeavour Trust
Equity Family Law Constructive Trust Common Intention Trust Domestic Relationships Property Adjustment Property (relationships) Act 1984 (nsw) Joint Endeavour Trust

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Parties

Aytul Ak-Tankiz

Plaintiff

Ferat Ak

First Defendant

Ramazan Ak

Second Defendant

Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 Whether the first defendant holds the property at 8 Yeend Street Merrylands on constructive trust for the plaintiff
  2. 2 Whether promises made by the first defendant in relation to the property entitle the plaintiff to a beneficial interest
  3. 3 Whether the plaintiff is entitled to adjustment of property interests under s 20 of the Property (Relationships) Act 1984 (NSW)

Ratio Decidendi

The Court found that the first defendant, Mr Ak, made promises to the plaintiff, Ms Ak-Tankiz, that she would receive half of the family home upon his death, and the plaintiff relied on these promises by making substantial financial and non-financial contributions over many years. These promises created a common intention constructive trust as to half of the beneficial interest in the property. The plaintiff was also entitled, under s 20 of the Property (Relationships) Act 1984 (NSW), to an immediate adjustment: granting her half the beneficial interest, subject to a charge for her proportion of the mortgage.

Court Disposition

Plaintiff partially successful; declarations and adjustment of interests granted as set out in orders.

Orders

  • Declare that the first defendant holds the property at 8 Yeend Street Merrylands on a constructive trust as to half of the beneficial interest in favour of the plaintiff, vesting upon the death of the first defendant.
  • Declare that the plaintiff's interest is subject to a charge in favour of the first defendant to secure $25,000 towards the mortgage.