Minassian v Minassian [2010] NSWSC 708

Minassian v Minassian [2010] NSWSC 708

George failed to establish to the required standard that the 1980 agreement created an express trust on the terms alleged, either in writing or orally; the evidence did not prove a common intention or detrimental reliance necessary for a constructive trust; and contributions made by Mr and Mrs Minas fell within the presumption of advancement, which was not rebutted. Accordingly, no beneficial interest arose in their favour, and Elie is entitled to possession of the property.

Jurisdiction
Australia
Judgment Date
06 July 2010
Procedural Posture
Equity Proceeding / Judgment After Final Hearing
Outcome
Proceedings dismissed with costs; cross-claim for possession upheld.
Legal Topics
['express Trusts' 'resulting Trusts' 'constructive Trusts' 'statutory Requirements for Trusts' 'lost Documents' 'admissions as to Contents of Documents' 'requirements of Writing' 'presumption of Advancement' 'proof of Trust' 'withdrawal of Caveat' 'possession Orders']
['trust Law' 'property Law' 'equity Law' 'evidence Law'] ['express Trusts' 'resulting Trusts' 'constructive Trusts' 'statutory Requirements for Trusts' 'lost Documents' 'admissions as to Contents of Documents' 'requirements of Writing' 'presumption of Advancement' 'proof of Trust' 'withdrawal of Caveat' 'possession Orders']

Case Brief

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Procedural Posture

Equity Proceeding / Judgment After Final Hearing

Legal Issues

  1. 1 ['Whether an express written trust was created in respect of the Carlingford property by the 1980 agreement' 'Whether an express oral trust existed' 'Whether a constructive trust arose based on common intention and detrimental reliance' 'Whether a resulting trust arises from contributions by Mr and Mrs Minas' 'Admissibility and weight of secondary evidence and admissions as to the contents of the lost 1980 agreement' 'Whether the caveat should be withdrawn and possession granted']

Ratio Decidendi

George failed to establish to the required standard that the 1980 agreement created an express trust on the terms alleged, either in writing or orally; the evidence did not prove a common intention or detrimental reliance necessary for a constructive trust; and contributions made by Mr and Mrs Minas fell within the presumption of advancement, which was not rebutted. Accordingly, no beneficial interest arose in their favour, and Elie is entitled to possession of the property.

Court Disposition

Proceedings dismissed with costs; cross-claim for possession upheld.

Orders

  • ['The proceedings be dismissed with costs.' 'The order made on 21 October 2008 extending the operation of caveat number Y951369 be vacated.' 'The plaintiff forthwith withdraw caveat number Y951369.' 'Judgment for the cross-claimant for possession of the Carlingford property.' 'Leave to the cross-claimant to issue a...