Djmal v Cemal & Ors [2015] NSWSC 1125

Djmal v Cemal & Ors [2015] NSWSC 1125

Because the plaintiff wholly funded the acquisition of the Putty land and intended any advancement to the first and second defendants only on the condition that the land be used to build a house in which she and her daughter could live, the failure of that condition rebutted the presumption of advancement and the defendants held the land on resulting trust for her. Alternatively, the failed joint endeavour made it unconscionable for the defendants to retain the land, giving rise to a constructive trust. The $308,000 deposited into the defendants' specially opened and segregated bank account was paid for the specific purpose of constructing a house on the Putty land and did not become part...

Jurisdiction
Australia
Judgment Date
06 August 2015
Procedural Posture
Equity Division Proceedings Seeking Declarations of Trust, Transfer of Land, Payment of Bank Account Funds, Equitable Compensation And, Alternatively, Money Had and Received / Principal Judgment; First and Second Defendants Did Not Defend and Final Orders Were Made
Outcome
Judgment for the plaintiff. The first and second defendants were declared to hold the Putty land on trust for the plaintiff, ordered to transfer it, and ordered to pay judgment of $215,969.53 inclusive of pre-judgment interest and costs. The plaintiff was declared entitled to the credit balance and accrued interest...
Legal Topics
['resulting Trust' 'presumption of Advancement' 'constructive Trust' 'failure of Joint Endeavour' 'quistclose Trust' 'breach of Trust' 'equitable Compensation' 'pre Judgment Interest']
['equity' 'trusts' 'equitable Remedies'] ['resulting Trust' 'presumption of Advancement' 'constructive Trust' 'failure of Joint Endeavour' 'quistclose Trust' 'breach of Trust' 'equitable Compensation' 'pre Judgment Interest']

Case Brief

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Procedural Posture

Equity Division Proceedings Seeking Declarations of Trust, Transfer of Land, Payment of Bank Account Funds, Equitable Compensation And, Alternatively, Money Had and Received / Principal Judgment; First and Second Defendants Did Not Defend and Final Orders Were Made

Legal Issues

  1. 1 ['Whether the first and second defendants held the Putty Road land on resulting trust for the plaintiff despite the presumption of advancement.' "Whether, alternatively, a constructive trust arose because the parties' joint endeavour failed." "Whether the $308,000 deposited into the National Australia Bank account in the first and second defendants' names was held on trust for the plaintiff." 'Whether the first and second defendants were liable to restore withdrawals made from the bank account in breach of trust and to pay equitable compensation with interest.']

Ratio Decidendi

Because the plaintiff wholly funded the acquisition of the Putty land and intended any advancement to the first and second defendants only on the condition that the land be used to build a house in which she and her daughter could live, the failure of that condition rebutted the presumption of advancement and the defendants held the land on resulting trust for her. Alternatively, the failed joint endeavour made it unconscionable for the defendants to retain the land, giving rise to a constructive trust. The $308,000 deposited into the defendants' specially opened and segregated bank account was paid for the specific purpose of constructing a house on the Putty land and did not become part...

Court Disposition

Judgment for the plaintiff. The first and second defendants were declared to hold the Putty land on trust for the plaintiff, ordered to transfer it, and ordered to pay judgment of $215,969.53 inclusive of pre-judgment interest and costs. The plaintiff was declared entitled to the credit balance and accrued interest...

Orders

  • ['Declare that the first and second defendants hold the property at [xxx] Putty Road, Putty NSW 2330 being the land in folio identifier [xxx] on trust for the plaintiff absolutely.' 'Order that within 7 days of their being given notice of these orders, the first and second defendants execute a transfer in...