Australia, May 27 -- New South Wales Land and Environment Court issued text of the following judgement on April 28:

1. These reasons deal with costs and certain other issues raised by the first defendant following my substantive decision in this matter in Erem v Moussa [2024] NSWSC 641 (Judgment) on 15 October 2024 (abbreviations adopted in the Judgment will be adopted in this judgment).

2. In the Judgment I concluded that: (a) the first defendant had succeeded in propounding the 1993 will which was the deceased's only valid will, and probate of that will should be granted to the NSW Trustee and Guardian; (b) the plaintiff had succeeded in his claim that the defendants were estopped by the conduct of the deceased from denying that the plaintiff was entitled to the deceased's half share in the McPherson St property; and (c) the plaintiff had failed on his resulting trust and family provision claims.

3. Following submissions from the parties as to the form of final orders, the court made orders on 19 November 2024 including the following:

1. ORDER that probate of the will dated 30 June 1993 of the late Mary Moussa (1993 Will) be granted in solemn form to the NSW Trustee and Guardian.

2. ORDER that the proceedings be remitted to the Registrar to complete the grant referred to in order 1 above.

3. DECLARE that the defendants are estopped by the conduct of the late Mary Moussa from denying that the plaintiff is the legal and beneficial owner of the real property known as 6 McPherson Street, Carlton, New South Wales (McPherson St property).

4. DECLARE that the NSW Trustee and Guardian, as executor, as from 23 October 2015 held, and holds, any and all of the right, title and interest of the late Mary Moussa in the McPherson St property on constructive trust for the plaintiff.

5. ORDER the NSW Trustee and Guardian as executor to do all such things and execute all such documents as are necessary to transfer to or vest in the plaintiff any and all of right title and interest registered in the name of the late Mary Moussa and/or in the name of the NSW Trustee and Guardian as executor or trustee in the McPherson St property within 28 days of probate in solemn form of the 1993 Will being granted to the NSW Trustee and Guardian.

6. ORDER the plaintiff to vacate the deceased's unit at 14/22-26 Garfield St Carlton NSW (Garfield St property) and provide vacant possession thereof to the NSW Trustee and Guardian within 6 weeks of any written request by the NSW Trustee and Guardian to do so.

4. The declaration in order 4 that the constructive trust arose as from 23 October 2015 (the date of death of the deceased) reflects the principle that where proprietary estoppel is established and detrimental reliance upon the relevant promise gives rise to a constructive trust, the constructive trust comes into existence at the time of the conduct which gave rise to the trust: McNab v Graham (2017) 53 VR 311; [2017] VSCA 352 at [102], [107]-[109] per Tate JA (Santamaria and Keogh JJA agreeing). In this case, that was the date of death of the deceased.

5. I also made orders for the parties to file and serve submissions and any evidence relied on in relation to: (a) costs, (b) the occupancy fee payable by the plaintiff until he vacates possession of the Garfield St property, (c) whether the plaintiff is required to account to the deceased's estate for the value of any Telstra shares and superannuation of the deceased and the form of the appropriate orders in that regard, and (d) the entitlement to the rent earned on the McPherson St property since the deceased's death (to the extent that this issue is not dealt with by order 4 above). The issues referred to in (b), (c) and (d) were raised by the first defendant at a directions hearing for the making of the final orders and whether they are properly raised is contested by the plaintiff, as explained below.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1967abe7bf4243270398d0b1)

Disclaimer: Curated by HT Syndication.