Ibrahim v Ibrahim

1. [1]

   Mr Mohsen Ibrahim, the plaintiff, and Ms Amal Ibrahim, the defendant, were formerly married in the late 1970s. In 1982, they divorced, but reconciled by 1990 and, in around that year, together purchased lot 4 in Deposited Plan 21298 in Chester Hill (Property). They are registered on title as joint tenants.

2. [2]

   In about 2017, Mr Ibrahim moved out of the Property. Ms Ibrahim continues to live there. In 2019, Mr Ibrahim remarried. He now wishes to sell the Property and to divide the net proceeds of sale in equal shares between the parties. He has sought orders pursuant to s 66G of the Conveyancing Act 1919 (NSW), appointing trustees for sale.

3. [3]

   Ms Ibrahim, who appeared as a litigant in person throughout the proceedings, resists the sale.

4. [4]

   The only issues to be decided are:

   1. (1)

      whether the joint tenancy has been severed;

   2. (2)

      whether Ms Ibrahim has persuaded the Court that the s 66G orders ought not be made as a matter of discretion; and

   3. (3)

      the appropriate form of orders, including the identity of the trustees and whether the plaintiff’s costs ought to be paid from the proceeds of sale.

Court’s obligations to a litigant in person

1. [5]

   As a preliminary matter, I note that I made known to the parties the Court’s obligations when a self-represented party appears, namely that, while I would explain the process, procedure and what each party was required to do to satisfy the legal tests, the Court must maintain impartiality: see eg Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep), where Samuels JA stated:

2. [6]

   A pre-trial directions hearing was held on 11 November 2022. At that hearing, Ms Ibrahim indicated that she was comfortable speaking and reading English without the aid of an interpreter, and that she understood that what was in dispute was only the Property and whether an order should be made that it be sold. She also informed the Court that she would represent herself at the final hearing with the assistance and support of her daughter, who also assisted her at the pre-trial directions hearing and in preparing her affidavit. I note that Ms Ibrahim did say in cross-examination that she had approached a “government lawyer” and another lawyer when she was served with the Summons, and that the government lawyer “told me to go to Court”.

3. [7]

   When the hearing commenced, the procedure of the hearing was explained to Ms Ibrahim, and she acknowledged that she understood. At no time did counsel for the plaintiff seek to amend or add to any direction or explanation provided by the Court to Ms Ibrahim.

4. [8]

   Ms Ibrahim was assisted in Court by her brother, Mr Ali Khalil, with the consent of the plaintiff. Mr Khalil made some submissions on Ms Ibrahim’s behalf and asked some questions in cross-examination of Mr Ibrahim, who gave evidence with the assistance of an interpreter. Two of the parties’ daughters also supported her in Court. Ms Ibrahim also prepared three objections to Mr Ibrahim’s evidence.

5. [9]

   In the week before the hearing, the Court directed the plaintiff to provide Ms Ibrahim with copies of section 66G and the authorities upon which he relied. At the hearing, Ms Ibrahim acknowledged that she had received those documents. She had also been provided with a hard copy of the Court Book.

6. [10]

   Ms Ibrahim indicated she understood that (as the party opposing the sale) she bore the onus of dissuading the Court from ordering a sale of the Property: see Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685 at 14,701 (Santow J).

7. [11]

   While Mr Khalil submitted towards the end of the hearing that he did not consider that Ms Ibrahim understood the legal process on foot, the Court gave Ms Ibrahim opportunities to ask any questions throughout the hearing and Ms Ibrahim never indicated to the Court that she lacked any understanding. She was given time during the hearing to discuss matters with her daughters and Mr Khalil. At no point in time did Ms Ibrahim indicate to the Court that she did not understand or that she wanted any explanation.

8. [12]

   At the hearing, Ms Ibrahim was asked by counsel for the plaintiff whether she had difficulties with understanding English. Her response was “No, I understand.” When she expressed some difficulty understanding questions in cross-examination, I informed her that she could indicate that she did not understand and request counsel to ask the question in a different way.

Principles concerning s 66G

1. [13]

   Section 66G(1) empowers the Court to appoint trustees for sale of real property where:

   1. (1)

      the property is “held in co-ownership”; and

   2. (2)

      one of the co-owners applies for the order.

2. [14]

   “Co-ownership”, as defined in s 66F, includes ownership in equity in possession by two or more persons as joint tenants. “Co-owner” is defined to have a corresponding meaning. It is clear that the parties are “co-owners” and, therefore, the s 66G orders ought to be made unless there is a reason against the Court exercising its discretion to do so.

3. [15]

   The principles concerning the operation of s 66G are well known: see, for example, the summary by Black J in Pascoe v Dyason [2011] NSWSC 1217, at [5]-[8]:

4. [16]

   As noted by Black J, there is no general jurisdiction to refuse to grant such an order on the basis of hardship or unfairness: Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 at [36] (Tobias AJA, with whom Bergin CJ in Eq agreed).

Ms Ibrahim’s position

1. [17]

   Ms Ibrahim is the mother of six, now adult, children. The plaintiff is their father. She describes her occupation as “homemaker”.

2. [18]

   There appears to be no dispute that the Property was purchased by both Mr and Ms Ibrahim with cash and a loan. The loan was in the name of both parties and was paid off in the early 2000s while they were living together. There was a factual dispute as to who had contributed what to the mortgage payments, but there was insufficient detail to allow me to determine that issue, had it been relevant.

3. [19]

   In December 2010, Mr Ibrahim purchased a property at Bass Hill in his own name for $420,000 (Bass Hill Property). Westpac records demonstrate that, by October 2013, he owed $308,954.72 on the mortgage for that property. His evidence was that he still has a mortgage over that property. Ms Ibrahim’s evidence was that the Bass Hill Property was purchased “together” as an investment property. She also asserted that she had assisted by saving money which was then used towards the purchase of that property. However, there was insufficient evidence to make a determination on that issue, had it been relevant.

4. [20]

   Ms Ibrahim’s affidavit includes the following:

5. [21]

   It is understandable that Ms Ibrahim feels emotional in relation to Mr Ibrahim’s sole ownership of the Bass Hill property; Mr Ibrahim lives in it and is seeking the sale of the Property in which she lives and is seeking 50% of the proceeds of sale. Mr Khalil submitted:

6. [22]

   However, as explained to Ms Ibrahim, this case only concerns the Property, and I have not been asked to determine the circumstances of the purchase of the Bass Hill property and whether Ms Ibrahim has any beneficial interest in it or any rent obtained by Mr Ibrahim over the years while he was living in the Property.

7. [23]

   Mr Robinson, counsel for the plaintiff, candidly submitted to the Court:

8. [24]

   Ms Ibrahim seems to have understood this:

9. [25]

   Ms Ibrahim appears to have been aware of Mr Ibrahim’s desire to sell the Property since September 2018, when Mr Ibrahim’s solicitor wrote to her to indicate that if an agreement was not reached, Mr Ibrahim would apply to sell the Property and each party would receive 50% of the proceeds, and attached a copy of the draft Summons. Ms Ibrahim did not respond to the letter.

10. [26]

    Mr Ibrahim’s solicitor also contacted Ms Ibrahim in September 2021 to seek consent for a sale of the Property. There was also no response to that letter.

11. [27]

    However, she has not sought orders from the Federal Circuit and Family Court of Australia under the Family Law Act 1975 (Cth) or the Property (Relationships) Act 1984 (NSW) in relation to any rights to assets of the relationship with Mr Ibrahim. No such application has been foreshadowed. Even if it had been foreshadowed, that would not necessarily mean a stay of this judgment would be granted: Grizonic v Suttor [2004] NSWSC 137.

12. [28]

    Ms Ibrahim’s current proprietary interest in the Property is as a joint tenant. Such interest could only be altered if she asserted a contractual or fiduciary relationship existed between the parties concerning the Property, which she did not.

13. [29]

    When Mr Khalil suggested that there was some agreement between the Ibrahims as to who would get to keep which house, I explained to him and Ms Ibrahim that there was nothing in her affidavit concerning an agreement, notwithstanding that she may have had thoughts about the situation. Ms Ibrahim explained by way of submission:

14. [30]

    Therefore, I am not satisfied that Ms Ibrahim has raised any issue in the form of an estoppel or binding agreement that would stand in the way of trustees for sale being appointed. In the circumstances, there is no ground for the exercise of the discretion to refuse the order sought: McDonald v Ellis [2018] NSWSC 278 at [8]-[9] (Darke J).

15. [31]

    Mr Khalil stated that an order for sale would render homeless Ms Ibrahim and one of her daughters and grandchildren who live with her at the Property. There was no evidence to that effect in Ms Ibrahim’s affidavit; even if accepted, it is not relevant to the discretion to make s 66G orders.

16. [32]

    However, Ms Ibrahim is entitled to contribution for money she has expended on rates. The relevant principle was expressed in Forgeard v Shanahan (1994) 35 NSWLR 206 at 224 (Meagher JA; Mahoney JA agreeing):

17. [33]

    Ms Ibrahim’s evidence was that she has paid all the council rates, and other charges from 2014 to date. While she has not filed a cross-summons seeking such relief, I consider her evidence makes plain that she claims she has made these payments and Mr Ibrahim has not disputed such a claim, and it does not take him by surprise. Mr Robinson accepted he had no evidence to suggest Mr Ibrahim had paid the rates while he was away from the Property or since 2017. Mr Robinson did not wish to be heard against an adjustment for such money as Ms Ibrahim has paid out.

18. [34]

    I consider it appropriate to make an order that the trustees take an account of the amount Ms Ibrahim can demonstrate to their reasonable satisfaction that she has spent, and for 50% of that sum to be deducted from Mr Ibrahim’s share of the proceeds of sale and paid to her.

19. [35]

    Ms Ibrahim also complains that she has paid for “all maintenance” and adduced evidence of receipts for various maintenance bills. However, no allowance will be made for a co-owner who has carried out repairs and maintenance: see eg Leigh v Dickerson [1881-85] All ER Rep 1099.

20. [36]

    While she did take issue with Mr Ibrahim’s statement that he had paid for renovations carried out in 2015 and tendered copies of receipts without objection from Mr Ibrahim to demonstrate she had paid for works, she did so to demonstrate that she has been paying for the Property, rather than seeking an order for the value of the improvements. Had she sought such an order, then Mr Ibrahim may have been entitled to seek an offset of a nominal sum for occupation rent: see eg Callow v Rupchev [2009] NSWCA 148.

Has the joint tenancy been severed?

1. [37]

   Mr Ibrahim submitted that the Court ought to find that the joint tenancy was severed through the parties’ conduct, and therefore it is possible to make orders as to the distribution of the net proceeds of sale in a 50:50 proportion.

2. [38]

   In Brendan Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co), the author observed at [6.490] (citations omitted):

3. [39]

   There has been no formal severance of the joint tenancy pursuant to s 97 of the Real Property Act 1900 (NSW). Equity will regard a joint tenancy as having been severed where there is agreement between the joint tenants to going forward as tenants in common: Wright v Gibbons (1949) 78 CLR 313 at 322 (Latham CJ). In finding an agreement it is appropriate to consider the conduct of the parties and whether they treated themselves as joint tenants or tenants in common. It is not necessary that the parties understand what joint tenancy or severance is, merely that they have a mutual intention that the right of survivorship is not to apply, and they intended that they would be entitled to separate shares of the proceeds of sale if the property were sold: see eg Fenato v Antonello [2006] NSWSC 763 at [21] (Campbell J). It is possible that a joint tenancy is severed where an intimate relationship comes to an end and the parties choose to informally divide their assets: see eg Scott v Scott [2009] NSWSC 567 at [102] (Ward J, as the President then was). However, the particular facts in each case must be considered, and the mere fact that Mr Ibrahim moved out of the Property in 2017 does not, in itself, suggest that they agreed to divide assets once and for all. For instance, it is possible to envisage that a joint tenant may move out of the family home for a time but later reconcile with the other joint tenant.

4. [40]

   Mr Ibrahim sought a finding that the parties had severed the joint tenancy by reason of two attempts or discussions about selling the Property.

5. [41]

   First, in 2015, Ms Ibrahim appointed her sister as real estate agent to sell the Property. Ms Ibrahim stated that the appointment of her sister was with Mr Ibrahim’s consent and agreement, which Mr Ibrahim denied. Her sister did not give evidence at the hearing, nor was she asked to be available. However, it is not necessary to decide this contested fact, because, even if I accepted Mr Ibrahim’s version of the matters above, I am not persuaded that it demonstrates that the parties acted in a manner such that an inference of severance should be drawn. Ms Ibrahim’s position was that the Property was a “family home”, which is more consistent with an intention to hold as joint tenants. To the extent Ms Ibrahim wanted any sale of the Property, her evidence was replete with references to joint decision-making with Mr Ibrahim as to sale in order to buy a property in another suburb, but not sale in order to facilitate Mr Ibrahim’s sole purchase of a farm:

6. [42]

   Secondly, in 2016, Mr Ibrahim discussed raising money against the Property or selling the Property. Ms Ibrahim agreed that they discussed selling the Property and the Bass Hill property to buy a better family home. Mr Ibrahim brought a potential buyer to the Property, but Ms Ibrahim did not agree to sell at that time. On the other hand, Mr Ibrahim’s evidence was that the decision to sell the Property was his sole intention and that Ms Ibrahim said to him words to the effect of, “If you want, sell the house and give me my share” in early 2016, which led him to seek a buyer for the Property.

7. [43]

   I am not persuaded that either separately or together those attempted sales demonstrate an agreement to sever the joint tenancy.

8. [44]

   Mr Robinson submitted that, should I not be persuaded the joint tenancy had been severed, a different form of final orders would be required than those originally sought, particularly as the terms of distribution between the parties would need to be reconfigured, and it may be that one of the parties can unilaterally sever the joint tenancy pursuant to s 97 of the Real Property Act 1900 (NSW) as a precondition to any sale of the Property.

Trustees

1. [45]

   Mr Ibrahim proposed Mr Andrew Paul Bobb, solicitor, and Mr Sayed Khedr, solicitor, as trustees. Both consent to such appointment. Ms Ibrahim did not raise any objection to them being appointed, should an order for sale be made.

2. [46]

   I am satisfied that they are fit and proper persons to act as trustees for sale and that they have the necessary skill and experience to do so. I am satisfied that they ought to be paid for their role at their disclosed hourly rates, which are reasonable and capped at $10,000.

Costs

1. [47]

   As to costs, the plaintiff seeks an order that his costs of the Summons be paid out of the net proceeds of sale prior to any distribution amongst the co-owners. That seems to me to be appropriate and in accordance with established principles in relation to s 66G proceedings: see Kardos v Sarbutt (No 2) [2006] NSWCA 206 at [28] (Brereton J, with whom Basten JA and Hunt AJA agreed).

Orders

1. [48]

   In the circumstances, I will ask the parties to seek to agree on proposed short minutes of order giving effect to this judgment.

2. [49]

   The Court orders that:

   1. (1)

      The parties are to confer with a view to agreeing on orders giving effect to this judgment.

   2. (2)

      If they are unable to agree, each party is to provide their version of final orders together with no more than 3 pages of submissions to the Associate to Peden J by 3 February 2023.

   3. (3)

      Liberty to apply on 3 days’ notice.