Ball v Ball (No 2) - [2019] NSWSC 1242

Supreme Court

New South Wales

Medium Neutral Citation: Ball v Ball (No 2) [2019] NSWSC 1242
Hearing dates: 13 September 2019
Date of orders: 13 September 2019
Decision date: 13 September 2019
Jurisdiction: Equity
Before: Parker J
Decision:
Judgment for the plaintiff against the first defendant in the sum of $297,500 plus interest in the sum of $119,100.87.
Liberty granted to the plaintiff to file a garnishee order directed to the second defendant in respect of funds, including any interest accrued thereon, held on trust for the benefit of the first defendant.
The first defendant to pay the plaintiff’s costs of the application for judgment.
The proceedings otherwise be dismissed with no order as to costs.

Catchwords: ESTOPPEL — Proprietary estoppel — equitable compensation – where defendant required finance to fund his share of jointly acquired property and represented to mother that financier required both names on loan documentation – defendant changed locks and home subsequently sold by forced sale
– appropriate time to determine measure of relief – expectation disappointed when locks changed
depriving mother opportunity to continue live as co-owner – where no evidence adduced of value of property at that time – equitable compensation awarded in sum of half eventual net proceeds.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 39.36
Cases Cited: Evans v Evans [2011] NSWCA 92
Texts Cited: Nil.
Category: Principal judgment
Parties: Gloria Ruth Ball (Plaintiff)
Darren Mark Ball (First Defendant)
East Coast Law Pty Ltd trading as East Coast Conveyancing (Second Defendant)
Representation:
Counsel:
JRB Pearson (Plaintiff)

Solicitors:
Fowler Predny Solicitors (Plaintiff)
No appearance for defendant

File Number(s): 2017/386138
Publication restriction: Nil

Judgment – EX TEMPORE

Revised and reissued 23 September 2019

These proceedings concern a property at Morisset Park near Newcastle. In June this year, Henry J ordered that there be default judgment for the plaintiff against the first defendant with damages to be assessed: Ball v Ball (unpublished, 12 June 2019).
The plaintiff is the mother of the first defendant. The property in question was acquired by them as tenants in common in equal shares in 2007. The acquisition was undertaken with the assistance of a mortgage from GE Money. Repayments under the mortgage were not made in accordance with the lender's terms and the property was sold in November 2015.
After payment of expenses and of the debt owed to GE Money, the net proceeds were $159,000. Those moneys are held by the second defendant, a conveyancing firm, pending the outcome of these proceedings.
The plaintiff's claim is one of proprietary estoppel. Her evidence is that the property was acquired so that both she and the first defendant could live there.
At the time of the acquisition, the plaintiff owned a property of her own at Bonnells Bay. According to the plaintiff, it was agreed between her and the first defendant that she would sell that property and put the proceeds towards the property to be acquired in Morisset Park.
The first defendant also had a property of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ball v Ball (No 2)

Details

AGLC: Ball v Ball (No 2) [2019] NSWSC 1242
Case: [2019] NSWSC 1242
Decision Date: 13 September 2019

CaseChat Overview and Summary

In the case of Ball v Ball, the dispute was between the parties in relation to claims of proprietary estoppel and equitable compensation. The matter was heard in the Federal Circuit Court of Australia. The defendant had agreed to fund his share of a jointly acquired property, and represented to the plaintiff's mother that the financier required both names on the loan documentation. The defendant then changed the locks and the home was subsequently sold by forced sale. The mother claimed proprietary estoppel and equitable compensation.

The court was required to determine the appropriate time to measure the relief, and whether the expectation of the mother was disappointed when the locks were changed, depriving her of the opportunity to continue to live as a co-owner of the property. The court also had to determine whether there was any evidence adduced of the value of the property at that time, and if not, whether equitable compensation could be awarded. The court found that the expectation of the mother was disappointed when the locks were changed, and that there was no evidence of the value of the property at that time.

The court awarded equitable compensation in the sum of half of the eventual net proceeds of the property, as a measure of relief. The court found that the defendant had represented to the plaintiff's mother that the financier required both names on the loan documentation, and that the defendant had changed the locks, depriving the mother of the opportunity to continue to live as a co-owner of the property. The court held that the mother was entitled to equitable compensation, and awarded her half of the eventual net proceeds of the property.

Orders