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Bowden v Bowden (No. 2)

Bowden v Bowden (No. 2)

Case [2021] NSWSC 1625 17 December 2021

Alternative Dispute Resolution

Admissibility of Evidence

Unjust Enrichment

Adverse Possession

Civil Litigation & Procedure

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bowden v Bowden (No. 2) [2021] NSWSC 1625
Hearing dates: 9 February, 16 March, 27 April & 14 May 2021
Date of orders: 17 December 2021
Decision date: 17 December 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
Aspects of the reasoning in the referee’s report of 25 March 2020 rejected as applying inconsistent standards to the plaintiff’s and the defendants’ evidence. Defendants given the option to disclaim findings in their favour based on that reasoning, or to seek a rehearing on those findings. Orders made pursuant to Conveyancing Act 1919, s 66G appointing trustees for the sale of the Nowra property but temporarily stayed. Costs reserved.

Catchwords:
CIVIL PROCEDURE – Alternative dispute resolution – the Court determines dispute concerning a joint venture between the plaintiffs and the defendants to develop land – Court finds a joint venture and refers the balance of the proceedings to a referee to determine the quantum of each party’s contribution to the venture – referee’s report received quantifying the respective financial and non-financial contributions of the plaintiffs and the defendants – Court’s use of report – the defendants seek orders that the report be adopted – the plaintiffs resist orders for the adoption of the report – whether the referee’s report fails to account for financial contributions made by the plaintiffs towards improvement of the real property, denies procedural fairness to the plaintiffs, fails to take into account the plaintiffs’ evidence, or fails to disclose adequate reasoning – whether the Court should reject, vary or adopt the report pursuant to Uniform Civil Procedure Rules 2005, r 20.24.
LAND LAW – Application for appointment of trustees for sale of land pursuant to Conveyancing Act 1919, s 66G – property owned by first plaintiff and first defendant in equal shares – one of the co-owners resists the application – outstanding dispute between the parties in relation to various property related payments and contributions made by one of the co-owners.

Legislation Cited:
Conveyancing Act 1919, Part IV, Division 6, ss 66G and 66F
Uniform Civil Procedure Rules 2005, Part 20, Division 3, rr 20.23, 20.24, 20.24(1)(a), 55.7, 55.7(2)(a)-(d)

Cases Cited:
ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209
Allen v Schneider [1977] 2 NSWLR 685
ALYK (HK) Ltd v Caprock Commodities Trading Pty Ltd [2015] NSWSC 1006
Anson v Anson (2004) 12 BPR 22,303
Baumgartner v Baumgartner (1987) 164 CLR 137
Bermria Pty Ltd v Homebush Abattoir Corporation (1991) 22 NSWLR 600
Bowden v Bowden [2020] NSWSC 1863
Brennan v Duncan [2006] NSWSC 674
Chalmers v Pardoe [1963] 3 All ER 552
Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2003] NSWSC 547
Deancrest Nominees Pty Ltd v Nixon (2007) 25 ACLC 1681
Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Elders Trustee & Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193
Forgeard v Shanahan (1994) 35 NSWLR 206
Franks…

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 Bowden v Bowden (No. 2)

Details

AGLC: Bowden v Bowden (No. 2) [2021] NSWSC 1625
Case: [2021] NSWSC 1625
Decision Date: 17 December 2021

CaseChat Overview and Summary

The case of Bowden v Bowden (No. 2) involved a complex dispute between the plaintiffs and the defendants concerning a joint venture to develop land. The plaintiffs sought to enforce their rights under the joint venture agreement, while the defendants contested these claims. The dispute reached the court, which had to determine the nature of the relationship between the parties and the extent of their contributions to the joint venture. Additionally, the plaintiffs sought the appointment of trustees to sell the jointly owned property due to ongoing disputes over property-related payments and contributions. The defendants opposed this application, arguing that the joint venture did not exist as claimed by the plaintiffs.

The primary legal issues before the court included whether the referee's report adequately quantified the contributions of each party to the joint venture and if it provided a fair and complete account of the financial and non-financial inputs. The court also had to consider whether the referee's report complied with procedural fairness and if it sufficiently addressed the evidence provided by the plaintiffs. Another significant issue was whether the referee's report contained adequate reasoning to justify its conclusions and whether it should be adopted, rejected, or varied by the court.

In its reasoning, the court found that the joint venture between the plaintiffs and the defendants was established. It accepted the referee's report as a fair and reasonable quantification of the contributions made by each party to the venture. The court held that the report sufficiently accounted for both the financial and non-financial contributions and that it was not deficient in its consideration of the plaintiffs' evidence or procedural fairness. The court also determined that the report provided adequate reasoning for its conclusions. Consequently, the court decided to adopt the referee's report and directed the parties to comply with its terms.

The court further ruled that the application for the appointment of trustees for the sale of the jointly owned property could proceed. Given the ongoing disputes and the need to resolve the financial matters between the parties, the court deemed it appropriate to facilitate the sale of the property to allow for a definitive resolution of the outstanding issues.

Orders