Bowden v Bowden (No. 3) - [2022] NSWSC 162

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bowden v Bowden (No. 3) [2022] NSWSC 162
Hearing dates: 23 February 2022
Date of orders: 24 February 2022
Decision date: 24 February 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Referee’s report adopted with variation in relation to the non-financial claims of the defendant/cross claimant. Grant a stay on the appointment of trustees for sale to a near-term future date sufficient to give the plaintiff an opportunity to exercise any rights of appeal. Order for possession made in favour of the trustees for sale. Writ for possession not to be executed before a nominated future date. Each party ordered to pay their own costs of the proceedings before Pembroke J. An order for costs made that the plaintiffs pay 80% of the Defendants/Cross Claimants’ costs of the balance of the proceedings. Directions made for fixing a specified gross sum instead of assessed costs.

Catchwords:
CIVIL PROCEDURE – alternative dispute resolution – Court referral to a referee – Uniform Civil Procedure Rules 2005, r 20 – proceedings between co-owners referred to a referee to determine their respective financial and non-financial contributions to the property to determine their final interests in it, varying those interests from a baseline of equal ownership – the defendants seek orders that the referee's report be adopted – the plaintiffs resist the making of such an order – previous judgment indicating that the report will be adopted but could be varied and the defendants were given options as to which course they wish to take in relation to the adoption and variation of the report – defendants declare an option – upon what terms should the report be adopted – what variation should be made to the report.
TRUSTEES FOR SALE – co-owners of land – one co-owner seeks upon the trustees for sale – whether the trustees for sale should be appointed – one co-owner seeks to buy out the other co-owner – whether the appointment of trustees for sale should be further stayed.

Legislation Cited:
Civil Procedure Act 2005, ss 56,57, 98(4)(c)
Conveyancing Act 1919, s 66G
Uniform Civil Procedure Rules 2005, rr 20, r 20.24(1)(a)

Cases Cited:
Bowden v Bowden (unreported, 10 April 2019, Pembroke J)
Bowden v Bowden [2020] NSWSC 1863
Bowden v Bowden (No. 2) [2021] NSWSC 1625

Category: Consequential orders
Parties: First Plaintiff: Kevin Alwyn Bowden
First Defendant: Julie Gaye Bowden
Second Defendant: Ian Bowden
Representation:
Counsel:
First and Second Defendant: D. Eardley
Solicitors:
Plaintiff: in person, leave granted for Mr Phillip Bowden to assist
First and Second Defendant: Phillip John Carey

File Number(s): 2017/376872
Publication restriction: No.

JUDGMENT

This is the Court’s fourth judgment in these proceedings. It deals with issues of the final form of orders for the adoption of a referee’s report, the lifting of a stay on the appointment of trustees for the sale of jointly owned land, and an order for possession of the land.
The trial judge, Pembroke J, gave the…

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. 3)

Details

AGLC: Bowden v Bowden (No. 3) [2022] NSWSC 162
Case: [2022] NSWSC 162
Decision Date: 24 February 2022

CaseChat Overview and Summary

The appeal before the court involved the parties Bowden and Bowden, who were co-owners of a property. The nature of the dispute was the determination of their respective financial and non-financial contributions to the property, which would inform the calculation of their final interests in it. This matter had previously been referred to a referee under the Uniform Civil Procedure Rules 2005, rule 20, to ascertain these contributions and interests. The defendants sought orders that the referee's report be adopted, while the plaintiffs resisted such an order. The previous judgment indicated that the report would be adopted but could be varied, and the defendants were provided with options regarding the adoption and variation of the report.

The legal issues before the court involved the terms upon which the referee's report should be adopted and the extent to which it should be varied. The court had to determine whether the report should be adopted as is or if any modifications were necessary, considering the previous judgment's indication that variations were possible. Additionally, the court needed to address the issue of whether trustees for sale should be appointed, given one co-owner's request to buy out the other. This involved a consideration of whether the appointment of trustees for sale should be further stayed, in light of the ongoing dispute over the property's division.

The court reasoned that the referee's report should be adopted with certain modifications. It found that the report should be based on a baseline of equal ownership, adjusted according to the contributions of each party. The court also determined that the appointment of trustees for sale should be stayed, allowing for further negotiations between the parties. The defendants' option to vary the report was considered, and the court outlined the terms and variations that should be applied to ensure a fair and just outcome for both parties. The final orders included the adoption of the referee's report with specified variations, and a stay on the appointment of trustees for sale pending further negotiation between the co-owners.

Orders