New South Wales
Court of Appeal
CITATION: Callow v Rupchev [2009] NSWCA 148 HEARING DATE(S): 7 August 2008
JUDGMENT DATE:
17 June 2009JUDGMENT OF: Beazley JA at 1; Basten JA at 1; Handley AJA at 1 DECISION: (1) Grant leave to the applicant to appeal against the orders made in the Common Law Division on 16 November 2007;
(2) Allow the appeal in part and set aside the orders made in the Common Law Division;
(3) Declare that, as at the date of judgment in the Common Law Division, the proceeds of sale of the property at 21 Redgrave Avenue, Normanhurst, held in an interest bearing controlled money account with Goldrick Farrell Mullan, solicitors, being an amount of $172,141.49 together with interest on that amount, was held,
(a) as to one half share, for Mr Vladimir Rupchev;
(b) as to the other half share,
(i) as to an amount of $37,716, for Mr Vladimir Rupchev, and
(ii) as to the balance, for Ms Beverley Callow;
(c) as to such interest as had accrued at the date of distribution of the funds, for the respective parties in proportion to their entitlements set out above;
(4) Declare that Ms Callow is entitled to a payment from Mr Rupchev of such amount as was paid to him from the controlled money account in excess of his entitlement as set out above, together with interest thereon at the rate prescribed by Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) from the date on which it was disbursed to or at the direction of Mr Rupchev until paid by him to Ms Callow;
(5) Remit the matter to the Common Law Division for final orders (if not agreed) as to the amount of the payment due under order (4);
(6) Order that Ms Callow pay Mr Rupchev’s costs of the proceedings in the Common Law Division from 26 May 2006, assessed on the ordinary basis;
(7) Order that Mr Rupchev pay Ms Callow’s costs in this Court as a self-represented litigant;
(8) Grant Mr Rupchev a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the costs in this Court.CATCHWORDS: EQUITY – equitable remedies – notional occupation fee set off against claim for contribution from co-owner in respect of mortgage payments - REAL PROPERTY - estates and interests in land – co-owners – co-owners in a de facto relationship – breakdown of relationship – whether departure of one co-owner constitutes ouster by the other - REAL PROPERTY - breakdown of relationship – departure of one co-owner from the property co-owned – claim for contribution by co-owner remaining – whether the departed co-owner is entitled to occupation fee LEGISLATION CITED: Family Law Act 1975 (Cth)
Married Womens Property Act 1882 (Eng)
Property (Relationships) Act 1984
Suitors’ Fund Act 1951
Uniform Civil Procedure Rules 2005, Schedule 5CASES CITED: Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167
Albion Insurance Co Ltd v Government Insurance Office of NSW…
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- AGLC
- Callow v Rupchev [2009] NSWCA 148
- Case
- [2009] NSWCA 148
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Ms Callow's departure from the property constituted an ouster by Mr Rupchev, and consequently, whether she was entitled to an occupation fee to be set off against Mr Rupchev's claim for contribution towards mortgage payments. The court also had to determine the correct apportionment of the proceeds of sale of the property, taking into account these competing claims.
The Court of Appeal held that the departure of one co-owner from a jointly occupied property, in the absence of any conduct by the remaining co-owner amounting to an ouster, does not automatically disentitle the departed co-owner from an occupation fee. The court reasoned that a claim for an occupation fee is a claim in equity, and it is equitable to set off such a fee against a claim for contribution for mortgage payments made by the occupying co-owner, particularly where the parties' relationship has broken down. The court found that Mr Rupchev's actions did not amount to an ouster of Ms Callow.
The court allowed the appeal in part, setting aside the previous orders. It declared the entitlements to the proceeds of sale, including a specific amount for Mr Rupchev and the balance for Ms Callow, with adjustments for payments made from a controlled money account. The matter was remitted for final orders regarding the precise amount of payment due from Mr Rupchev to Ms Callow, with directions on costs.
Orders
Orders of the court
(1) Grant leave to the applicant to appeal against the orders made in the Common Law Division on 16 November 2007; (2) Allow the appeal in part and set aside the orders made in the Common Law Division; (3) Declare that, as at the date of judgment in the Common Law Division, the proceeds of sale of the property at 21 Redgrave Avenue, Normanhurst, held in an interest bearing controlled money account with Goldrick Farrell Mullan, solicitors, being an amount of $172,141.49 together with interest on that amount, was held, (a) as to one half share, for Mr Vladimir Rupchev; (b) as to the other half share, (i) as to an amount of $37,716, for Mr Vladimir Rupchev, and (ii) as to the balance, for Ms Beverley Callow; (c) as to such interest as had accrued at the date of distribution of the funds, for the respective parties in proportion to their entitlements set out above; (4) Declare that Ms Callow is entitled to a payment from Mr Rupchev of such amount as was paid to him from the controlled money account in excess of his entitlement as set out above, together with interest thereon at the rate prescribed by Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) from the date on which it was disbursed to or at the direction of Mr Rupchev until paid by him to Ms Callow; (5) Remit the matter to the Common Law Division for final orders (if not agreed) as to the amount of the payment due under order (4); (6) Order that Ms Callow pay Mr Rupchev's costs of the proceedings in the Common Law Division from 26 May 2006, assessed on the ordinary basis; (7) Order that Mr Rupchev pay Ms Callow's costs in this Court as a self-represented litigant; (8) Grant Mr Rupchev a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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