Callow v Rupchev

This case concerned an appeal to the Court of Appeal of New South Wales concerning the division of proceeds from the sale of a property co-owned by Ms Beverley Callow and Mr Vladimir Rupchev, who had been in a de facto relationship. The dispute arose after the breakdown of their relationship and Ms Callow's departure from the jointly owned property. Mr Rupchev remained in occupation of the property and sought a contribution from Ms Callow for mortgage payments made during her absence. Ms Callow, in turn, sought an occupation fee for Mr Rupchev's sole use of the property.

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.