Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Chetwynd & Ors v Rose [2021] NSWCA 193 Hearing dates: 17 March 2021 Date of orders: 31 August 2021 Decision date: 31 August 2021 Before: Meagher JA [1]
Leeming JA [2]
White JA [3]Decision: (1) Appeal allowed in part.
(2) Set aside orders 7(b), 8 and 9 made on 16 July 2020 and vary order 7(a) by deleting the words “subject to paragraph 7(b) below”.
(3) Stay the operation of order 7(a) made on 16 July 2020 pending determination of the order to be made as to the costs of the proceedings below.
(4) Declare that in addition to the adjustment provided for by the declaration in order 1 made on 16 July 2020, the first and second appellants are entitled to adjustments in the accounts of the third appellant in the sum of $47,093 by that sum being debited to the loan account of the respondent and credited to the loan account of the first and second appellants.
(5) Otherwise dismiss the appeal.
(6) Make no order as to the costs of the appeal to the intent that the parties bear their own costs of the appeal.
(7) Order that within 14 days the appellants file and serve written submissions of no more than seven pages as to what orders should be made with respect to the costs of the proceedings below, including as to whether any costs ordered in favour of the respondent should be assessed on a gross sum basis and should be deducted from the appellants’ share of the net proceeds of sale the subject of order 7 made on 16 July 2020.
(8) Direct that within 14 days thereafter the respondent file and serve written submissions of no more than seven pages on the matters referred to in order 7.
(9) Any submissions in reply by the appellants (to be of no more than five pages) be filed and served within seven days thereafter.
Catchwords: EQUITY – Trusts and trustees – Express trusts – Declaration of trust – Where only evidence of trust was a conversation purported to have occurred 23 years before hearing – Where evidence inconsistent with later documentary evidence – No issue of principle
LAND LAW – Co-ownership – Rights between co-owners – Account – Where accounts showed beneficial co-owners paid “rent” to third beneficial co-owner – Where accounting secured a tax advantage for the third co-owner – Where no evidence that the accounting was intended to reflect payment of an occupation fee – Whether beneficial co-owners entitled to adjustment
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Income Tax Assessment Act 1936 (Cth) Div 7A
Cases Cited: Chetwynd v Rose (No 2) [2020] NSWSC 870
Chow v Chow (No 2) [2015] NSWSC 1348
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Kardos v Sarbutt(No 2) [2006] NSWCA 206
Continue reading Chetwynd v Rose
Sign in free to access the full text
- AGLC
- Chetwynd v Rose [2021] NSWCA 193
- Case
- [2021] NSWCA 193
- Decision Date
CaseChat Overview and Summary
The court was required to determine if a conversation that allegedly occurred 23 years prior to the hearing was sufficient evidence to establish a declaration of trust, and whether this alleged declaration was consistent with subsequent documentary evidence. Furthermore, the court had to consider whether payments made by some beneficial co-owners to a third beneficial co-owner, which secured a tax advantage for the latter, were intended to reflect the payment of an occupation fee, thereby entitling the former to an adjustment in the accounts.
The Court of Appeal found that the evidence of the alleged declaration of trust was insufficient and inconsistent with later documentary evidence, and therefore no such trust had been established. Regarding the accounting, the court determined that the payments described as "rent" were not intended to represent an occupation fee, and consequently, the beneficial co-owners were entitled to an adjustment in the accounts. The court allowed the appeal in part, setting aside certain orders and varying another, and declared that the first and second appellants were entitled to an adjustment of $47,093. The court made no order as to the costs of the appeal, directing the parties to file submissions regarding the costs of the proceedings below.
Orders
Orders of the court
(1) Appeal allowed in part.
(2) Set aside orders 7(b), 8 and 9 made on 16 July 2020 and vary order 7(a) by deleting the words “subject to paragraph 7(b) below”.
(3) Stay the operation of order 7(a) made on 16 July 2020 pending determination of the order to be made as to the costs of the proceedings below.
(4) Declare that in addition to the adjustment provided for by the declaration in order 1 made on 16 July 2020, the first and second appellants are entitled to adjustments in the accounts of the third appellant in the sum of $47,093 by that sum being debited to the loan account of the respondent and credited to the loan account of the first and second appellants.
(5) Otherwise dismiss the appeal.
(6) Make no order as to the costs of the appeal to the intent that the parties bear their own costs of the appeal.
(7) Order that within 14 days the appellants file and serve written submissions of no more than seven pages as to what orders should be made with respect to the costs of the proceedings below, including as to whether any costs ordered in favour of the respondent should be assessed on a gross sum basis and should be deducted from the appellants’ share of the net proceeds of sale the subject of order 7 made on 16 July 2020.
(8) Direct that within 14 days thereafter the respondent file and serve written submissions of no more than seven pages on the matters referred to in order 7.
(9) Any submissions in reply by the appellants (to be of no more than five pages) be filed and served within seven days thereafter.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.