(1) Appeal allowed in part. (2) Vary the orders made on 15 October 2018 as follows: (a) discharge order 3(f) and substitute in lieu thereof an order that “balance to be paid to the plaintiff and the defendant in the proportions of 48.7 per cent and 51.3 per cent”; and (b) in order 5 substitute the sum of $103,704.49 for $108,983.93. (3) Otherwise dismiss the appeal. (4) Order the appellant pay the respondents’ costs of the appeal. (5) Discharge the stay of the orders of 15 October 2018 and 6 September 2019. (6) Order that the appellant deliver vacant possession of the property at 12 Magee Street, Ashcroft to the second respondents (trustees for sale) within 28 days. (7) Order that the second respondents be at liberty to obtain a writ for possession forthwith, such writ not to be executed before the expiry of 28 days. (8) Order that in accounting for the balance to be paid to the first respondent and the appellant in accordance with the orders of 15 October 2018, as varied by these orders, the second respondents charge the appellant with a reasonable market rent for her occupation of the property from 29 October 2018 to the date of her delivering vacant possession. (9) Give liberty to the parties (including the second respondents) to apply to the primary judge for any further or consequential orders.
Catchwords:
LAND LAW — Co-ownership — Resulting trust – whether proceeds from sale of property be distributed in accordance with the legal title – where property held as tenants in common – where unequal contributions by co-owners to acquisition costs– whether arguable that presumption of resulting trust not rebutted
LAND LAW — Co-ownership — Statutory trust for sale – whether share of property held on trust for other co-owner – whether arguable defence to an application under s 66G Conveyancing Act 1919 (NSW) for appointment of trustees for sale
[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.
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Foundas v Arambatzis [2020] NSWCA 47
Case
[2020] NSWCA 47
Decision Date
CaseChat Overview and Summary
The appeal in *Foundas v Arambatzis* concerned a dispute over the distribution of proceeds from the sale of a property held by the parties as tenants in common. The central issue was whether the proceeds should be divided according to legal title or in proportion to the unequal contributions made by the co-owners to the acquisition costs. The case was heard in the Court of Appeal of New South Wales by Bell P, Basten, and White JJA.
The court was required to determine two primary legal issues. Firstly, whether a resulting trust arose from the unequal contributions to the acquisition of the property, and if so, whether this presumption of a resulting trust had been rebutted. Secondly, the court considered whether the statutory trust for sale provisions under section 66G of the *Conveyancing Act 1919* (NSW) applied, and if so, whether there was an arguable defence to an application for the appointment of trustees for sale.
The Court of Appeal found that the presumption of a resulting trust, arising from the unequal contributions to the purchase price, was not rebutted. Consequently, the court varied the primary judge's orders to reflect a distribution of the sale proceeds in accordance with the determined beneficial interests, specifically 48.7 per cent to the plaintiff and 51.3 per cent to the defendant. The court also ordered the appellant to pay the respondents' costs of the appeal and to deliver vacant possession of the property within 28 days, with the trustees for sale to charge the appellant a reasonable market rent for her occupation from a specified date until vacant possession was delivered.
Orders
Orders of the court
(1) Appeal allowed in part.
(2) Vary the orders made on 15 October 2018 as follows:
(a) discharge order 3(f) and substitute in lieu thereof an order that “balance to be paid to the plaintiff and the defendant in the proportions of 48.7 per cent and 51.3 per cent”; and
(b) in order 5 substitute the sum of $103,704.49 for $108,983.93.
(3) Otherwise dismiss the appeal.
(4) Order the appellant pay the respondents’ costs of the appeal.
(5) Discharge the stay of the orders of 15 October 2018 and 6 September 2019.
(6) Order that the appellant deliver vacant possession of the property at 12 Magee Street, Ashcroft to the second respondents (trustees for sale) within 28 days.
(7) Order that the second respondents be at liberty to obtain a writ for possession forthwith, such writ not to be executed before the expiry of 28 days.
(8) Order that in accounting for the balance to be paid to the first respondent and the appellant in accordance with the orders of 15 October 2018, as varied by these orders, the second respondents charge the appellant with a reasonable market rent for her occupation of the property from 29 October 2018 to the date of her delivering vacant possession.
(9) Give liberty to the parties (including the second respondents) to apply to the primary judge for any further or consequential orders.