Foundas v Arambatzis

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.