Frederick George Rix v Lisa Jane Mahony

[2013] HCASL 47

FREDERICK GEORGE RIX

v

LISA JANE MAHONY & ANOR

[2013] HCASL 47
S327/2012

1. The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of New South Wales (Campbell, Meagher and Barrett JJA) dismissing an appeal against a decision of the Supreme Court of New South Wales (Bergin CJ in Eq).

2. On 28 July 2011, a property in Gardeners Road, Rosebery was sold pursuant to an order made under s 66G of the Conveyancing Act 1919 (NSW). The property was originally purchased in 1975 by the applicant and his wife as joint tenants. In 1993, the applicant and his wife agreed to transfer their interest in the property to the first respondent and her husband, who, as a result of the transfer, became the registered proprietors holding respective legal interests of a three-quarter share and a one-quarter share. There was no consideration for the transfer.

3. The applicant commenced proceedings in the Supreme Court of New South Wales Equity Division claiming an entitlement to 50 per cent of the gross proceeds of sale of the property, on grounds that the first respondent held a half share in the property on trust for him and his wife as joint tenants.  By the time of the sale the wife had died and left the entirety of her estate to her son and the first respondent.  It was not in dispute that the first respondent held a one-quarter share in the property on trust for the applicant and a one-quarter share for herself absolutely and that the second respondent held a one-quarter share.  On 2 November 2011, the Supreme Court held that at the time of the agreement to transfer in 1993 the applicant and his wife intended to hold their interests in the property separately and not jointly.  Accordingly, there was no resulting trust in favour of the applicant for a half share in the property.  His entitlement was limited to 25 per cent of the gross proceeds of the sale.

4. On 17 October 2012, the Court of Appeal unanimously dismissed an appeal by the applicant from the decision below and held that the primary judge was correct to find that at the time of the 1993 transfer the applicant and his wife intended to hold their interests in the property separately and not jointly. 

5. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

6. There is no reason to doubt the correctness of the decision of the Court of Appeal.  An appeal to this Court would have insufficient prospects of success to warrant a grant of special leave to appeal.

7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
10 April 2013 S.M. Crennan