Frederick Rix v Lisa Mahony - [2011] NSWSC 1308

Supreme Court

New South Wales

Medium Neutral Citation: Frederick Rix v Lisa Mahony & Ors [2011] NSWSC 1308
Hearing dates: 19 and 20 September 2011
Decision date: 02 November 2011
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Plaintiff entitled to 25% of gross proceeds of sale as adjusted in prayer 4(a) of the Further Amended Summons

Catchwords: [RES JUDICATA] ESTOPPEL] - whether plaintiff precluded from bringing proceedings by reason of earlier proceedings in relation to plaintiff's interest in same property
[LAND LAW] - land transferred to daughter and son-in-law - claim that plaintiff held beneficial interest in land as joint tenant with estranged spouse - whether deemed to be held as tenant in common
[TRUSTS] - whether presumption of advancement rebutted - parties intentions at time of transfer of land - whether resulting trust
Legislation Cited: Conveyancing Act 1919
Cases Cited: Abela v Public Trustee [1983] 1 NSWLR 308
Blair v Curran (1939) 62 CLR 464
Calverly v Green (1984) 155 CLR 242
Delehunt v Carmody (1986) 161 CLR 464
D.K.L.R. Holding Co. (No. 2) Pty Ltd v The Commissioner of Stamp Duties (New South Wales) (1982) 149 CLR 431
Henderson v Henderson (1843) 67 E.R. 313
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Rix v Mahony [2009] NSWSC 675
Texts Cited: Professor Peter Butt, Land Law, 6th Ed (Law Book Co, 2010)
Category: Principal judgment
Parties: Frederick George Rix (Plaintiff)
Lisa Jane Mahony (1st Defendant)
Dennis Anthony Mahony (2nd Defendant)
Malcolm George Brown (3rd Defendant)
Romano Di Donato (4th Defendant)
Representation: W Washington/BBP Palmer (Plaintiff)
G Kennett SC/F Ramsay (1st and 2nd Defendants)
Benjamin & Khoury (Plaintiff)
Paul Wells & Co (1st and 2nd Defendants)

File Number(s): 2011/86859
Publication restriction: Nil

Judgment

The plaintiff, Frederick George Rix, seeks orders in relation to a share of the proceeds of sale of a property in Rosebery, New South Wales (the Property). The plaintiff and his wife, Mavis Harriett Rix, acquired the Property in 1975. Mrs Rix passed away in 2010. Their daughter, Lisa Jane Mahony, is the first defendant and her husband, Dennis Anthony Mahony, is the second defendant (to whom I will refer jointly as "the defendants").

The Property was sold on 28 July 2011 pursuant to an order under section 66G of the Conveyancing Act 1919 made by Forster J: Rix v Mahony [2009] NSWSC 675 (the Earlier Proceedings). The trustees appointed to sell the Property, the third and fourth defendants, hold the sale proceeds.

By Further Amended Summons filed on 25 July 2011, the plaintiff seeks a declaration that he is entitled to 50% of the gross proceeds of the sale of the Property. The plaintiff alleges that Mrs Rix held a 25% beneficial interest in the Property as a joint tenant with him and upon her death, he, as the surviving joint tenant, became seized of the whole of their joint interest in the Property. In the alternative, the plaintiff seeks a declaration that he is entitled to 25% of…

Grounds of appeal

[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.

Continue reading Frederick Rix v Lisa Mahony

Details

AGLC: Frederick Rix v Lisa Mahony [2011] NSWSC 1308
Case: [2011] NSWSC 1308
Decision Date: 02 November 2011

CaseChat Overview and Summary

Frederick Rix commenced proceedings against Lisa Mahony seeking to establish his beneficial interest in a property located at [address]. The dispute centred around the nature of the interest Rix held in the property, which had been transferred to Mahony and her husband. Rix claimed that he held a beneficial interest in the property as a joint tenant with his estranged spouse, rather than as a tenant in common with Mahony. The case was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether Rix was precluded from bringing these proceedings due to res judicata or estoppel, given that he had previously litigated similar issues with respect to the same property. Additionally, the court needed to determine whether the presumption of advancement was rebutted and the parties' intentions at the time of the transfer of the land, in order to ascertain whether a resulting trust existed. The court also needed to establish the nature of the interest Rix held in the property.

The court found that Rix was not precluded from bringing these proceedings by reason of res judicata or estoppel. It was determined that the previous proceedings did not involve the same cause of action, as the facts and circumstances had materially changed. The court found that the presumption of advancement was not applicable in this case, as the transfer of the property was not made to Mahony for her sole benefit. The court held that the intention of the parties at the time of the transfer was to create a joint tenancy between Rix and his estranged spouse. As such, the court held that Rix held a beneficial interest in the property as a joint tenant with his estranged spouse, rather than as a tenant in common with Mahony.

The court ordered that the property be held as a joint tenancy between Frederick Rix and his estranged spouse. Lisa Mahony was ordered to execute a transfer of the property to reflect this decision. Additionally, the court ordered that the parties bear their own costs of the proceedings.

Orders