Lever v Murray Murray v Lever

The New South Wales Court of Appeal heard appeals in *Lever v Murray* and *Murray v Lever*, concerning a dispute over the ownership and entitlement to proceeds from the sale of a property at 145 Darlinghurst Road, Darlinghurst. The primary dispute revolved around whether the property was held by the parties as joint tenants or tenants in common, and the implications of this for the distribution of the sale proceeds following the death of one of the original co-owners.

The central legal issues before the Court of Appeal were: (1) whether the deceased co-owner's interest in the property survived to the other co-owner by way of survivorship (as would occur in a joint tenancy), or whether it passed under the deceased's will (as would occur in a tenancy in common); and (2) if the property was held as tenants in common, what was the correct apportionment of the sale proceeds, particularly in light of alleged contributions and advancements made by the parties.

The Court of Appeal determined that the initial acquisition of the property by the parties did not create a joint tenancy. Applying established principles of property law, the Court found that the intention of the parties, as evidenced by their conduct and the circumstances of the acquisition, was to hold the property as tenants in common. This conclusion was based on the absence of the necessary unities for a joint tenancy and the inference that each party intended to hold a distinct, severable share. Consequently, the deceased's interest did not pass by survivorship but formed part of their estate. The Court then proceeded to consider the apportionment of the sale proceeds, taking into account the respective contributions of the parties to the purchase price and any subsequent mortgage payments or improvements.

The Court of Appeal ordered that the appeals be allowed in part, setting aside the orders of the primary judge and remitting the matter to the Supreme Court for further determination of the apportionment of the sale proceeds in accordance with the principles of tenancy in common.