10 March 2023; further written submissions ending 29 March 2023
Date of orders:
20 April 2023
Decision date:
20 April 2023
Jurisdiction:
Equity - Expedition List
Before:
Parker J
Decision:
See [155]
Catchwords:
EQUITY – remedies – failed joint endeavour – constructive trust for sale of property and division of net proceeds – form of declaration – return of contributions – indexation – sharing of surplus – allowances – occupation for period after breakdown of joint endeavour – other losses allegedly suffered by owner
COSTS – Party/Party – plaintiff fails against one defendant and succeeds against the other – defendants commonly represented – “rule of thumb” – form of order in favour of successful defendant – unsuccessful defendant a corporate trustee - application for personal costs order against director – failure to seek judicial advice – application refused – plaintiff legally aided – set-off
[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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AGLC
Makaritis v Makaritis (No 3) [2023] NSWSC 409
Case
[2023] NSWSC 409
Decision Date
CaseChat Overview and Summary
The case before the court involved a dispute between Makaritis and Makaritis (No 3) where the primary issue was the equitable distribution of proceeds from the sale of a jointly owned property. The parties had previously entered into a joint endeavour which failed, leading to the sale of the property. The court was tasked with determining the appropriate form of declaration and division of the net proceeds from the sale, including whether indexation should apply, how any surplus should be shared, and whether allowances for occupation and other losses should be made. The plaintiff also sought personal costs against the director of a corporate defendant.
The court considered several legal principles in reaching its decision. Firstly, it examined the nature of the constructive trust in the context of the failed joint endeavour. The court determined that the parties were entitled to an equitable division of the net proceeds from the sale of the property. It also assessed the appropriateness of indexation and the sharing of any surplus, ultimately deciding that indexation should apply and the surplus should be shared equally. Regarding allowances, the court found that the plaintiff was entitled to an allowance for occupation of the property after the breakdown of the joint endeavour but dismissed claims for other losses.
In relation to costs, the court applied the "rule of thumb" for determining costs between parties where one succeeds and the other fails. The plaintiff, who was legally aided, did not succeed against one defendant but did succeed against the other. The court refused an application for personal costs against the director of the unsuccessful defendant, citing the director's failure to seek judicial advice on the matter. Consequently, the court ordered the unsuccessful party to pay costs to the successful party.