Mazzone v James - [2010] NSWSC 437

CITATION: MAZZONE v JAMES & ANOR [2010] NSWSC 437

HEARING DATE(S): 06/05/2010

JUDGMENT DATE :
6 May 2010

JURISDICTION: EQUITY

JUDGMENT OF: Bryson AJ at 1

EX TEMPORE JUDGMENT DATE: 6 May 2010

DECISION: 1.Declare that the entitlements to moneys held by the Public Trustee from the proceeds of sale of 45 Cabbage Tree Lane Fairy Meadow, the land in Folio 4/19568, are these:
1. The plaintiff is entitled to 97.87%; the first defendant is entitled to 2.13%.
2. Direct that the Public Trustee distribute funds available as proceeds of the sale after payment of all proper charges in these proportions.
3. Order each party bear his or her own costs of the proceedings up to and including the order appointing statutory trustees for sale.
4. Order that the defendants pay the plaintiff’s costs of these proceedings with respect to attendances after 18 June 2009.

CATCHWORDS: PARTITION - sale of co-owned land under Conveyancing Act 1919 - disposition of proceeds - parties bought house property in partnership or joint venture to renovate, resell and share profits - project reached stalemate because of disputes, Public Trustee appointed under s 66G, sold land, paid mortgage and charges and produced small surplus – decision on entitlements to distribution according to oral terms of joint venture - on the facts, there were no profits, two members were entitled to their expenditures, the fund was not sufficient to repay them and the available money was distributed pro rata. Decision on facts.

CATEGORY: Principal judgment

CASES CITED: Arrow Custodians Pty Ltd v Pine Forests of Australia [2008] NSWSC 839
Forgeard v Shanahan (1994) 35 NSWLR 206
McKay v McKay [2008] NSWSC 256

PARTIES: Nicodemo Mazzone - Plaintiff
Trystan David James - First Defendnt
Sharron James - Second Defendant

FILE NUMBER(S): SC 280593/2008

COUNSEL: A. Kumar - Plaintiff
Defendants in Person

SOLICITORS: V F Stanizzo Lawyer - Plaintiff
Defendants in Person

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

THURSDAY 6 MAY 2010

280593/08 NICODEMO MAZZONE v TRYSTAN DAVID JAMES
AND SHARRON JAMES

JUDGMENT

1 HIS HONOUR: These proceedings relate to a joint venture or partnership under which the three parties purchased a house property in Cabbage Tree Lane Fairy Meadow for $310,000 in 2007. What was in contemplation was a business venture in which the property was to be renovated or improved and then resold for a contemplated profit. Some work was done on the property and it was occupied for many months by the second defendant, which cannot have been very convenient in view of the work which was proceeding.

2 There were disputes among the co-owners about the progress being made and the quality of the work done, the relationship broke down and entered a stalemate. The plaintiff commenced these proceedings on 12 September 2008 and claimed an order under the Conveyancing Act, Section 66G, appointing trustees for sale and dealing further with the sale as provided for by Part 3 Division 6 of the Conveyancing Act.

3 In…

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 Mazzone v James

Details

AGLC: Mazzone v James [2010] NSWSC 437
Case: [2010] NSWSC 437
Decision Date: 6 May 2010

CaseChat Overview and Summary

In the case of Mazzone v James, the parties were co-owners of a property that they had purchased together with the intention to renovate and resell. The venture eventually reached a stalemate due to disputes, leading to the appointment of a Public Trustee under section 66G of the Conveyancing Act 1919. The Trustee subsequently sold the land, settled the mortgage and charges, and produced a small surplus. The primary dispute in the case revolved around the distribution of this surplus according to the oral terms of the joint venture. The court had to determine the entitlements of the parties based on their agreements and the actual financial outcome of the venture.

The legal issues before the court included whether the parties had entered into a partnership or joint venture, the terms of their agreement concerning the disposition of the proceeds from the sale of the property, and the application of the surplus funds. It was crucial to establish if any profits had been made and, if so, how they should be distributed. Additionally, the court needed to consider whether the fund was sufficient to repay any expenditures made by the parties and how the surplus should be allocated if it fell short of covering these costs.

In delivering the judgment, the court found that no profits had been made from the joint venture. The two members of the venture were, however, entitled to their respective expenditures. The available fund was insufficient to repay these expenditures in full. Consequently, the court ruled that the surplus should be distributed among the parties in proportion to their individual shares. The decision was made on the basis of the specific facts of the case, reflecting the oral terms of the joint venture and the financial realities of the situation.

The final orders of the court directed the distribution of the surplus funds in accordance with the pro rata shares of the parties. The decision emphasised the importance of the terms agreed upon by the co-owners and the need for a fair and equitable distribution of the proceeds from the sale of the property. The court's ruling provided clarity on the entitlements of the parties involved in the joint venture, taking into account the actual financial outcome and the terms of their agreement.

Orders