McCARRICK and Cohen and Anor

This matter concerned a dispute between Mr McCarrick (the applicant) and Mr Cohen (the first respondent) regarding beneficial ownership of a property registered in Mr Cohen's name. Mr C was also a party to the proceedings. The dispute arose from the initial joint purchase of the property in 2000 by Mr Cohen, Mr C, and their mother, with the common intention that they would jointly own it.

The central legal issue before Judge Burchardt was to determine the nature and extent of the beneficial interests in the property, given that Mr Cohen was the sole registered owner. The court was required to consider whether a common intention constructive trust had arisen and, if so, how that trust had been terminated and what the respective entitlements of the parties were upon its cessation.

The court found that a common intention constructive trust had been established, reflecting the purchasers' shared intention to own the property jointly and their subsequent contributions between 2000 and 2013. This trust was brought to an end in 2013 when Mr Cohen mortgaged the property for $100,000 without the knowledge or consent of Mr C. The court also determined that the mother had abandoned her interest in the property. Consequently, as at the cessation of the trust, Mr Cohen and Mr C were each entitled to an equitable half share of the property's value.

The court ordered a retrospective valuation of the property as at February 2013. Mr Cohen's equitable share was to be calculated by taking the February 2013 value, subtracting the $130,000 mortgage, dividing the result by two, and then further subtracting $100,000. Mr C was ordered to pay the applicant 70 per cent of this calculated sum and Mr Cohen 30 per cent within 30 days, with liberty to apply for sale orders in the event of non-compliance.