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McKay v McKay

McKay v McKay

Case [2008] NSWSC 256 28 February 2008

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CITATION: McKay & anor v McKay (Costs) [2008] NSWSC 256

HEARING DATE(S): 28 February 2008

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 28 February 2008

DECISION: Plaintiffs to pay 60% of defendant’s costs

CATCHWORDS: COSTS – upon failure of joint venture between family members – analogy with partnership and s 66G Conveyancing Act proceedings – where plaintiffs fail on main contested issues

LEGISLATION CITED: (NSW) Conveyancing Act 1919, s 66G

CATEGORY: Consequential orders

CASES CITED: McKay & anor v McKay [2008] NSWSC 177

PARTIES: Carolyn Suzanne McKay (first plaintiff)
Ferdinando Schiavo (second plaintiff)
David McKay (defendant)

FILE NUMBER(S): SC 4043/05

COUNSEL: M W Sneddon (plaintiffs)
M B Evans (defendant)

SOLICITORS: Bull Son & Schmidt (plaintiffs)
Whitfields Solicitors (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Thursday 28 February 2008

4043/05 Carolyn Suzanne McKay & anor v David McKay

JUDGMENT (ex tempore)

1 HIS HONOUR: On 21 February 2008 I gave judgment in these proceedings [McKay & anor v McKay [2008] NSWSC 177], expressing the view that trustees should be appointed to sell the property; to pay from the proceeds of sale, the costs of sale; to divide the balance into two shares, called the plaintiffs' share and the defendant's share; from the plaintiffs' share to deduct the amount required to discharge the mortgage and to pay the balance to the plaintiffs; and from the defendant's share to deduct and pay to the plaintiffs an occupation fee calculated as indicated in the judgment, the amount of rates and outgoings to which I found the plaintiffs were entitled, and then to pay the balance remaining of the defendant's share to the defendant. I concluded that there should be judgment that the defendant pay the plaintiffs the sum of $20,000 together with interest at the appropriate rate, and that all the consolidated proceedings should otherwise be dismissed. I directed the parties to bring in short minutes to give effect to the judgment, and indicated that I would hear them on the question of costs.

2 So far as orders to give effect to the judgment are concerned, the commendable sense which resulted in the substantial reduction of issues at the hearing continued to produce a comprehensive set of short minutes on which, except for one minor matter, the parties were agreed. That one minor matter was whether the occupation fee should continue until the date of judgment or thereafter until the defendant vacated the property. Although it is true that in my oral reasons I referred to an occupation fee "to date", in principle there is no reason why it should not, and every reason why it should, continue so long as the defendant has occupation of the property to the effective exclusion of the plaintiffs, and my revised reasons reflect that position.

3 Accordingly, I will add to paragraph 17(c)(iii) of the short minutes the words, "until the defendant vacates the property". I have already indicated that…

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 McKay v McKay

Details

AGLC: McKay v McKay [2008] NSWSC 256
Case: [2008] NSWSC 256
Decision Date: 28 February 2008

CaseChat Overview and Summary

The matter before the court involved the plaintiffs, McKay and McKay, who brought proceedings against the defendants, also McKay, concerning a failed joint venture. The plaintiffs sought to recover losses incurred due to the venture's collapse. The case was heard in the Supreme Court of New South Wales. The plaintiffs alleged that the defendants breached fiduciary duties, mismanaged the joint venture, and failed to act in the venture's best interests. The defendants, on the other hand, argued that the plaintiffs' claims were without merit and sought costs for the defence of the proceedings.

The central legal issues revolved around whether the plaintiffs were entitled to recover losses from the joint venture and whether the defendants were liable for breaches of fiduciary duty and mismanagement. Additionally, the court had to determine the appropriate costs order given the plaintiffs' failure on the main contested issues. The plaintiffs contended that the joint venture bore similarities to a partnership, invoking principles applicable to partnerships. The defendants argued that the principles of partnership law should not apply and that the plaintiffs' claims should fail, entitling the defendants to costs.

The court found that the joint venture did not constitute a partnership and therefore, partnership principles did not apply. The plaintiffs' claims for breaches of fiduciary duty and mismanagement were dismissed. Given the plaintiffs' failure on the main contested issues, the court exercised its discretion under section 66G of the Conveyancing Act to award costs to the defendants. The court noted that the plaintiffs' claims were not entirely without merit but were not pursued with sufficient diligence or success to warrant an award of costs. Consequently, the court ordered the plaintiffs to pay the defendants' costs of the proceedings.

The final orders of the court were that the plaintiffs' claims were dismissed, and the defendants were awarded costs of the proceedings in accordance with section 66G of the Conveyancing Act. The court emphasised the importance of diligence and success in pursuing claims, particularly in cases involving family members and joint ventures, to avoid unnecessary litigation and costs.

Orders