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McKay v McKay

McKay v McKay

Case [2008] NSWSC 177 21 February 2008

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CITATION: McKay & anor v McKay [2008] NSWSC 177

HEARING DATE(S): 19-20 February 2008

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 21 February 2008

DECISION: Plaintiffs entitled to return of the half share transferred to defendant. Defendant liable for occupation fee.

CATCHWORDS: EQUITY – Joint venture – where substratum fails without attributable blame – whether prima facie remedy is return of contributions or minimum equity to remove unconscionability. - REAL PROPERTY – Co-ownership – rights of co-owners – occupation fee – upon breakdown of domestic relationship – where not reasonably practicable to remain under one roof – whether party remaining in occupation liable to pay occupation fee – improvements – where no evidence that value of property enhanced – whether co-owner entitled to allowance – services rendered – where co-owner performs some obligations to care for other – whether allowance warranted.

LEGISLATION CITED: (NSW) Contracts Review Act 1980
(NSW) Conveyancing Act 1919, s 66G
(NSW) Crimes Act 1900
(NSW) Property (Relationships) Act 1984

CATEGORY: Principal judgment

CASES CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Bennett v Horgan (NSWSC, 3 June 1994, unreported)
Biviano v Natoli (1998) 43 NSWLR 695
Chieco v Evans (1990) 5 BPR 11,297
Dennis v McDonald [1982] Fam 63
In the Marriage of V and CL Fedele (1986) 10 Fam LR 1069
Forgeard v Shanahan (1994) 35 NSWLR 206
Galaxidis v Galaxidis (No 2) [2002] NSWSC 831
Giumelli v Giumelli (1999) 196 CLR 101
Griffiths v Kerkemeyer (1977) 139 CLR 161; (1977) 15 ALR 387; (1977) 51 ALJR 792
Hill v Hill [2005] NSWSC 863
Hogan v Baseden (1997) 8 BPR 15,723
Jacobs v Seward (1872) LR 5 HL 464
Kriezis v Kriezis [2004] NSWSC 167
Luke v Luke (1936) 36 SR(NSW) 310
Malsbury v Malsbury [1982] 1 NSWLR 226
Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds (1985) 160 CLR 583
O'Neill v Williams [2006] NSWSC 707
Rupchev v Callow [2007] NSWSC 1097
Sirtes v Pryer [2005] NSWSC 1082
Stoklasa v Stoklasa [2004] NSWSC 518
Tory v Tory [2007] NSWSC 1078

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 21 February 2008

4043/05 Carolyn Suzanne McKay & anor v David McKay

JUDGMENT (ex tempore)

1 HIS HONOUR: Prior to December 1996, the defendant David McKay and his then de facto wife Jill Bruce were the registered proprietors as tenants in common in equal shares of real property at West Ryde which they occupied as their home. Mr McKay became seriously ill with life threatening conditions which still affect him, and difficulties arose in his relationship with Ms Bruce, who left the property in or about September 1996. Mr McKay told his daughter, the first plaintiff Carolyn Suzanne McKay, that he would…

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 177
Case: [2008] NSWSC 177
Decision Date: 21 February 2008

CaseChat Overview and Summary

In the case of McKay v McKay, the parties were involved in a dispute concerning the dissolution of a joint venture and the rights of co-owners in real property following the breakdown of their domestic relationship. The Full Court of the Family Court was tasked with determining the legal issues surrounding the equitable distribution of the joint venture, the payment of occupation fees, and the allowance for services rendered by one co-owner to the other.

The central legal issues the court had to decide were whether the appropriate remedy for the failure of the joint venture was the return of contributions or the minimum equity to remove unconscionability. Additionally, the court needed to determine whether the co-owner who remained in occupation of the property was liable to pay an occupation fee to the other co-owner, and if so, at what rate. The court also had to consider whether the co-owner who performed certain services to care for the other was entitled to an allowance for those services, and whether improvements made by one co-owner to the property entitled them to an allowance.

The court's reasoning involved an analysis of the principles of equity, particularly in relation to joint ventures and co-ownership. The court found that the prima facie remedy for the failure of the joint venture was the return of contributions. However, in the context of the relationship between the parties, the court considered the minimum equity to remove unconscionability as a more appropriate remedy. The court held that the co-owner who remained in occupation of the property was not liable to pay an occupation fee as it was not reasonably practicable for the parties to remain under one roof. Additionally, the court determined that there was no evidence that the value of the property was enhanced by the improvements made by one co-owner, and therefore no allowance was warranted. However, the court did find that the co-owner who performed services to care for the other was entitled to an allowance for those services.

The final orders of the court provided for the equitable distribution of the joint venture, with specific allowances for the services rendered by one co-owner to the other, and a determination that no occupation fee was payable. The court's decision provided clarity on the rights and obligations of co-owners in the context of a failed joint venture and the breakdown of a domestic relationship.

Orders