McKenzie v Storer - [2007] ACTSC 90

McKenzie v Storer [2007] ACTSC 90

COSTS – whether unsuccessful defendant acted unreasonably in rejecting pre-trial offer of settlement – costs increased by special needs of plaintiff – arrangement entered into with goodwill on both sides but broke down without attributable fault

Federal Court of Australia Act 1976 (Cth) s 43
Property (Relationships) Act 1984 (NSW)
Court Procedures Rules 2006 (ACT) r 1721

DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151 followed
Kardos v Sarbutt (No 2) [2006] NSWCA 206 considered
McKenzie v Storer [2007] ACTSC 88 discussed

No. SC 937 of 2005

Judge: Stone J
Supreme Court of the ACT

Date: 15 November 2007

IN THE SUPREME COURT OF THE       )
  )          No. SC 937 of 2005
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:ROBYN JOYCELYN MCKENZIE
Plaintiff

AND:HELEN MARGARET STORER
Defendant

ORDER

Judge:  Stone J
Date:  15 November 2007
Place:  Sydney

THE COURT DECLARES THAT:

At all times the Defendant has held her interest in Block 17 Section 471 Division of Canberra, being the land in Volume 770 Folio 50 Edition 2, known as 12 Cumbrae Place Kambah (the Property) in trust for the benefit of the Plaintiff.

THE COURT ORDERS THAT:

Subject to order 6 of these orders, the Defendant is to provide the solicitors for the Plaintiff with an executed transfer of her interest in the Property in registrable form (except for duty stamping) within 14 days of the date of this order.
The solicitors for the Plaintiff are to hold the executed transfer in escrow until the Plaintiff has:
(a)fully repaid the loan advanced by the ANZ Bank to the Plaintiff and the Defendant jointly;
(b)obtained a discharge of the mortgage securing the loan advanced by the ANZ Bank; and
(c)paid to the Defendant the sum of $7,570.
The Defendant is to do all things reasonably necessary to cooperate in the execution of the documents required by the Plaintiff to comply with order 3 of these orders.
If the Defendant defaults in complying with order 2 or order 4 of these orders, the Court directs the Registrar of the Supreme Court to execute on behalf of the Defendant any document necessary to give effect to these orders.
The Plaintiff must indemnify the Defendant in relation to any costs, expenses or payments arising from the date of this order under the obligations imposed by the loan advanced by the ANZ Bank, such indemnity is to be secured by a charge in favour of the Defendant over the Property.
The parties are to bear their own costs of and incidental to these proceedings.

On 26 October 2007 I gave reasons for judgment in this proceeding (the “earlier reasons”) and directed the parties to bring in agreed short minutes of order giving effect to the reasons of the Court or, in default of agreement, to provide short minutes of the orders for which they respectively contended; [2007] ACTSC 88. Whilst there were some minor differences between the orders contended for by each party, the only disagreement of…

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 McKenzie v Storer

Details

AGLC: McKenzie v Storer [2007] ACTSC 90
Case: [2007] ACTSC 90
Decision Date: 15 November 2007

CaseChat Overview and Summary

The case of McKenzie v Storer involved a dispute between the plaintiff, McKenzie, and the defendant, Storer, regarding the ownership and transfer of a property located at 12 Cumbrae Place, Kambah. The central issue was whether Storer held her interest in the property in trust for McKenzie, and if so, whether she should transfer her interest to McKenzie. The case was heard in the Supreme Court of the Australian Capital Territory.

The primary legal issue was whether Storer was required to transfer her interest in the property to McKenzie, and if so, under what conditions. Additionally, the court had to determine the appropriate costs for the proceedings, taking into account the unsuccessful defendant's conduct in rejecting a pre-trial offer of settlement and the special needs of the plaintiff.

The court found that Storer did indeed hold her interest in the property in trust for McKenzie. As a result, Storer was ordered to provide an executed transfer of her interest in the property to McKenzie's solicitors, who would hold it in escrow until specific conditions were met. These conditions included McKenzie fully repaying a loan taken out jointly with Storer, obtaining a discharge of the mortgage, and paying Storer a sum of $7,570. The court also directed that if Storer failed to comply with certain orders, the Registrar of the Supreme Court would execute the necessary documents on her behalf. Furthermore, McKenzie was required to indemnify Storer for any costs arising from the loan, secured by a charge over the property.

The court ordered that the parties bear their own costs of the proceedings, taking into account the unsuccessful defendant's conduct in rejecting the pre-trial offer of settlement and the special needs of the plaintiff, which increased the costs.

Orders

Orders of the court

THE COURT DECLARES THAT:

1. At all times the Defendant has held her interest in Block 17 Section 471 Division of Canberra, being the land in Volume 770 Folio 50 Edition 2, known as 12 Cumbrae Place Kambah (the Property) in trust for the benefit of the Plaintiff.

THE COURT ORDERS THAT:

2. Subject to order 6 of these orders, the Defendant is to provide the solicitors for the Plaintiff with an executed transfer of her interest in the Property in registrable form (except for duty stamping) within 14 days of the date of this order.

3. The solicitors for the Plaintiff are to hold the executed transfer in escrow until the Plaintiff has:

(a) fully repaid the loan advanced by the ANZ Bank to the Plaintiff and the Defendant jointly;

(b) obtained a discharge of the mortgage securing the loan advanced by the ANZ Bank; and

4. The Defendant is to do all things reasonably necessary to cooperate in the execution of the documents required by the Plaintiff to comply with order 3 of these orders.

5. If the Defendant defaults in complying with order 2 or order 4 of these orders, the Court directs the Registrar of the Supreme Court to execute on behalf of the Defendant any document necessary to give effect to these orders.

6. The Plaintiff must indemnify the Defendant in relation to any costs, expenses or payments arising from the date of this order under the obligations imposed by the loan advanced by the ANZ Bank, such indemnity is to be secured by a charge in favour of the Defendant over the Property.

7. The parties are to bear their own costs of and incidental to these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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