Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: McKinlay v Woods [2024] NSWCA 122 Hearing dates: 20 March 2024 Decision date: 24 May 2024 Before: Leeming JA at [1];
White JA at [146];
Griffiths AJA at [147]Decision: 1. To the extent necessary, grant leave to appeal.
2. Appeal allowed in part.
3. In respect of the orders made on 28 July 2023, set aside part of order 1 namely, “AND the Plaintiff’s contributions shall be indexed at the rate of %6.46 per annum (compounded) from the date on which those contributions were paid until 9 December 2019”, and order 2.
4. Direct the parties to file and serve, within 21 days of today, agreed short minutes of order or, in default of agreement, proposed short minutes of order and short submissions not exceeding 5 pages in support of the orders for which they contend, with a view to this Court making final orders resolving this appeal on the papers.
5. No order as to the costs of the appeal, with the intention that the parties bear their and her own costs.
Catchwords: EQUITY – constructive trust – failed joint endeavour – property acquired by one sister and her son using borrowed funds secured by mortgage – purpose of acquiring property was to provide a home for another sister following breakdown of her marriage – sister lived in home, paid outgoings and paid “rent” roughly equivalent to mortgage repayments – sister also paid $160,000 in reduction of principal from proceeds of her divorce settlement – whether primary judge erred in finding that sister and her son held property on constructive trust for themselves and other sister in equal shares after the payment of their respective relevant contributions – whether primary judge erred in assessing the quantum of the parties’ contributions – whether primary judge erred in finding “mutual understanding” that sister had an undefined interest in property – whether primary judge erred in finding son was nominee of his mother – whether primary judge erred in indexing the sister’s capital contribution of $160,000
Legislation Cited: Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Anson v Anson [2004] NSWSC 766
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
Bosanac v Federal Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Galati v Deans [2023] NSWCA 13
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Green v Green (1989) 17 NSWLR 343
Koprivnjak v Koprivnjak [2023] NSWCA 2
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Lloyd v Tedesco (2002) 25 WAR 360; [2002] WASCA 63
Morris v Morris [1982] 1 NSWLR 61
Continue reading McKinlay v Woods
Sign in free to access the full text
- AGLC
- McKinlay v Woods [2024] NSWCA 122
- Case
- [2024] NSWCA 122
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the respondents held the property on a constructive trust for the parties in equal shares, and whether the primary judge erred in assessing the quantum of the parties' contributions. Specifically, the court considered whether there was a mutual understanding that the appellant had an undefined interest in the property, whether the son was merely a nominee for his mother, and whether the primary judge erred in indexing the appellant's capital contribution of $160,000.
The Court of Appeal allowed the appeal in part. It set aside the primary judge's order indexing the appellant's capital contribution at 6.46% per annum compounded from the date of payment until 9 December 2019, and also set aside the second order made by the primary judge. The court directed the parties to file agreed or proposed short minutes of order and submissions to enable the court to make final orders resolving the appeal on the papers. No order was made as to the costs of the appeal, with the intention that the parties bear their own costs.
Orders
Orders of the court
1. To the extent necessary, grant leave to appeal.
2. Appeal allowed in part.
3. In respect of the orders made on 28 July 2023, set aside part of order 1 namely, “AND the Plaintiff’s contributions shall be indexed at the rate of %6.46 per annum (compounded) from the date on which those contributions were paid until 9 December 2019”, and order 2.
4. Direct the parties to file and serve, within 21 days of today, agreed short minutes of order or, in default of agreement, proposed short minutes of order and short submissions not exceeding 5 pages in support of the orders for which they contend, with a view to this Court making final orders resolving this appeal on the papers.
5. No order as to the costs of the appeal, with the intention that the parties bear their and her own costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.