Mendonca v Tonna

[2020] NSWCA 196

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mendonca v Tonna [2020] NSWCA 196

Hearing dates:

13 August 2020

Decision date:

26 August 2020

Before:

Bell P at [1]
Meagher JA at [3]
Payne JA at [49]

Decision:

1. Appellant’s amended notice of motion filed 1 July 2020 dismissed.

2. Appeal dismissed.

3. Appellant pay respondents’ costs of the appeal.

Catchwords:

EQUITY — Trusts and trustees — Resulting trusts — Purchase money trusts — Where funds contributed to purchase of property — Whether primary judge erred in finding that presumption of resulting trust not rebutted

LANDLORD AND TENANT — Agreements for lease — Creation — Where final page of residential tenancy agreement signed — Where dispute as to whether signature genuine — Whether primary judge erred in not being satisfied that any agreement giving rise to residential tenancy

COSTS — Party/Party — Exercise of discretion — Whether discrete and separable issues justifying departure from order that costs follow event

Legislation Cited:

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Calverley v Green (1984) 155 CLR 242; [1984] HCA 81

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Roache v News Group Newspapers Ltd [1998] EMLR 161

Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127

Category:

Principal judgment

Parties:

Renuka Mendonca (appellant)
Mark Tonna (first respondent)
Lorraine Tonna (second respondent)

Representation:

Counsel:
Appellant (self-represented)
P Newton and J Gatland (first and second respondents)

Solicitors:
Appellant (self-represented)
Adams & Partners (first and second respondents)

File Number(s):

2020/13642

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2019] NSWSC 1849

[2020] NSWSC 306

Date of Decision:

20 December 2019

Before:

Ward CJ in Eq

File Number(s):

2016/00182075
2017/00292576

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondents made an offer to purchase a property at Galston in late 2013. That offer was accepted. They were unable to obtain finance to complete the purchase, and the completion date was extended to 31 January 2014. Ultimately the appellant agreed to purchase the Galston property from the respondents for the same price as they agreed with the vendor. The purchases were completed on 31 January 2014, with the property being transferred from the original owners to the respondents, and then to the appellant. At settlement the appellant contributed $1.08 million to the purchase of the property, which she obtained through a loan secured by first mortgage. The respondents contributed the deposit, the balance of the purchase price, and also paid stamp duty and solicitors’ fees. There was no written agreement recording the basis on which the appellant was to purchase and hold the property for the respondents.

The respondents claimed that the appellant had agreed to purchase the Galston property and hold it on trust for them until they were able to secure funds from the sale of their previous home to discharge the…