Nydegger v McKenzie

CITATION:	NYDEGGER V. McKENZIE & ANOR. [2001] NSWCA 393
FILE NUMBER(S):	CA 41041/00
HEARING DATE(S):	25 September 2001
JUDGMENT DATE:	15 November 2001
PARTIES :	Olivia Pearl Nydegger - appellant Therese Violette McKenzie - first respondent Colin McKenzie - second respondend
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	ED4738/99
LOWER COURT JUDICIAL OFFICER :	Bergin J

COUNSEL:	Mr. A.J. McInnes QC with Ms. N. Butler for appellant Mr. J. Sexton SC with Mr. W. Bradford for respondents
SOLICITORS:	Kenneth Harrison, Bondi Junction for appellant Booth Brown Samuels & Olney for respondents
CATCHWORDS:	EQUITY - Estoppel - Maxims - "He who seeks equity must do equity" - Daughter benefit of trust of property subject to life interest in mother - Rift between mother and daughter - Whether daughter as condition of relief should make some provision in mother's favour. D.
CASES CITED:	Flinn v. Flinn [1999] 3 VR 712 Sander v. Twigg (1887) 13 VLR 765 at 785 Malton v. Black, Young J, 26/5/86 Constanton v. Permanent Trustee Australia Limited, Young J, 13/6/91 Nieborak v. Piper, Young J, 11/12/90
DECISION:	See par.62 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41041/00
ED 4378/99

SHELLER JA

BEAZLEY JA

HODGSON JA

Thursday 15th November 2001

NYDEGGER V. McKENZIE & ANOR.
Judgment

: I agree with the reasons of Hodgson JA as set out below.

: I also agree with Hodgson JA.

On 15th December 2000, Bergin J made orders to the effect that, subject to certain conditions, Olivia Nydegger held her interest in four farm properties near Dubbo and certain associated assets on trust for her daughter Therese McKenzie, and also made certain consequential orders. We are dealing with an appeal from those orders. For convenience, I will generally refer to the parties and their relatives by forenames.

BACKGROUND CIRCUMSTANCES

4 Olivia was born in 1918. She married Marcel Nydegger, and there were four children of the marriage: Robert, Leon, Christine, and Therese, the youngest born 25th October 1953. Therese married Colin McKenzie in 1975, and there are three children of that marriage: Grahame and Matthew, both in their twenties, and Max who is about twelve.

5 In 1977, Marcel retired from practice as a dentist, and from about that time Marcel and Olivia established a cattle stud in partnership with Michael and Robin Fraser at the Frasers’ property “Toonga” at Tarcutta.

6 In 1986, Therese and Colin were living on a five acre property at Pitt Town. In that year, the property “Warrawong” near Dubbo was purchased by Therese and Colin as joint tenants as to one half share and Olivia as to the other half share, as tenants in common. The price was $226,000.00. About $126,000.00 was provided by Olivia, and the balance by Therese and Colin: this balance was provided through bridging finance until they sold the Pitt Town property. Therese and Colin then moved to…