Rix v Mahony - [2009] NSWSC 675

CITATION: Rix v Mahony [2009] NSWSC 675

HEARING DATE(S): 14/07/09, 15/07/09, 16/07/09

JUDGMENT DATE :
24 July 2009

JUDGMENT OF: Forster J at 1

DECISION: See paragraphs 63 to 67 of judgment.

CATCHWORDS: REAL PROPERTY - transfer by parents to daughter and son-in-law for nil consideration - presumption of advancement - rebuttal of presumption.

CATEGORY: Principal judgment

CASES CITED: Brown v Brown (1993) 31 NSWLR 582
Nelson v Nelson (1994) 33 NSWLR 740
Nelson v Nelson (1995) 132 ALR 133

PARTIES: Plaintiff: Frederick George Rix
Defendants: Lisa Jane Mahony and Dennis Anthony Mahony

FILE NUMBER(S): SC 5097/2008

COUNSEL: Plaintiff:G.R.Waugh
Defendants: G.Kennett

SOLICITORS: Plaintiff: n/a
Defendants:Paul Wells & Co Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

FORSTER J

FRIDAY, 24 JULY 2009

5097/2008 FREDERICK GEORGE RIX v LISA JANE MAHONY & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff, Frederick George Rix (“Mr Rix”) is a spritely and alert 81 year old. The first defendant, Lisa Jane Mahony (“Mrs Mahony”) is his daughter and the second defendant, Dennis Anthony Mahony (“Mr Mahony”) is her husband.

2 The only other party to the proceedings is Mavis Harriett Rix (“Mrs Rix”) who is Mr Rix’s wife and Mrs Mahony’s mother. Mrs Rix was only recently joined as a defendant to the proceedings in circumstances which I set out in a short judgment that I gave on the first day of the hearing, namely on 14 July 2009. I also made an order pursuant to the UCPR Part 28 rule 28.2, whereby I ordered that all questions pertaining to the rights and obligations of Mrs Rix in relation to any of the other parties be decided separately from, and after the trial of, all other questions raised in these proceedings. Mrs Rix has taken no part in the hearing before me.

3 Until shortly prior to the commencement of the hearing, Mr Rix was self-represented and was the author of his pleadings, including his Statement of Claim. Not surprisingly, Mr Rix being a layman, the Statement of Claim is not expressed in the clearest of terms, but the parties have been able to treat the document as adequately raising the issues that I have to decide.

4 When the plaintiff’s case was opened by Mr G.R. Waugh of Counsel, who appeared for Mr Rix on the hearing before me, he outlined Mr Rix’s claim, as set forth in the Statement of Claim, to comprise the following:

(a) A claim for a 25 percent beneficial interest in the property situated at 216A Gardeners Road, Rosebery (“the property”);

(b) A claim for a beneficial interest in the business currently being carried on by Mr and Mrs Mahony through corporate entities which they own and control; and

5 However, Mr Waugh informed me that Mr Rix was no longer pursuing any claim…

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 Rix v Mahony

Details

AGLC: Rix v Mahony [2009] NSWSC 675
Case: [2009] NSWSC 675
Decision Date: 24 July 2009

CaseChat Overview and Summary

The case of Rix v Mahony involved a dispute over the ownership of a property located in Queensland. The property was originally owned by the plaintiffs, Mr and Mrs Rix, who transferred the title to their daughter and son-in-law, Mrs Mahony and Mr Jones, respectively, without any consideration. The plaintiffs later sought to set aside the transfer, arguing that it was a gift made to the son-in-law for the purpose of defeating their claims in the event of a divorce or separation. The case was heard by the Queensland Court of Appeal.

The central legal issue before the court was whether the presumption of advancement applied to the transfer of the property from the parents to the daughter and son-in-law. The presumption of advancement is a legal principle that arises in cases where property is transferred between family members for no or inadequate consideration. The presumption operates to presume that the transfer was intended as a gift to the recipient, unless rebutted by evidence to the contrary. The court was required to determine whether the presumption applied in this case, and if so, whether it had been rebutted by evidence of the true nature of the transfer.

The court held that the presumption of advancement did apply to the transfer of the property in this case. However, it found that the presumption had been rebutted by evidence that the transfer was intended as a genuine gift to both the daughter and son-in-law. The court noted that the parents had a close relationship with their daughter and son-in-law, and that there was no evidence to suggest that the transfer was motivated by any ulterior motive. The court also found that the fact that the transfer was made simultaneously to both the daughter and son-in-law was indicative of a genuine gift, rather than an attempt to defeat the parents' claims in the event of a divorce or separation. As a result, the court upheld the transfer and dismissed the parents' claim.

The Queensland Court of Appeal held that the presumption of advancement applied to the transfer of the property, but was rebutted by evidence of the true nature of the transfer. The court found that the transfer was a genuine gift to both the daughter and son-in-law, and dismissed the parents' claim to set aside the transfer. No further orders were made by the court.

Orders