Rix v Mahony (No 2)

[2012] NSWCA 332

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rix v Mahony (No 2) [2012] NSWCA 332

Hearing dates:

30 July 2012

Decision date:

17 October 2012

Before:

Campbell JA at [1];
Meagher JA at [2];
Barrett JA at [30].

Decision:

(1) Appellant's notice of motion filed on 18 July 2012 dismissed.

(2) Appeal dismissed.

(3) Appellant pay the costs of the first and fifth respondents of the appeal and of that notice of motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

REAL PROPERTY - transfer of land from parents to daughter and son-in-law for no consideration - whether daughter held one-half share on trust for parents as joint tenants - parents living apart - no intention to hold jointly

Legislation Cited:

Conveyancing Act 1919

Cases Cited:

Abela v Public Trustee [1983] 1 NSWLR 308
Delehunt v Carmody [1986] HCA 67; 161 CLR 464
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; 149 CLR 431
Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273
Rix v Mahony [2009] NSWSC 675
Rix v Mahony [2011] NSWSC 1308
Rix v Mahony [2012] NSWCA 241

Category:

Principal judgment

Parties:

Frederick George Rix (Appellant)
Lisa Jane Mahony (First Respondent)
Mark Edward Rix (Second Respondent)
Malcolm George Brown (Third Respondent)
Romano di Donato (Fourth Respondent)
Dennis Anthony Mahony (Fifth Respondent)

Representation:

Counsel:
Self-represented (Appellant)
Mr G R Kennett SC, Ms F Ramsay (First and Fifth Respondents)
No appearance (Second, Third and Fourth Respondents)
Solicitors:
Self-represented (Appellant)
Paul Wells & Co (First and Fifth Respondents)

File Number(s):

2011/86859

 Decision under appeal 

Citation:

[2011] NSWSC 1308

Date of Decision:

2011-11-02 00:00:00

Before:

Bergin CJ in Eq

File Number(s):

2011/86859

Judgment

1. CAMPBELL JA: I agree with Meagher JA.

1. MEAGHER JA: On 28 July 2011 a property in Gardeners Road, Rosebery was sold pursuant to an order under s 66G of the Conveyancing Act 1919. That order was made by Forster J in proceedings to which the appellant was a party: Rix v Mahony [2009] NSWSC 675. The registered proprietors of the property were the appellant's daughter, the first respondent, as to a three-quarter share, and her husband, the fifth respondent, as to a one-quarter share.

1. The appellant claimed to be entitled to 50 per cent of the gross proceeds of that sale on the basis that the first respondent had held a one-half share in the property on trust for the appellant and his wife (Mrs Rix) as joint tenants. As Mrs Rix had died in October 2010, at the time of the sale the first respondent held…