Ryan v Dries

Case [2002] NSWCA 3


CITATION: Ryan v. Dries [2002] NSWCA 3 revised - 7/02/2002
FILE NUMBER(S): CA 40261/01
HEARING DATE(S): 13 November 2001
JUDGMENT DATE:
6 February 2002

PARTIES :


Gregory James Ryan - appellant
Joanne Maree Dries - respondent
JUDGMENT OF: Sheller JA at 1; Giles JA at 8; Hodgson JA at 22
LOWER COURT JURISDICTION : Supreme Court - Equity Division
LOWER COURT
FILE NUMBER(S) :
ED2754/99
LOWER COURT
JUDICIAL OFFICER :
Master McLaughlin
COUNSEL: P. Connor for appellant
D.L. Warren for respondent
SOLICITORS: Bayside Solicitors, Ramsgate for appellant
Cassidy Gibson Howlin, Cronulla for respondent
CATCHWORDS: EQUITY - Maxims - "He who seeks equity must do equity" - REAL PROPERTY - Co-ownership (tenancy in common) - Incidents - Accounting in respect of occupation - Accounting in respect of repairs, maintenance, and outgoings, including mortgage repayments - TRUSTS AND TRUSTEES - Resulting trusts - Acquisition of land - Contributions to purchase money - Whether costs of acquisition included - PROCEDURE - Pleadings - Need for precision where claims made in the alternative to a claim for a broad statutory remedy. D.
CASES CITED:
Little v. Little (1988) 15 NSWLR 43 at 45A-46D
Currie v. Hamilton [1984] 1 NSWLR 687 at 691
In Re Pavlou [1993] 1 WLR 1046
Biviano v. Natoli (1998) 43 NSWLR 695
Luke v. Luke (1936) 36 SR(NSW) 310
Teasdale v. Sanderson (1864) 33 Beav 534; 55 ER 476
Brickwood v. Young (1905) 2 CLR 387
Forgeard v. Shanahan (1994) 35 NSWLR 206 at 221-6
Strelly v. Winson (1685) 1 Vern 297; 25 ER 480
Leigh v. Dickerson (1884) 15 QBD 60
In re Jone; Farrington v. Forrester [1893] 2 Ch 461 at 477-8
McCormick v. McCormick (1921) NZLR 384 at 387-8
DECISION: 1. Appeal allowed; 2. Set aside orders 2 and 3, and declaration 1, below; 3.Order that the appellant pay to the respondent within 28 days the sum of $133,070.00 (less any amount paid since 23rd March 2001) plus interest at Supreme Court rates from 23rd June 2001 on any outstanding balance, and that in return the respondent transfer to the appellant her interest in the property 255 Sylvania Road, Gymea; 4. Order that the respondent pay the appellant's costs of the appeal incurred since 9th August 2001 and that she have a suitors' fund certificate if otherwise entitled, unless within 14 days either party provides to the Court written submissions on costs, in which event the Court will determine costs on the basis of those submissions and any submissions from the other party received within a further 7 days.




                          CA 40261/01
                          ED 2754/99
                          SHELLER JA
                          GILES JA
                          HODGSON JA

RYAN V. DRIES


Judgment

1 SHELLER JA: I have had the benefit of reading in draft the reasons for judgment of Hodgson JA and of Giles JA. For the reasons given by Hodgson JA I agree with the orders he proposes noting, as his Honour has done, that further submissions may be appropriate so that this Court can deal with the costs of the appeal. However, I wish…

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Ryan v Dries [2002] NSWCA 3
Case
[2002] NSWCA 3
Decision Date

CaseChat Overview and Summary

The case of *Ryan v Dries* concerned a dispute between co-owners of a property at 255 Sylvania Road, Gymea. The appellant, Mr Ryan, sought to acquire the respondent's, Ms Dries', interest in the property. The primary dispute revolved around the financial adjustments to be made between the parties to achieve this transfer of ownership, including claims for occupation rent, contributions to mortgage repayments, and other outgoings. The matter was heard in the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal included whether Ms Dries was liable to account to Mr Ryan for an occupation rent, and conversely, whether Mr Ryan was liable to account to Ms Dries for contributions made towards mortgage repayments and other outgoings in respect of the property. The court also considered the application of the equitable maxim "he who seeks equity must do equity" and the principles governing resulting trusts in the context of contributions to the acquisition of land, including whether costs of acquisition were to be included. Furthermore, the court addressed the need for precision in pleadings when alternative claims are made.

The Court of Appeal allowed the appeal, setting aside certain previous orders and declarations. It ordered that Mr Ryan pay Ms Dries the sum of $133,070.00, with interest, within 28 days. In return for this payment, Ms Dries was to transfer her interest in the property to Mr Ryan. The court also made orders regarding the costs of the appeal, allowing for submissions from the parties to determine the final allocation of costs.

Orders

Orders of the court

1. Appeal allowed; 2. Set aside orders 2 and 3, and declaration 1, below; 3.Order that the appellant pay to the respondent within 28 days the sum of $133,070.00 (less any amount paid since 23rd March 2001) plus interest at Supreme Court rates from 23rd June 2001 on any outstanding balance, and that in return the respondent transfer to the appellant her interest in the property 255 Sylvania Road, Gymea; 4. Order that the respondent pay the appellant's costs of the appeal incurred since 9th August 2001 and that she have a suitors' fund certificate if otherwise entitled, unless within 14 days either party provides to the Court written submissions on costs, in which event the Court will determine costs on the basis of those submissions and any submissions from the other party received within a further 7 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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