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.
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…
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.
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AGLC
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.