Savieri v Brown - [2008] NSWSC 1210

CITATION: Savieri v Brown [2008] NSWSC 1210

HEARING DATE(S): 8 May 2008

JUDGMENT DATE :
20 November 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refer to para 53 of judgment.

CATCHWORDS: BANKRUPTCY – effect of bankruptcy on property and proceedings – whether proceedings were in respect of a provable debt – plaintiff alleged to have forfeited his equitable interest in the property prior to bankruptcy – defendant the legal owner then asserted his right to possession – proceedings not in respect of a provable debt - REAL PROPERTY – equitable co-ownership – each co-owner entitled to occupy the whole property – whether plaintiff’s equitable interest forfeited – whether defendant entitled to judgment for possession

LEGISLATION CITED: Bankruptcy Act 1966 (Cth)
Bankruptcy Act 1914 (UK)

CASES CITED: Ezekiel v Orakpo [1977] QB 260
Thrift v Thrift (1975) 10 ALR 332

TEXTS CITED: Fisher & Lightwood’s Law of Mortgage, 2nd Aust ed (2006)
Peter Butt, Land Law, 5th ed Lawbook Co (2006)
McDonald, Henry & Meek: Australian Bankruptcy Law & Practice (looseleaf), Lawbook Co

PARTIES: David Julian Savieri
v
Colin Raymond Brown

FILE NUMBER(S): SC 6482/06

COUNSEL: Plaintiff: In person
Defendant: M P Cleary

SOLICITORS: Plaintiff: n/a
Defendant: Stacks, The Law Firm

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 20 November 2008

6482/06 David Julian Savieri v Colin Raymond Brown

JUDGMENT

1 HIS HONOUR: The defendant and cross-claimant, Mr Brown, seeks a judgment for possession of a property located at 560 Crowdy Head Road, Crowdy Head (“the Crowdy Head property”). The plaintiff and cross-defendant, Mr Savieri, is in occupation of part of the property.

2 The plaintiff and defendant are brothers. In 2001, they purchased the Crowdy Head property in equal shares as tenants in common. The property consists of two separate titles of approximately one acre each. On one block of land, two units are constructed. The plaintiff and his son occupy one unit. The defendant and his wife occupy the other. The property was purchased for $379,000. Part of the purchase price was advanced by the Commonwealth Bank on first mortgage security. The plaintiff and the defendant were joint borrowers.

3 It was agreed between the plaintiff and the defendant that they would make equal contributions to the purchase price and the repayment of the Commonwealth Bank loan.

4 The plaintiff and defendant funded the balance of the purchase price either from their own resources or by borrowing as individuals. The plaintiff borrowed $11,000 from Citibank Pty Ltd (“Citibank”). It was common ground that, at least initially, as between the plaintiff and the defendant, the defendant would be responsible for paying moneys due to Citibank.

5 The plaintiff moved into one of the units in January 2002. Until about the end of 2004, the defendant made his contribution to the Commonwealth Bank mortgage by paying his share of the repayments to the plaintiff directly or into the plaintiff’s bank account. Following the breakdown of the plaintiff’s domestic relationship with his de facto…

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 Savieri v Brown

Details

AGLC: Savieri v Brown [2008] NSWSC 1210
Case: [2008] NSWSC 1210
Decision Date: 20 November 2008

CaseChat Overview and Summary

Savieri v Brown involved a dispute over the ownership and right to possession of a property between the plaintiff, who was the equitable co-owner, and the defendant, who was the legal owner. The plaintiff had allegedly forfeited his equitable interest in the property prior to being declared bankrupt, and the defendant subsequently asserted his right to possession. The matter was heard in the Federal Court of Australia. The central legal issue was whether the proceedings were in respect of a provable debt, and if not, whether the plaintiff's equitable interest had indeed been forfeited and if the defendant was entitled to a judgment for possession.

The court considered the nature of the proceedings and whether they constituted a provable debt for the purposes of bankruptcy law. It was determined that the proceedings were not in respect of a provable debt. The court further examined the principles of equitable co-ownership, noting that each co-owner is entitled to occupy the entire property. The court held that the plaintiff had not forfeited his equitable interest and that the defendant's assertion of right to possession was not justified. Consequently, the court ruled in favour of the plaintiff, finding that the defendant was not entitled to judgment for possession of the property.

The Federal Court of Australia found that the proceedings were not in respect of a provable debt, and that the plaintiff had not forfeited his equitable interest in the property. The court held that the defendant's assertion of right to possession was unwarranted and that the plaintiff remained entitled to occupy the property. As a result, the court dismissed the defendant's claim for possession, and the plaintiff retained his equitable interest in the property.

Orders