Terry v Wilbow

[2025] NSWSC 1016

Supreme Court

New South Wales

Medium Neutral Citation:

Terry v Wilbow [2025] NSWSC 1016

Hearing dates:

4 September 2025

Date of orders:

4 September 2025

Decision date:

04 September 2025

Jurisdiction:

Equity - Real Property List

Before:

Hammerschlag CJ in Eq

Decision:

$14,118.80 to be paid out of Court to second defendants.

$432,211.18 to be paid out of Court to plaintiff.

First defendant pay plaintiff’s costs of the proceedings.

Catchwords:

EQUITY – TRUSTS – resulting trust – plaintiff and first defendant each contribute to the acquisition of real property which is registered in the plaintiff’s name – Court appoints trustees for sale – Property sold – net proceeds are in Court – determination of amounts to which plaintiff and first defendant are entitled

Category:

Principal judgment

Parties:

Deborah Anne Catherine Terry (Plaintiff)
Paul Kevin Wilbow (First Defendant)
Graeme Beattie and Aaron Kevin Lucan in their capacity as Statutory Trustees (Second Defendants)

Representation:

Counsel:
M Maconachie (Plaintiff)

Solicitors:
Roberts Crosbie Mortensen Lawyers (Plaintiff)
Frank Law (Second Defendants)

File Number(s):

2022/00312224

Publication restriction:

Nil

Ex Tempore JUDGMENT (Revised)

1. The plaintiff (Terry) and the first defendant (Wilbow) met each other in about 2012 and struck up a relationship.

2. They decided to buy a house at 35 Deptford Avenue, Kings Langley, NSW 2147 (the Property), which they then did, for a purchase price of $685,000. Title was registered solely in Terry’s name. On settlement, they moved in together, but their personal arrangement did not last and Terry moved out. Wilbow continued to reside there.

3. It is not in issue that of the purchase price, Wilbow contributed the deposit of $35,106.25 and a further $131,258.10 which was paid on settlement. The remainder of the purchase price ($547,219) was contributed by Terry, who borrowed it on mortgage from Macquarie Bank. Terry’s contribution is 76.69% and Wilbow’s 23.31%.

4. After a somewhat tortuous course of events, on 12 April 2023 the Court (Darke J), on the application of Terry with Wilbow’s consent, appointed statutory trustees, Graeme Beattie and Aaron Kevin Lucan (the Trustees) to sell the Property. The Court ordered Wilbow to vacate the Property no later than seven days before the completion date of the sale. Wilbow refused to cooperate in the sale process. More than that, the evidence establishes that not only did he neglect the Property but that he deliberately caused damage to it, amongst others by stripping out fixtures and removing stairs to a granny flat which had been constructed over the garage and which for a time had been rented out.

5. At the end of May 2023, the Trustees appointed a selling agent. The Trustees and the agent tried to discuss with Wilbow making the Property available for sale pursuant to the Court’s orders, but still he did not cooperate.

6. On 27 June 2023, he told the selling agent:

“I will be stripping all the improvements out of the house. That bitch is not going to benefit from all my hard work”.

7. In respect of the first statement, he was as good as his word.

8. In early July 2023, he told the selling agent:

“Get the fuck off my property or I will call the police and don’t come back here again”.

9. By the end of July 2023, Wilbow had not given them access to the Property.

10. This necessitated the Trustees having to approach the Court. They retained solicitors to act for them.

11. After a number of directions hearings, on 6 October 2023, Peden J (then Real Property List judge) made orders for the joinder of the Trustees to the proceedings and gave them leave to file a motion for a writ of possession for the Property. On 1 December 2023, Peden J made orders for vacant possession of the Property to be given to the Trustees and for the issue of a writ of possession stayed for 28 days. Her Honour ordered that the costs of the application be reserved with a view to the costs being determined prior to distribution of the sale proceeds.

12. On 15 January 2024, a Senior Deputy Registrar made an order for the Blacktown Sheriff’s office to execute the writ. The selling agent, a solicitor, a locksmith, a representative from an auction house and the sheriff attended the Property on 18 March 2024. They found it neglected and damaged. Windows had been removed and smashed; skirting boards and framing removed; interior and exterior doors removed; walls damaged; decking removed; lighting fixtures stripped from the ceiling; floors damages; carpets and underlays stripped out of bedrooms; panels removed from the pool fence; the granny flat stairs removed and a large amount of trash left on the Property. Subsequently, asbestos was found there and had to be removed.

13. The Trustees took steps to have the Property repaired and cleaned, and spent $46,912 doing that. Invoices are in evidence.

14. On about 25 September 2024, Terry received notice from Blacktown Council directing her to take preventative action in relation to asbestos found on the Property. It required her to remove the asbestos by 2 October 2024. Apparently, action was not taken within the time specified in the notice, which resulted in a fine of $15,105 being levied. Terry says she did not make payment of the fine because she did not have the financial capacity to do so. Apparently, someone lent her the money to pay it on the basis that she will repay when these proceedings are finalised.

15. The Property sold in February this year for $1,522,000. After deductions and a immaterial adjustment, the net balance from the sale was $886,147.67. The deductions included discharge of $577,651.56 owed by Terry to the National Australia Bank. As referred to earlier, the original amount of the mortgage was $547,219.

16. The principal proceedings were case managed predominantly by Peden J. However, the matter came before Williams J on 4 July 2025. In a well-constructed ex-tempore judgment her Honour made orders that the Trustees be permitted to deduct and retain from the proceeds of sale of the Property their reasonable costs and remuneration in the sum of $64,659.06, their reasonable expenses and disbursements incurred in relation to the sale of $58,427.87 and legal fees of $145,677.6, totalling $268,764.57. No doubt, a significant proportion of this amount is attributable to Wilbow’s bad behaviour.

17. After payment out of that amount, there now stands in Court $617,382.43.

18. Before the Court is an application by Terry for an order that her share of the money in Court be paid out to her.

19. The starting point is that her share of the equity in the Property is 76.69%. However, a number of adjustments need to be made.

20. First, she is not entitled out of the proceeds to receive the difference between the amount she put in via mortgage at the start and the amount ultimately paid to discharge it on settlement, which is greater by $30,432.56. The increase was caused by defaults in payment of the mortgage.

21. Second, Wilbow is not entitled to get the benefit that Terry bear a 76.69% share of the costs of repairing the Property which was damaged and neglected by him or the legal costs and other expenses incurred because of his obstructionist behaviour. Concomitantly, he is not entitled to get the benefit of bearing only 23.31%. To allow this, would be to permit him to take advantage of his own wrong.

22. In my view, the appropriate course to achieve the just, quick and cheap disposition of this matter (which has already gone on too long) is that the burden of paying the amount of $268,764.57 should be shared by Terry and Wilbow equally. This is a robust approach and probably benefits Wilbow, rather than Terry. But the exercise of examining each activity and attempting to work out whether it was necessitated in whole or in part by Wilbow’s conduct and if so, how much it cost would be lengthy, complex and expensive. The amounts in question (including the proceeds in Court) do not warrant it.

23. Terry originally sought full reimbursement of the asbestos fine, but this was, probably correctly, not pressed.

24. The Trustees have made an additional claim for remuneration costs and expenses for $14,118.80 to which I find they are entitled and which amount is to come off the net amount in Court and to be borne by Terry and Wilbow in their respective equity proportions.

25. The result of this approach is as follows.

26. Starting with the amount originally in Court of $886,147 the equity shares of the parties are Terry - $679,586.13 and Wilbow - $206,560.87. Deducting from that their respective shares of the amount of $14,118.80 which I will shortly authorise to be paid out to the Trustees of $10,827.40 and $3,291 leaves them, respectively, with $668,758.73 and $203,269.87.

27. After payment of the Trustees further expenses there will be $603,264.03 in Court of which their equity proportions are, respectively, $462,643.18 and $140,620.85. Adjusting for Terry’s mortgage liability requires taking the excess of $30,432 from her total and transferring it to Wilbow. This results in Terry being entitled to payment out of Court of $432,211.18 which I propose to order. These workings are set out in the Schedule.

28. Wilbow owes his erstwhile solicitors assessed costs of $31,759.75. The solicitors have filed a motion for an order that this amount be paid to them out of Wilbow’s entitlement. The motion will be stood over to a later date. Terry foreshadowed a motion that her costs also be met out of Wilbow’s entitlement.

29. I make the following orders:

1. Of the amount standing in Court in this matter, there is immediately to be paid out:

1. to the second defendants, $14,118.80; and

2. to the plaintiff, Deborah Anne Catherine Terry, $432,211.18.

2. The first defendant, Paul Kevin Wilbow, is to pay the plaintiff’s costs of the proceedings.

3. The proceedings are stood over before the Real Property List Judge on 26 September 2025.

Schedule

Amount in Court	Plaintiff (Terry)	First Defendant (Wilbow)	Second Defendants (Trustee)
$886,147.00	$679,586.13	$206,560.87
Additional Trustee Costs - Split by equity proportions	-$10,827.40	-$3,291.00	$14,118.40
$668,758.73	$203,269.87
Payment out by orders 4 July 2025 - Split 50-50	-$134,382.29	-$134,382.29	$268,764.57
$603,264.03	$534,376.45	$68,887.58	$282,882.97
Amount in Court - Split by equity proportions	$462,643.18	$140,620.85
Mortgage adjustment	-$30,432.00	$30,432.00
Total	$432,211.18	$171,052.85	$282,882.97

**********

Decision last updated: 05 September 2025