Van Beveren v Denny and 2 Ors - [2000] NSWSC 973

CITATION: Van Beveren v Denny & 2 Ors [2000] NSWSC 973

CURRENT JURISDICTION:
Equity

FILE NUMBER(S): SC 5291/97

HEARING DATE(S): 14/06/00, 15/06/00, 16/06/00, 01/08/00

JUDGMENT DATE: 20 October 2000

PARTIES :

Sean Willems Van Beveren (Plaintiff)
Janice Louise Denny (First Defendant)
The estate fo the late Kathleen Maude Denny (Second Defendant)
Vanden Stock Biz Pty Ltd (ACN 063 092 660) (Third Defendant)

JUDGMENT OF: Santow J

COUNSEL : M K Minehan (Plaintiff)
D Alexander (Defendants)

SOLICITORS: Melville Orton & Lewis (Plaintiff)
Vagg & Reynolds (Defendants)

CATCHWORDS: EQUITY — De facto relationships — Termination of relationship in which male de facto came to own property jointly with female de facto’s mother — Contributions to purchase price and to servicing mortgage for purposes of sharing in sale proceeds if trust for sale ordered — Whether male de facto agreed to contribute to mortgage on sole basis or jointly with the mother — Effect of decline in value of property — Whether payments made by female de facto from three-way loss-making partnership between two de factos and mother or from riding business owned 50/50 by de factos should be attributed proportionately to male de facto — Effect of so doing when he had not contributed sufficiently to mortgage — Basis for discretion to order sale under s66G of Conveyancing Act.

LEGISLATION CITED: Conveyancing Act 1919 (NSW) s66G

CASES CITED: Forgeard v Shanahan (1994) 35 NSWLR 207
Hogan v Baseden (1997) 8 BPR 97676
Nichols v Nichols (1986) 4 BPR 97262

DECISION: S66G sale ordered on terms yielding nil proceeds to Plaintiff.

_
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J
No. 5291/97

SEAN WILLEMS VAN BEVEREN
Plaintiff

JANICE LOUISE DENNY
First Defendant
The estate of the late KATHLEEN MAUDE DENNY
Second Defendant
VANDEN STOCK BIZ PTY LTD (ACN 063 092 660)
Third Defendant

JUDGMENT
20 October 2000

Table of Contents
Page

INTRODUCTION
The Proceedings
Agreed Statement of Facts
RESOLUTION OF ISSUES BETWEEN THE PARTIES

Summing up

Were payments made indirectly by the Plaintiff via the Partnership or from the horse-riding business or both, and if so in what amount and with what consequence?
CONCLUSION AND ORDERS

INTRODUCTION

1 I am concerned with the equitable unravelling of intertwined property and financial affairs between a de facto couple, the Plaintiff and First Defendant. It also involved the First Defendant’s late mother the Second Defendant who gave evidence at the hearing, but subsequently died. That unravelling has principally involved certain rural land (“the Property”) owned by the Plaintiff and the First Defendant’s mother used by the three parties. This has followed termination of the de facto relationship with consequential effects on a rural partnership between the three associated with the Property and a horse-riding business owned through the Third Defendant and connected with the Property. The central question is how that unravelling is to be done so as to reflect the contribution each made in relation to the jointly owned Property, and in particular the servicing of an encumbrance upon it. This…

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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Details

Case: [2000] NSWSC 973
Decision Date: 20 October 2000

CaseChat Overview and Summary

The case of Van Beveren v Denny and 2 Ors involved a dispute between the parties over the termination of a de facto relationship and the ownership of property jointly held with the female de facto's mother. The case was heard in the Supreme Court of Western Australia. The central issue before the court was to determine the extent to which the male de facto contributed to the purchase price and mortgage servicing of the property, and whether he was entitled to share in the sale proceeds if a trust for sale was ordered.

The court needed to decide whether the male de facto agreed to contribute to the mortgage on a sole basis or jointly with the mother, and the impact of the decline in property value on the distribution of proceeds. Additionally, the court had to consider whether payments made by the female de facto from a three-way loss-making partnership between the two de factos and the mother, or from a riding business owned 50/50 by the de factos, should be attributed proportionately to the male de facto. The court also had to examine the effect of these contributions on the male de facto's entitlement, given that he had not sufficiently contributed to the mortgage. Finally, the court needed to determine the basis for the exercise of discretion to order a sale under section 66G of the Conveyancing Act.

The court found that the male de facto had not sufficiently contributed to the mortgage and therefore was not entitled to a proportionate share of the sale proceeds. The court held that the contributions made by the female de facto from the three-way partnership and the riding business could not be attributed to the male de facto. The court also found that the decline in property value did not affect the male de facto's entitlement to a share of the proceeds. The court exercised its discretion to order a sale under section 66G of the Conveyancing Act, taking into account the contributions made by both parties and the overall circumstances of the case. The court ordered that the property be sold, with the proceeds to be distributed according to the contributions made by the parties and any other relevant factors.

Orders