Nelson v Nelson [1995] HCA 25

High Court of Australia Deane, Dawson, Toohey, McHugh and Gummow JJ Nelson v Nelson (FC95/046) [1995] HCA 25

ORDER

1. Appeal allowed.

2. Orders of the Court of Appeal set aside and in place thereof order that:

(i) the appeal be allowed;

(ii) declarations 1, 2 and 3 made by Master Macready be set aside;

(iii) it be declared that if on or before 9 January 1996 the first appellant shall have paid to the Commonwealth of Australia the amount (the Benefit Sum) agreed by the solicitors for the first appellant and for the first respondent to be the present value, over the term of the loan agreement dated 30 August 1989 and for the advance by Westpac Banking Corporation (the Bank) to the first appellant of $25,000, of the difference between the subsidised rate which applied pursuant to the Defence Service Homes Act 1918 Cth and that rate which, upon its usual terms, the Bank would have charged the first appellant on an advance of $25,000 over the same period and for the same purpose, the second respondents then hold the whole of the balance of the proceeds of the sale of the property known as 5 Bent Street, Petersham, New South Wales, together with any interest earned thereon, upon trust for the first appellant;

(iv) moneys which become held by the second respondents upon trust for the first appellant as provided in the declaration in order (iii) be paid by the second respondents to the first appellant or as she may direct;

(v) it be declared that if the Benefit Sum has been ascertained as aforesaid but the first appellant has not paid it to the Commonwealth, as provided in order (iii) hereof, on or before 9 January 1996, the second respondents then hold the balance of the proceeds of the sale specified in that declaration, as to the Benefit Sum upon trust for the first respondent and as to the remainder (including interest earned upon the whole of the said balance) upon trust for the first appellant;