Chetwynd & Ors v Rose [2021] NSWCA 193

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chetwynd & Ors v Rose [2021] NSWCA 193 Hearing dates: 17 March 2021 Date of orders: 31 August 2021 Decision date: 31 August 2021 Before: Meagher JA [1] Leeming JA [2] White JA [3] Decision: (1) Appeal allowed in part. (2) Set aside orders 7(b), 8 and 9 made on 16 July 2020 and vary order 7(a) by deleting the words "subject to paragraph 7(b) below". (3) Stay the operation of order 7(a) made on 16 July 2020 pending determination of the order to be made as to the costs of the proceedings below. (4) Declare that in addition to the adjustment provided for by the declaration in order 1 made on 16 July 2020, the first and second appellants are entitled to adjustments in the accounts of the third appellant in the sum of $47,093 by that sum being debited to the loan account of the respondent and credited to the loan account of the first and second appellants. (5) Otherwise dismiss the appeal. (6) Make no order as to the costs of the appeal to the intent that the parties bear their own costs of the appeal. (7) Order that within 14 days the appellants file and serve written submissions of no more than seven pages as to what orders should be made with respect to the costs of the proceedings below, including as to whether any costs ordered in favour of the respondent should be assessed on a gross sum basis and should be deducted from the appellants' share of the net proceeds of sale the subject of order 7 made on 16 July 2020. (8) Direct that within 14 days thereafter the respondent file and serve written submissions of no more than seven pages on the matters referred to in order 7. (9) Any submissions in reply by the appellants (to be of no more than five pages) be filed and served within seven days thereafter. Catchwords: EQUITY – Trusts and trustees – Express trusts – Declaration of trust – Where only evidence of trust was a conversation purported to have occurred 23 years before hearing – Where evidence inconsistent with later documentary evidence – No issue of principle LAND LAW – Co-ownership – Rights between co-owners – Account – Where accounts showed beneficial co-owners paid "rent" to third beneficial co-owner – Where accounting secured a tax advantage for the third co-owner – Where no evidence that the accounting was intended to reflect payment of an occupation fee – Whether beneficial co-owners entitled to adjustment Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Income Tax Assessment Act 1936 (Cth) Div 7A Cases Cited: Chetwynd v Rose (No 2) [2020] NSWSC 870 Chow v Chow (No 2) [2015] NSWSC 1348 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Kardos v Sarbutt (No 2) [2006] NSWCA 206 Lee v Lee (2019) 266 CLR 129; [2009] HCA 28 Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679; [2016] HCA 22 Category: Principal judgment Parties: Brian Chetwynd (First Appellant) Jill Chetwynd (Second Appellant) Wincot Pty Ltd (Third Appellant) Glynis Rose (Respondent) Representation: Counsel: First Appellant in person and representing Second and Third Appellants by leave Mr H Stowe (Respondent)