Bowden v Bowden (No. 2) [2021] NSWSC 1625

Supreme Court New South Wales

Medium Neutral Citation: Bowden v Bowden (No. 2) [2021] NSWSC 1625 Hearing dates: 9 February, 16 March, 27 April & 14 May 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Jurisdiction: Equity Before: Slattery J Decision: Aspects of the reasoning in the referee's report of 25 March 2020 rejected as applying inconsistent standards to the plaintiff's and the defendants' evidence. Defendants given the option to disclaim findings in their favour based on that reasoning, or to seek a rehearing on those findings. Orders made pursuant to Conveyancing Act 1919, s 66G appointing trustees for the sale of the Nowra property but temporarily stayed. Costs reserved. Catchwords: CIVIL PROCEDURE – Alternative dispute resolution – the Court determines dispute concerning a joint venture between the plaintiffs and the defendants to develop land – Court finds a joint venture and refers the balance of the proceedings to a referee to determine the quantum of each party's contribution to the venture – referee's report received quantifying the respective financial and non-financial contributions of the plaintiffs and the defendants – Court's use of report – the defendants seek orders that the report be adopted – the plaintiffs resist orders for the adoption of the report – whether the referee's report fails to account for financial contributions made by the plaintiffs towards improvement of the real property, denies procedural fairness to the plaintiffs, fails to take into account the plaintiffs' evidence, or fails to disclose adequate reasoning – whether the Court should reject, vary or adopt the report pursuant to Uniform Civil Procedure Rules 2005, r 20.24. LAND LAW – Application for appointment of trustees for sale of land pursuant to Conveyancing Act 1919, s 66G – property owned by first plaintiff and first defendant in equal shares – one of the co-owners resists the application – outstanding dispute between the parties in relation to various property related payments and contributions made by one of the co-owners. Legislation Cited: Conveyancing Act 1919, Part IV, Division 6, ss 66G and 66F Uniform Civil Procedure Rules 2005, Part 20, Division 3, rr 20.23, 20.24, 20.24(1)(a), 55.7, 55.7(2)(a)-(d) Cases Cited: ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209 Allen v Schneider [1977] 2 NSWLR 685 ALYK (HK) Ltd v Caprock Commodities Trading Pty Ltd [2015] NSWSC 1006 Anson v Anson (2004) 12 BPR 22,303 Baumgartner v Baumgartner (1987) 164 CLR 137 Bermria Pty Ltd v Homebush Abattoir Corporation (1991) 22 NSWLR 600 Bowden v Bowden [2020] NSWSC 1863 Brennan v Duncan [2006] NSWSC 674 Chalmers v Pardoe [1963] 3 All ER 552 Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2003] NSWSC 547 Deancrest Nominees Pty Ltd v Nixon (2007) 25 ACLC 1681 Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Elders Trustee & Executor Co Ltd v E G Reeves Pty Ltd (1987) 78 ALR 193 Forgeard v Shanahan (1994) 35 NSWLR 206 Franks v Berem Constructions Pty Ltd [1998] NSWCA 87 James v James [2017] NSWSC 1309 Milling v Hardie [2014] NSWCA 163 Morris v Morris [1982] 1 NSWLR 61 Muschinski v Dodds (1984) 160 CLR 583 Ngatoa v Ford (1990) 19 NSWLR 72 Plimmer v Wellington Corporation (1884) 53 LJPC 105 Re Jackson and the Conveyancing Act (1951) 52 SR (NSW) 42 Re Permanent Trustee Nominees (Canberra) Ltd [1989] 1 Qd R 314 Ryde City Council v Tourtouras [2007] NSWCA 218 Stephens v Debney (1959) 60 SR (NSW) 468 Sullivan v Sullivan (2006) 13 BPR 24,755 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Tryhaz Pty Ltd v Fielders Engineers Pty Ltd [2005] NSWSC 906 Walsh v Walsh [2012] NSWCA 57 West v Mead (2003) 13 BPR 24,431 Texts Cited: RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) Young, Croft and Smith, On Equity (Thomson Reuters, Law Book Co, 2009) at ([6.800] Category: Consequential orders Parties: First Plaintiff: Kevin Alwyn Bowden Second Plaintiff: Trustee for the Bowden Family Trust First Defendant: Julie Gaye Bowden Second Defendant: Ian Bowden Representation: Counsel: First and Second Defendant: D. Eardley