Clegg v Rowlands [2022] NSWSC 1203

Supreme Court New South Wales

Medium Neutral Citation: Clegg v Rowlands [2022] NSWSC 1203 Hearing dates: 29 August – 31 August 2022 Decision date: 08 September 2022 Jurisdiction: Equity Before: Peden J Decision: 1. Leave is granted to the parties to jointly approach my Associate within 7 days of these orders, should they have agreed on alternative orders for the purposes of the sale of the land comprised in Certificate of Title Folio 131/1077381 (the Land). 2. Should the leave granted in order 1 not be exercised, then: a. Christopher John Palmer and Liam Bailey of Level 9/66 Clarence Street Sydney (the Trustees) be appointed trustees of the Land as trustees for statutory sale under section 66G of the Conveyancing Act 1919 (NSW). b. The Land be vested in the Trustees subject to any incumbrances affecting the entirety of the Land but free from incumbrances (if any) affecting any undivided share or shares therein to be held by the Trustees upon statutory trust for partition under Division 6 of Part 4 of the Conveyancing Act 1919 (NSW). c. Upon completion of the sale the Trustees: i. Pay any properly incurred legal fees to any solicitor or conveyancer; ii. Pay any properly incurred commission due to the real estate agent who affects the sale; iii. Pay any statutory duties or charges; iv. Pay the Trustees' charges at rates specified in the consent to act as trustee for each of them; v. Pay the Plaintiffs the amount obtained by the following formula: $316,000 multiplied by 3% multiplied by [the number of days between 29 January 2013 and the date of completion] divided by 365; vi. Pay any other costs properly related to the sale; vii. After orders (2)(c)(i)-(vi), pay the remainder to the parties in their registered proportions. 3. The Cross-Claim is dismissed. 4. The Defendant pay the Plaintiffs' costs of the Summons and Cross-Claim as agreed or assessed. Catchwords: EQUITY — Unconscionable conduct — Special disability or disadvantage — Whether unconscientious advantage taken — Where brother provided funds to purchase and mortgage of property and wanted to be on title and sister purchased property in her own name — Whether sister's entry into deed of transfer and declaration of trust in favour of brother should be declared void ab initio — Whether sister suffered special disability by way of financial hardship and ill-health — Whether brother aware of special disability and took unconscientious advantage Legislation Cited: Conveyancing Act 1919 (NSW) s 66G Cases Cited: ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 Anjoul v Anjoul [2021] NSWSC 592 Australia and New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 Blomley v Ryan (1956) 99 CLR 362 Bridgewater v Leahy (1998) 194 CLR 457 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Gray v Gray [2004] NSWCA 408 Ngatoa v Ford (1990) 19 NSWLR 72 Petelin v Cullen (1975) 132 CLR 355 Ross v Ross [2010] NSWCA 301 Schmierer v Taouk [2004] NSWSC 345 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 Thorne v Kennedy (2017) 263 CLR 85 Texts Cited: J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5th ed, LexisNexis 2014) Category: Principal judgment Parties: Roger Clegg (First Plaintiff and First Cross-Defendant) Gwendoline Heather Clegg (Second Plaintiff and Second Cross-Defendant) Jane Rowlands (Defendant and Cross-Claimant) Representation: Counsel: I Hoskinson (Plaintiffs and Cross-Defendants) B Burke (Defendant and Cross-Claimant)