Perkins v Carey [2023] NSWSC 210

Supreme Court New South Wales

Medium Neutral Citation: Perkins v Carey [2023] NSWSC 210 Hearing dates: 13 – 14 February 2023 Decision date: 14 March 2023 Jurisdiction: Equity - Real Property List Before: Peden J Decision: Orders appointing trustees for sale made under s 66G Conveyancing Act 1919 (NSW): see [127] Catchwords: LAND LAW — Co-ownership — Statutory trust for sale — Where co-owners are mother and adult son holding as tenants in common in equal shares — Whether son holds 50% on a purchase money resulting trust for mother — Where mother diagnosed with Alzheimer's Disease and did not give evidence — Held that mother did intend to gift 50% of Property EQUITY — Trusts and trustees — Resulting trusts — Presumption of resulting trust — Presumption of advancement — Where presumptions are not decisive — Where evidence did not establish that mother intended son to hold 50% of property on trust — Where the appropriate orders are mother and son each are entitled to 50% Legislation Cited: Civil Procedure Act 2005 (NSW) s 66 Conveyancing Act 1919 (NSW) ss 66F, 66G, 66I Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 Bosanac v Commissioner of Taxation [2022] HCA 34 Carey v Carey [2020] NSWSC 765 Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 Haset Sali v SPC Limited and Anor (1997) 67 ALJR 841 Kardos v Sarbutt (No 2) [2006] NSWCA 206 Koprivniak v Koprivinak [2023] NSWCA 2 Muschinski v Dodds (1985) 160 CLR 583 Pascoe v Dyason [2011] NSWSC 1217 Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: William Jeremy Perkins (Plaintiff) Gregory Colin Carey (Defendant, in person) Representation: Counsel: B DeBuse (Plaintiff)