Woods v McKinlay (No 3) [2023] NSWSC 489

Supreme Court New South Wales

Medium Neutral Citation: Woods v McKinlay (No 3) [2023] NSWSC 489 Hearing dates: 28 April 2023; further written submissions ending 5 May 2023 Date of orders: 9 May 2023 Decision date: 09 May 2023 Jurisdiction: Equity Before: Parker J Decision: See [17]-[19] Catchwords: EQUITY – constructive trusts – failed joint endeavour – form of relief – whether joint endeavour contributions should be indexed Legislation Cited: Nil Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137 Makaritis v Makaritis (No 3) [2023] NSWSC 409 Muschinski v Dodds (1985) 160 CLR 583 Woods v McKinlay (No 2) [2021] NSWSC 1510 Texts Cited: Nil Category: Consequential orders Parties: Antoinette Woods (Plaintiff/Cross Defendant) Orlene Bernadette McKinlay (First Defendant/Frist Cross-Claimant) David Matthew McKinlay (Second Defendant/Second Cross-Claimant) Representation: Counsel: SJ Stanton (Plaintiff/Cross-Defendant) J Horowitz (Defendants/Cross-Claimants)

Solicitor: Arch Law (Australia) Pty Ltd (Plaintiff/Cross-Defendant) Beswick Lynch Lawyers (Defendants/Cross-Claimants File Number(s): 2019/263271 Publication restriction: Nil

JUDGMENT 1. In November 2021, following the trial in these proceedings, I delivered reasons for judgment setting out my conclusions on the parties' claims: Woods v McKinlay (No 2) [2021] NSWSC 1510. I concluded that the plaintiff had made out her case for the imposition of a constructive trust over the property which is the subject of the proceedings. I also set out my view, which was subject to further submission from the parties, on the form of the account which would take place under the constructive trust. 2. The parties did not, following delivery of my decision, proceed to have the Court make formal declarations and orders to give effect to the conclusions that I had reached. Nor did they make further submissions on that question. Instead, they embarked themselves on an informal process of conducting the account. The property was sold and as a result of consent orders between the parties some funds were distributed to either side. What now remains is to finalise the distribution of the proceeds. For that purpose, the parties have managed to agree all of the outstanding accounting issues expect for one, which is the subject of this judgment. 3. The judgment assumes familiarity with my November 2021 judgment, paragraphs of which I will refer to as "J2". As in my November 2021 judgment, I will, for convenience and without disrespect, refer to the parties by their given names. 4. The plaintiff ("Antoinette") and the first defendant ("Orlene") are sisters. The second defendant ("David") is Orlene's son. The proceedings concern a residential property at Telopea, near Parramatta. The property was purchased in the names of Orlene and David in 2001 but, on my findings, it was purchased as a home for Antoinette. 5. The chronology of the key events is set out at J2 [17]-[59]. I concluded that the failed joint endeavour doctrine, as described by the High Court in Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137, was applicable: see J2 [227]-[261]. Given this conclusion, the appropriate remedy was the imposition of a remedial constructive trust for the sale of the property, the repayment of the parties' respective contributions, and the division of the proceeds between them: see J2 [262]-[290].