Hogden v Hogden [2023] NSWSC 1149

Supreme Court New South Wales

Medium Neutral Citation: Hogden v Hogden [2023] NSWSC 1149 Hearing dates: 18 September 2023 Decision date: 22 September 2023 Jurisdiction: Equity - Real Property List Before: Peden J Decision: See [34] Catchwords: EQUITY — Trusts and trustees — Constructive trusts — Whether evidence demonstrates that defendant and deceased held a common intention that property be held as joint tenancy — Where defendant and deceased registered as tenants in common — Where evidence of alleged conversation with deceased uncorroborated LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where orders made pursuant to s 66G Conveyancing Act 1919 (NSW) Legislation Cited: Conveyancing Act 1919 (NSW) Pt 4 Div 6, s 66G Cases Cited: Allen v Snyder (1989) 17 NSWLR 343 Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd (2015) 18 BPR 35 Koprinvjak v Koprinvjak [2023] NSWCA 2 Plunkett v Bull (1915) 19 CLR 544 Stibbard-Leaver v Leaver [2021] NSWSC 65 Texts Cited: Nil Category: Principal judgment Parties: Suzanne Marie Hogden (Plaintiff) Gregory Francis Allen Hogden (Defendant) Representation: Counsel: D Price (Plaintiff) L Byrne (Defendant)

Solicitors: McPhee Kelshaw Pty Ltd (Plaintiff) Coleman Greig Lawyers (Defendant) File Number(s): 2021/00353218 Publication restriction: Nil

Judgment 1. This is a dispute between siblings concerning a half-interest in a property at Big Jacks Creek, which is approximately 90km south-west-south of Tamworth (Property). 2. The plaintiff, Suzanne Hogden, seeks orders for a trustee sale of the property pursuant to s 66G of the Conveyancing Act 1919 (NSW). Since November 2019, she has been the registered proprietor of half of the property, as executrix of the will of her father, Allan James Hogden. When he died in February 2019, the deceased held his half-share as a tenant in common with his son, the defendant, Gregory Hogden. 3. The defendant resists the orders for sale, asserting that he and the deceased had a common intention that the Property would be held by them as joint tenants, and that such intention ought to be recognised by a declaration of a "common intention constructive trust". 4. The only evidence of the alleged common intention is conversations with the deceased, to which the defendant deposes. Therefore, the defendant's case turns on whether he can establish on the balance of probabilities that those conversations took place, and whether the other elements of a common intention constructive trust are made out.