Supreme Court New South Wales Medium Neutral Citation: Potts v Potts (No 2) [2023] NSWSC 1479 Hearing dates: 30 November 2023 Date of orders: 30 November 2023 Decision date: 30 November 2023 Jurisdiction: Equity - Real Property List Before: Elkaim AJ Decision: Orders in accordance with the Short Minutes of Order signed and dated 30 November 2023. Catchwords: JUDGMENTS AND ORDERS – Amending, varying and setting aside – Consent orders – Consequential orders – retention of possible Capital Gains Tax Liability – other final orders Category: Consequential orders Parties: David Potts (First Plaintiff) Susan Cooper (Second Plaintiff) Rowena Potts (First Defendant) Janette Potts (Second Defendant) Representation: Counsel: Mr D Robertson (Plaintiffs) Mr C Cassimatis (Defendants) Solicitors: RSO Lawyers Pty Ltd (Plaintiff) Blue Print Law (Defendants) File Number(s): 2023/119750 JUDGMENT 1. On 8 November 2023 I made the following orders in the substantive hearing: 1. The court makes a declaration that the second plaintiff, the first defendant and the second defendant hold the property situated at 91 xxxxxxxxxxx (being the land comprising Lot xxxxxxxxxxxx) on trust for the first plaintiff. 2. The defendants are to pay the plaintiffs' costs of the proceedings. 3. The parties have leave to request any consequential orders arising from Order (1) or to vary the above costs order. 1. The parties have now requested consequential orders leading to the hearing before me today. The plaintiffs have proposed one of two sets of alternative draft orders. The defendants have suggested their own version. 2. The primary difference between the alternative orders proposed by the plaintiffs is that one set allows for the retention of a sum on account of the possible levying of capital gains tax. The other set, which is preferred by the plaintiffs, does not include such a retention. 3. The defendants' proposed orders are in many respects, similar to those proposed by the plaintiffs, but do differ in respect of the provisions regarding capital gains tax. In particular, the defendants proposed a retention for capital gains tax but made the retention dependent upon agreement between the parties as to whether or not the tax is payable. This proposal, I think, is inappropriate because the liability for capital gains tax is not a matter of agreement between the parties. 4. Other differences, proposed by the defendants, included the possibility of one of the defendants offering to purchase the property, apparently because of the concern that the current proposed purchasers might utilise an adjoining river for use by a seaplane. 5. After some discussion with the parties, in particular concerning the capital gains tax issue, the parties agreed to a formula which they incorporated in draft orders which I think are appropriate. 6. I also extended the time period in Order 1 and agreed with the defendants that there should be a clause requiring the first plaintiff to remain in possession of the property until it is sold. If the proposed sale fell through, and the first plaintiff decided to rent the property, it could have a capital gains tax implications for the defendants. 7. Accordingly, I make orders in terms of the Short Minutes of Order dated today and signed by me. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2023