Fragar v Fragar (No 2) [2024] NSWSC 348

Supreme Court New South Wales

Medium Neutral Citation: Fragar v Fragar (No 2) [2024] NSWSC 348 Hearing dates: On the papers Date of orders: 4 April 2024 Decision date: 04 April 2024 Jurisdiction: Equity Before: Hmelnitsky J Decision: (1) Dismiss the summons. (2) Declare that the plaintiff holds her legal interest in the two blocks of farmland known as Talgong, folio identifiers 6/721739 and 13/724609 on trust for the cross-claimants trading as the Fragar Partnership. (3) Declare that the plaintiff holds her legal interest in the land identified in folio identifier 1/1208752 subject to a resulting trust for the cross-claimants trading as the Fragar Partnership. (4) Order that the plaintiff's legal interest in Talgong (folio identifiers 6/721739, 13/724609 and 1/1208752) be transferred to the cross-claimants within 28 days of the making of these orders. (5) Order that the cross-claimants indemnify the plaintiff for: (a) the costs, expenses and any transfer duty for, or associated with, the transfer of Talgong; and (b) the liability to pay any loans secured against Talgong, rates, duties or expenses for Talgong. (6) Declare that the cross-claimants trading as the Fragar Partnership are indebted to the plaintiff in the sum of $602,391.03 and are liable to pay this amount to the plaintiff within 28 days of the making of these orders. (7) The further amended cross-claim is otherwise dismissed. (8) Order the plaintiff/cross defendant pay 75% of the defendant's and cross claimants' costs of the proceedings, on an ordinary basis, as agreed or assessed. (9) Grant liberty to any party to apply within three months of entry of these orders, on 7 days notice, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing these orders. Catchwords: COSTS – Party/Party – Court's discretion – Where the plaintiff has had a measure of success JUDGMENTS AND ORDERS – Interest – Pre-judgment interest – Where plaintiff seeks interest on a loan – Whether to grant interest under s 100 of the Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Cases Cited: Beck v Henley [2014] NSWCA 201 Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56 CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) (2005) 224 CLR 98; [2005] HCA 53 Falkner v Bourke (1990) 19 NSWLR 574 Fragar v Fragar [2024] NSWSC 193 Gray v O'Donnell [2009] NSWSC 259 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Ogilvie v Adams [1981] VR 1041 Smith's Snackfood Co Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 470 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 Category: Consequential orders Parties: Linda May Fragar (Plaintiff/Cross-Defendant) Jeffrey Evan Fragar (Defendant/First Cross-Claimant) Katherine Margaret Fragar (Second Cross-Claimant) Representation: Counsel: