McKinlay v Woods [2024] NSWCA 122

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McKinlay v Woods [2024] NSWCA 122 Hearing dates: 20 March 2024 Decision date: 24 May 2024 Before: Leeming JA at [1]; White JA at [146]; Griffiths AJA at [147] Decision: 1. To the extent necessary, grant leave to appeal. 2. Appeal allowed in part. 3. In respect of the orders made on 28 July 2023, set aside part of order 1 namely, "AND the Plaintiff's contributions shall be indexed at the rate of %6.46 per annum (compounded) from the date on which those contributions were paid until 9 December 2019", and order 2. 4. Direct the parties to file and serve, within 21 days of today, agreed short minutes of order or, in default of agreement, proposed short minutes of order and short submissions not exceeding 5 pages in support of the orders for which they contend, with a view to this Court making final orders resolving this appeal on the papers. 5. No order as to the costs of the appeal, with the intention that the parties bear their and her own costs. Catchwords: EQUITY – constructive trust – failed joint endeavour – property acquired by one sister and her son using borrowed funds secured by mortgage – purpose of acquiring property was to provide a home for another sister following breakdown of her marriage – sister lived in home, paid outgoings and paid "rent" roughly equivalent to mortgage repayments – sister also paid $160,000 in reduction of principal from proceeds of her divorce settlement – whether primary judge erred in finding that sister and her son held property on constructive trust for themselves and other sister in equal shares after the payment of their respective relevant contributions – whether primary judge erred in assessing the quantum of the parties' contributions – whether primary judge erred in finding "mutual understanding" that sister had an undefined interest in property – whether primary judge erred in finding son was nominee of his mother – whether primary judge erred in indexing the sister's capital contribution of $160,000 Legislation Cited: Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: Anson v Anson [2004] NSWSC 766 Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Bosanac v Federal Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Galati v Deans [2023] NSWCA 13 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Green v Green (1989) 17 NSWLR 343 Koprivnjak v Koprivnjak [2023] NSWCA 2 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Lloyd v Tedesco (2002) 25 WAR 360; [2002] WASCA 63 Morris v Morris [1982] 1 NSWLR 61 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 NSW Trustee and Guardian v Togias (2022) 110 NSWLR 86; [2022] NSWCA 225 Shepherd v Doolan [2005] NSWSC 42 Watson v Foxman (1995) 49 NSWLR 315; [1995] NSWCA 497 West v Mead [2003] NSWSC 161; 13 BPR 24,431 Woods v McKinlay (No 2) [2021] NSWSC 1510 Woods v McKinlay (No 3) [2023] NSWSC 489 Zekry v Zekry [2020] VSCA 336 Zhang v Metcalf [2020] NSWCA 228 Category: Principal judgment Parties: Orlene Bernadette McKinlay (First Appellant) David Matthew McKinlay (Second Appellant) Antoinette Woods (Respondent) Representation: Counsel: J Horowitz (Appellants) SJ Stanton (Respondent)