Togias v State of New South Wales [2024] NSWSC 703

Supreme Court New South Wales

Medium Neutral Citation: Togias v State of New South Wales [2024] NSWSC 703 Hearing dates: 4 September & 17 October 2023 Date of orders: 7 June 2024 Decision date: 11 June 2024 Jurisdiction: Equity Before: Slattery J Decision: Set-off available to be argued but is not required to be applied. Directions made for the determination of the periods of time since January 2010 when the plaintiff occupied the property on her own or shared it and what an appropriate notional occupation fee should be for the periods of time that she has occupied the property. Various arguments that the plaintiff has not made payments of rates, charges, and mortgage instalments from her own money, and that the plaintiff should account for monies received from another property are rejected. Catchwords: LAND LAW – Co-ownership – second defendant has recently become the registered proprietor of certain residential real property occupied by the plaintiff and her former de facto partner – the second defendant has acquired title to the property consequent upon orders under the Criminal Assets Recovery Act 1990 against the plaintiff's former de facto partner – the Court of Appeal has declared that the plaintiff has a 25% interest in the property and the second defendant holds the other 75% – the second defendant now seeks to sell the property – the second defendant was found in a previous judgment to have an immediate right to possession of the property against the plaintiff, a co-owner in equity, who is also a tenant at will of the second defendant – judgment for possession has been entered in favour of the second defendant against the plaintiff and writ for possession stayed pending the taking of accounts between the plaintiff and the second defendant – whether there can be a set-off against the plaintiff's charge for her payments of rates, charges and mortgage instalments during her occupation, a notional occupation fee in respect of the balance of the interests that she does not own in equity in the property. Legislation Cited: Uniform Civil Procedure Rules, r 31.46 Cases Cited: Biviano v Natoli [1998] 43 NSWLR 695 Forgeard v Shanahan (1994) 35 NSWLR 206 Pascoe v Swan (1859) 27 Beav 508; 54 ER 201 The Owners of Strata Plan 50276 v Thoo [2013] NSWCA 270 Togias v State of New South Wales [2023] NSWSC 665 Category: Principal judgment Parties: Plaintiff: Nicolitsa Togias First Defendant: State of New South Wales Second Defendant: NSW Trustee and Guardian Representation: Counsel: Plaintiff/Respondent: Mr M. Condon SC Second Defendant/Applicant: Mr T.S. Hale SC (for Trustee)