STEVENS v HAYES [1989] NSWCA 200

STEVENS v HAYES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY (1), PRIESTLEY (2) AND MEAGHER (3) JJA 1 August 1989, 8 August 1989 [1989] NSWCA 200

Appeal from Equity Division — Arrangement between deceased and defendants for house to be bought, renovated and sold — Proceeds to be divided between them — Administratrix contested whether arrangement was made — Property sold and net proceeds held in Court — Held arrangement was made. Lack of writing — Not prevent enforcement of arrangement for division of proceeds — Partnership or joint venture — Proceeds held subject to terms of division in arrangement. Uncertainty — Any initial uncertainty not affect entitlement to share of fund held in Court. ORDER Appeal dismissed with costs.

Mahoney JA The late Mr Stevens died on 19 May 1982. The plaintiff is his widow and his administratrix. When he died the land here in question was registered in his name. The defendants allege that the deceased held the land subject to an agreement between them that it be sold and the net proceeds divided between them. The plaintiff contested that there was such an agreement.

The difference between them came before the court in the following way. At the date of the deceased's death the land was subject to two charges: one in favour of a building society for a sum in excess of $19,000; and one in favour of a finance company for something in excess of $5,000. The land was sold by the building society in accordance with its security. After deductions, an amount remained of $12,614.03. That amount was paid into court in September 1984 and is still held in court.

In 1985 the plaintiff, as administratrix, brought proceedings on summons for a declaration that she was entitled as administratrix to such moneys and for payment of them to her. The defendants, in a cross claim, sought a declaration that they were "entitled each as to one third of the moneys paid into court" and for payment out accordingly.