HIBBERSON v GEORGE [1989] NSWCA 100

HIBBERSON v GEORGE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, MAHONEY and MCHuGH JJA 22 November 1988, 13 February 1989

[1989] NSWCA 100 trusts — De Facto Relationships Act

TRUSTS — constructive trust — de facto relationship — house — in name of respondent who paid deposit and repayments — appellant paid for furniture and furnishings, spent money on renovation of house and relieved respondent of expenses for which he was responsible.

DE FACTO RELATIONSHIPS ACT — commencement of Act — appellant leaving respondent just before Act came into operation — claim by respondent she was considering going back — principles applicable.

HELD constructive trust in favour of the appellant for 40% of beneficial interest, subject to adjustments.

ORDERS

(1) Appeal allowed.

(2) Declaration and orders made by Cohen J set aside.

(3) Declare that the respondent holds the land comprised in Certificate of Title Volume 7201 Folio 136 known as 168 Young Street Annandale on trust for himself beneficially as to 60 per cent and for the appellant beneficially as to 40 per cent.

(4) Declare that the respondent is entitled to deduct from the proceeds of any sale of the property the sum of $10,000 and any further sum paid by the respondent in respect of the purchase of the property or in connection with the ownership of the property since 21 May 1985. Such further sums should carry interest at 10% since the date of payment by the respondent. The sum of $10,000 should carry interest at 10% from 21 May 1985.

(5) Declare that the appellant is entitled to have deducted from the proceeds of the sale and paid to her the sum of $6,250 together with interest at 10% from 21 May 1985.

(6) Order the respondent to do all acts and sign all such documents necessary to effect the sale of the property within a reasonable period and, after payment out of all legal costs and commission in connection with the sale and moneys payable to the appellant and respondent out of the proceeds of the sale, to distribute the nett proceeds of sale between the parties as to be 60 per cent to the respondent and 40 per cent to the appellant.