NYDEGGER V. McKENZIE & ANOR. [2001] NSWCA 393

New South Wales Court of Appeal

CITATION : NYDEGGER V. McKENZIE & ANOR. [2001] NSWCA 393 FILE NUMBER(S) : CA 41041/00 HEARING DATE(S) : 25 September 2001 JUDGMENT DATE : 15 November 2001

Olivia Pearl Nydegger - appellant PARTIES : Therese Violette McKenzie - first respondent Colin McKenzie - second respondend JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT ED4738/99 FILE NUMBER(S) : LOWER COURT Bergin J JUDICIAL OFFICER :

COUNSEL : Mr. A.J. McInnes QC with Ms. N. Butler for appellant Mr. J. Sexton SC with Mr. W. Bradford for respondents SOLICITORS : Kenneth Harrison, Bondi Junction for appellant Booth Brown Samuels & Olney for respondents CATCHWORDS : EQUITY - Estoppel - Maxims - "He who seeks equity must do equity" - Daughter benefit of trust of property subject to life interest in mother - Rift between mother and daughter - Whether daughter as condition of relief should make some provision in mother's favour. D. Flinn v. Flinn [1999] 3 VR 712 Sander v. Twigg (1887) 13 VLR 765 at 785 CASES CITED: Malton v. Black, Young J, 26/5/86 Constanton v. Permanent Trustee Australia Limited, Young J, 13/6/91 Nieborak v. Piper, Young J, 11/12/90 DECISION : See par.62 of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41041/00 ED 4378/99 SHELLER JA BEAZLEY JA HODGSON JA

Thursday 15th November 2001

NYDEGGER V. McKENZIE & ANOR. Judgment 1 SHELLER JA: I agree with the reasons of Hodgson JA as set out below. 2 BEAZLEY JA: I also agree with Hodgson JA. 3 HODGSON JA: On 15th December 2000, Bergin J made orders to the effect that, subject to certain conditions, Olivia Nydegger held her interest in four farm properties near Dubbo and certain associated assets on trust for her daughter Therese McKenzie, and also made certain consequential orders. We are dealing with an appeal from those orders. For convenience, I will generally refer to the parties and their relatives by forenames.