Neuhaus v Swanston & Anor [2002] NSWSC 443

Reported Decision : (2002) DFC 95-251

New South Wales Supreme Court

CITATION : Neuhaus v Swanston & Anor [2002] NSWSC 443 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1893/01 HEARING DATE(S) : 4 & 26 April 2002 16 May 2002 JUDGMENT DATE : 30 May 2002

Walter Neuhaus PARTIES : Scott Swanston Lily Swanston JUDGMENT OF : Davies AJ at 1

Mr N Jackson for the Plaintiff COUNSEL : Mr K O'Kane (Solicitor Advocate) for the First Defendant Mr D Smallbone for the Second Defendant Kings Lawyers for the Plaintiff SOLICITORS : John R Quinn & Co Solicitors for the First Defendant Ross A Clarke & Associates Solicitors for the Second Defendant CATCHWORDS : Equity - Resulting Trust - whether partnership moneys used in purchase of a home unit - whether partners entitled to interest in the property - no question of principle LEGISLATION CITED : Family Law Act 1975 (Cth) DECISION : 1. The Court declares by way of a resulting trust that the first defendant holds in trust the property located at 9/4 Ford Road, Maroubra for the plaintiff, to the extent of $70,000 plus interest from this date; 2. The Court orders that: (i) the first defendant pay to the plaintiff the amount of $70,000, and in addition, interest as referred to in paragraph (ii) below, within two months from the date of final property orders made in the Family Court of Australia in the Sydney Registry of the Family Court of Australia, proceedings number SY 7120 of 1999; (ii) this amount be subject to an interest provision, with such interest to run from the date of these orders, and be subject to such rate of interest as is prescribed by the New South Wales Supreme Court Rules; (iii) the plaintiff's costs be paid by the defendants, such costs to be assessed on an indemnity basis as from 19 December 2001; (iv) the first defendant 's costs, including the costs payable by him to the plaintiff, be paid by the second defendant.