Ryan v. Dries [2002] NSWCA 3

New South Wales Court of Appeal

CITATION : Ryan v. Dries [2002] NSWCA 3 revised - 7/02/2002 FILE NUMBER(S) : CA 40261/01 HEARING DATE(S) : 13 November 2001 JUDGMENT DATE : 6 February 2002

PARTIES : Gregory James Ryan - appellant Joanne Maree Dries - respondent JUDGMENT OF : Sheller JA at 1; Giles JA at 8; Hodgson JA at 22

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED2754/99 FILE NUMBER(S) : LOWER COURT Master McLaughlin JUDICIAL OFFICER :

COUNSEL : P. Connor for appellant D.L. Warren for respondent SOLICITORS : Bayside Solicitors, Ramsgate for appellant Cassidy Gibson Howlin, Cronulla for respondent CATCHWORDS : EQUITY - Maxims - "He who seeks equity must do equity" - REAL PROPERTY - Co-ownership (tenancy in common) - Incidents - Accounting in respect of occupation - Accounting in respect of repairs, maintenance, and outgoings, including mortgage repayments - TRUSTS AND TRUSTEES - Resulting trusts - Acquisition of land - Contributions to purchase money - Whether costs of acquisition included - PROCEDURE - Pleadings - Need for precision where claims made in the alternative to a claim for a broad statutory remedy. D. Little v. Little (1988) 15 NSWLR 43 at 45A-46D Currie v. Hamilton [1984] 1 NSWLR 687 at 691 In Re Pavlou [1993] 1 WLR 1046 Biviano v. Natoli (1998) 43 NSWLR 695 Luke v. Luke (1936) 36 SR(NSW) 310 CASES CITED: Teasdale v. Sanderson (1864) 33 Beav 534; 55 ER 476 Brickwood v. Young (1905) 2 CLR 387 Forgeard v. Shanahan (1994) 35 NSWLR 206 at 221-6 Strelly v. Winson (1685) 1 Vern 297; 25 ER 480 Leigh v. Dickerson (1884) 15 QBD 60 In re Jone; Farrington v. Forrester [1893] 2 Ch 461 at 477-8 McCormick v. McCormick (1921) NZLR 384 at 387-8 DECISION : 1. Appeal allowed; 2. Set aside orders 2 and 3, and declaration 1, below; 3.Order that the appellant pay to the respondent within 28 days the sum of $133,070.00 (less any amount paid since 23rd March 2001) plus interest at Supreme Court rates from 23rd June 2001 on any outstanding balance, and that in return the respondent transfer to the appellant her interest in the property 255 Sylvania Road, Gymea; 4. Order that the respondent pay the appellant's costs of the appeal incurred since 9th August 2001 and that she have a suitors' fund certificate if otherwise entitled, unless within 14 days either party provides to the Court written submissions on costs, in which event the Court will determine costs on the basis of those submissions and any submissions from the other party received within a further 7 days.