Ross v Byrne & ors [2003] NSWSC 11

Reported Decision : (2004) NSW ConvR 56-068

New South Wales Supreme Court

CITATION : Ross v Byrne & ors [2003] NSWSC 11 revised - 10/02/2003 HEARING DATE(S) : 14, 15 August 2002 (additional evidence, 5 November 2002) JUDGMENT DATE : 3 February 2003 JURISDICTION: Equity JUDGMENT OF : Master McLaughlin DECISION : See paragraph 43.

CATCHWORDS : Real property - Co-ownership - Statutory trust for sale - Liability of co-owners for outgoings, costs and expenses - Expenditure incurred for an illegal purpose - Expenditure incurred after appointment of statutory trustee for sale - Property did not increase in value as a result of expenditure - One of four co-owners neither authorised nor was informed of that expenditure - Liability of that co-owner for contribution to such expenditure. LEGISLATION CITED : Conveyancing Act 1919 CASES CITED : Forgeard v Shanahan (1994) 35 NSWLR 206 Catherine Jane Ross (Plaintiff) PARTIES : Donna Byrne (First Defendant) Glenn Peter Byrne (Second Defendant) Matthew Neil Byrne (Third Defendant) FILE NUMBER(S) : SC 5675/01 G. Drake (for Plaintiff) COUNSEL : D. Charles (First and Third Defendants) M. Dawson (Second Defendant) Mark Phillip Symonds, Solicitor (Plaintiff) SOLICITORS : Staunton Beattie Solicitors (First and Third Defendants) Philip Gengos & Co Solicitors (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 3 February 2003

5675/01 CATHERINE JANE ROSS -v- DONNA BYRNE and ORS JUDGMENT 1 MASTER: These proceedings were instituted by summons filed by the Plaintiff Catherine Jane Ross on 23 November 2001. That summons names three Defendants, being Donna Byrne, First Defendant; Glenn Peter Byrne, Second Defendant; Matthew Neil Byrne, Third Defendant. By that summons the Plaintiff claims relief pursuant to the provisions of Part 4 Division 6 of the Conveyancing Act 1919 in respect to certain land situate at and known as 58 Kellet Street, Potts Point. The summons also seeks further relief, to the nature whereof I shall shortly refer. 2 The land at 58 Kellet Street, Potts Point (to which I shall refer as "the subject property") consists of two lots in a strata plan (being Lot 1 in strata plan 16453, being Folio 1/SP16453, and Lot 15 in strata plan 16453, being Folio 15/SP16453). 3 The title to the subject property at all material times up to the making of the orders pursuant to Part 4 Division 6 of the Conveyancing Act was held as follows. The subject property was held in a tenancy in common as to two half shares therein. One of those half shares was held by the Plaintiff and the Second Defendant, holding that half share between themselves as joint tenants, whilst the other half share was held by the First and Third Defendants, holding that half share between themselves as joint tenants. The Plaintiff was formerly in a relationship with the Second Defendant. The Third Defendant is the brother of the Second Defendant and is the husband of the First Defendant. 4 I have already referred to the summons seeking relief additional to that under the foregoing provisions of the Conveyancing Act. That additional relief includes the following, 4. An order that the said trustee, in addition to the trust contained in Order 2, be given the powers contained in section 56 of the Trustee Act 1925 in dealing with the interest of the Plaintiff and the Second Defendant and to hold the interest of the Plaintiff and the Second Defendant upon trust to apply the net proceeds of the undivided share to each of the Plaintiff and the Second Defendant individually after the taking of accounts as sought in Order 5 herein.