Koczka v Koczka [2004] NSWSC 343

New South Wales Supreme Court

CITATION : Koczka v Koczka [2004] NSWSC 343 HEARING DATE(S) : 14/04/04 JUDGMENT DATE : 29 April 2004

JUDGMENT OF : Gzell J DECISION : Declaration that dwelling held by father and son on trust as tenants in common in shares proportionate to contributions to purchase price and that father's only contribution was his share of the mortgage.

CATCHWORDS : EQUITY - Equitable Estates and Interests - Dwelling purchased in names of father and son as tenants in common - Portion of purchase price raised by mortgage - Whether father's interest held on trust for son - Whether presumption that interests held in trust as tenants in common in shares proportinate to contributions to the purchase price applies - Prior to purchase father was the lessee of the dwelling as prescribed premises under the Landlord and Tenant (Amendment) Act 1948 - Whether discount from market value in purchase price a contribution by the father - Father died intestate - Defendant administrator of the estate LEGISLATION CITED : Landlord and Tenant (Amendment) Act Napier v Public Trustee (WA) (1981) 55 ALJR 1 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 CASES CITED : Martin v Martin (1959) 110 CLR 297 Calverley v Green (1984) 155 CLR 242 Muschinski v Dodds (1984-1985) 160 CLR 583 PARTIES : David Karl Koczka - Plaintiff Alexander Christopher Koczka - Defendant FILE NUMBER(S) : SC 1862/03 COUNSEL : Mr John Shaw - Plaintiff Mr Trevor Hall - Defendant SOLICITORS : Cabarrus & Associates Solicitors - Plaintiff Salmon & Co Solicitors - Defendant