Neilson v. Letch [2005] NSWCA 430

New South Wales Court of Appeal

CITATION: Neilson v. Letch [2005] NSWCA 430

HEARING DATE(S): 29 September 2005

JUDGMENT DATE: 6 December 2005

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 22

DECISION: 1. Leave to appeal granted. 2. Notice of Appeal to be filed within 14 days. 3. Claimant to pay costs thrown away by reason of proper material not being available at the hearing of the leave application, such costs to be borne by the claimant's solicitor. 4. Otherwise, costs of the leave application to be costs in the appeal.

CATCHWORDS: REAL PROPERTY - Co-ownership - Presumption of resulting trust - Whether presumption rebutted - Equitable accounting - Whether arguable errors justifying grant of leave to appeal

CASES CITED: Calverley v. Green (1984) 154 CLR 242

Mary Ann Neilson - claimant PARTIES: Darryl Richard Letch - opponent

FILE NUMBER(S): CA 40258/05

Mr. C.M. Simpson for claimant COUNSEL: Mr. J. Drummond for opponent

Adrian Twigg & Co., Sydney for claimant SOLICITORS: Hartmann & Associates, Sydney for opponent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC2122/03

LOWER COURT JUDICIAL OFFICER: Master McLaughlin

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40258/05 ED 2122/03

HODGSON JA IPP JA

Tuesday 6 December 2005 NEILSON V. LETCH Judgment 1 HODGSON JA: An application for leave to appeal in this matter was heard on 29 September 2005; and because of the inadequacy of the material provided to the Court, judgment was reserved and directions were given as to the provision of further material. The completion of provision of that material did not occur until 30 November 2005. In the circumstances, it is appropriate to give more detail than usual in disposing of the leave application. 2 The orders in respect of which leave to appeal is sought were made on 17 December 2004 by Master McLaughlin in proceedings in which the claimant Ms. Neilson had sought an order against the opponent Mr. Letch for the sale of property 14/103 Kirribilli Avenue, Kirribilli and an equal division of the proceeds, and Mr. Letch had sought in substance that he be given credit for money he paid on the acquisition of the property and for subsequent mortgage payments and other outgoings. By the time of the Master's judgment, the property had been sold, and the Master declared that the parties were entitled to the proceeds in the amounts of $88,986.00 for Ms. Neilson and $191,245.00 for Mr. Letch; and he left each party to bear its own costs of the proceedings. 3 The Master made the following factual findings: 22 The parties met in 1982. The de facto relationship between the parties commenced in September 1989. In the meantime, however, on 29 May 1989 the Plaintiff, at the request of the Defendant, who was the proprietor of a liquor shop at that time, lent to the Defendant the sum of $30,000 in order that he might meet certain Liquor Board fees. That sum has never been repaid.