Sullivan v Sullivan [2005] NSWSC 10

New South Wales Supreme Court

CITATION : Sullivan v Sullivan [2005] NSWSC 10

HEARING DATE(S) : 23 November 2004

JUDGMENT DATE : 7 February 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Plaintiff's claims for relief dismissed

CATCHWORDS : EQUITY - equitable estates and interests - proprietary estoppel - elements of - whether unconscionable for representors to resile from representation that plaintiff would have personal right to stay in house for life - EQUITY - equitable charges and liens - expenditure by plaintiff on house of defendant - whether equitable charge results

LEGISLATION CITED : Real Property Act 1900

Galaxidis v Galaxidis [2001] NSWSC 1123 CASES CITED : Galaxidis v Galaxidis [2004] NSWCA 111

Julie Anne Sullivan - Plaintiff Robert Brian Sullivan - First Defendant PARTIES : Donna Avelyn Sullivan - Second Defendant Spiralling Coil Pty Limited - Third Defendant

FILE NUMBER(S) : SC 2476/04

R D Wilson - Plaintiff COUNSEL : R R Harper SC; T T Bors - Defendants

Brazel Moore Lawyers - Plaintiff SOLICITORS : Blunden & Ferguson - Defendants

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

7 FEBRUARY 2005

2476/04 JULIE ANNE SULLIVAN v ROBERT BRIAN SULLIVAN & ORS JUDGMENT 1 HIS HONOUR: The plaintiff in this case is the sister of the first defendant. The second defendant is the wife of the first defendant. The third defendant is a company of which the first and second defendants are the sole directors and shareholders. The third defendant is also the trustee of a discretionary trust which benefits members of the first defendant's family. 2 The plaintiff is aged 38. She has, now, five children. In about 1984, not long after her eldest child was born, she applied for subsidised accommodation with the Housing Commission, and put her name on the Housing Commission list for such accommodation. After being on that list and waiting for a period of about seven years, she obtained accommodation from the Housing Commission in a three bedroom house at 11 Citrus Close, Wyoming, which is outside Gosford. In about 1990 she moved into 11 Citrus Close, Wyoming, and commenced to pay rent to the Housing Commission. She continued living there from about 1990, with such children as she had from time to time. She had a daughter Koe, born on 27 February 1990, and another daughter, Tory, born on 30 June 1995. In 1995 she was living with a man called Nathan. Circumstances of Purchase of the Green Point House 3 On Christmas Day 1995 the first defendant gave the plaintiff a Christmas card. Its front page was headed "With Love Dear Sister", and contained the start of a verse, which continued over another two pages, which elaborated upon how specially she was regarded. An unprinted page of the card had various small pictures of houses, of the kind one finds in brochures advertising real estate for sale, stuck to it. It also contained a handwritten letter as follows: "This is your Christmas present. Donna & I & you & Nathan ASAP will look for a home of your/our choice for you to live in as long as you like. It'll be a modern & good quality home in a good location for schools transport etc. You won't have to pay any rent for the first 12 months & at that time we'll consider your financial situation and have you pay a minimal comfortable rent from then on. We want you to look at it as your home & take pride in it accordingly. You can do 'almost' anything you like to it, modifications design, painting etc & make it your style. Naturally, as the owners we will want you to abide by certain basic conditions which I'm sure you'll agree with, but it is you [sic] home for life. Now I say the following causiously [sic] & cannot promise that what I'm about to say will happen, but it's possible that after a period of time Donna & I would consider our & your situation & if we feel it appropriate would allow you to buy the home off us at a realistic & reduced payment schedule. Julie, this comes from our heart, we have been fortunate financially & want to share some with you & make life a little more comfortable for you & the kids. Love from Robert & Donna X X"