Dinsdale bht Protective Commissioner v Arthur [2006] NSWSC 809

New South Wales Supreme Court

CITATION : Dinsdale bht Protective Commissioner v Arthur [2006] NSWSC 809 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 3 August 2006

JUDGMENT DATE : 14 August 2006

JURISDICTION : Equity

JUDGMENT OF : Brereton J

DECISION : Declare that plaintiff and defendant hold Property upon trust for themselves as tenants-in-common in proportions 88:12, and are liable under the mortgage in proportions 75:25 respectively. Declare that subject to plaintiff allowing defendant occupation fee equivalent to 12% of market rental value of property, defendant is liable to pay plaintiff by way of contribution amount by which plaintiff's mortgage repayments exceed his 25% share, and that net liability is charged upon defendant's interest in property. Declare that amount of such charge, as at this date is $4,528.24. Order that defendant pay plaintiff's costs. Reserve further consideration and liberty to apply.

CATCHWORDS : TRUSTS – Resulting trust – arising from unequal contributions to purchase money – where property taken in joint names – how mortgage money treated – Constructive trust – Baumgartner v Baumgartner. - EQUITY – General principles – equity of exoneration. - REAL PROPERTY – Co-ownership – contribution between co-owners – liability to contribute in respect of mortgage repayments – requirement to do equity by offering to pay occupation fee.

Albion Insurance Company Limited v GIO (NSW) (1969) 121 CLR 342 Baumgartner v Baumgartner (1987) 164 CLR 137 Brown v Brown (1993) 31 NSWLR 582 Calverley v Green (1984) 155 CLR 242 Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 Currie v Hamilton (1984) 1 NSWLR 687 Dickson v Reidy [2004] NSWSC 1200 (Nicholas J) Doolan v Shepherd [2005] NSWSC 42 (White J) CASES CITED : Farrugia v Official Receiver in Bankruptcy (1982) 43 ALR 700 Forgeard v Shanahan (1994) 35 NSWLR 206 Gee v Liddell [1913] 2 Ch D 62 Ingram v Ingram [1941] VLR 95 Martin v Martin (1959) 110 CLR 297 Napier v Public Trustee (Western Australia) (1980) 32 ALR 153 Parsons v McBain (2002) 192 ALR 772 Ryan v Dries [2002] NSWCA 3 Shepherd v Cartwright [1955] AC 431 West v Mead [2003] NSWSC 161 (Campbell J)