Brennan v Duncan (No. 2) [2006] NSWSC 851

Reported Decision : (2006) DFC 95-339

New South Wales Supreme Court

CITATION : Brennan v Duncan (No. 2) [2006] NSWSC 851

HEARING DATE(S) : 10/08/06, 11/08/06

JUDGMENT DATE : 11 August 2006

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 08/11/2006

DECISION : See paragraph 28 of judgment.

CATCHWORDS : EQUITY – Trusts and trustees – Implied trusts – Constructive trusts – Plaintiff and defendant were in de facto relationship – Plaintiff and defendant purchased property as joint tenants – Plaintiff contributed disproportionately to purchase price of property – Defendant contributed disproportionately to payment of plaintiff's personal expenses – Plaintiff and defendant separated – Joint tenancy severed – Earlier judgment of Court found parties hold property on trust as to 57 per cent for plaintiff and 43 per cent for defendant – Whether parties should bear burden of mortgage debt in same proportion as that in which they hold property – Parties must bear burden equally - COSTS – Both parties sought orders for costs – Both parties relied upon offers of compromise – Where neither party bettered his or her offer of compromise – Where plaintiff failed to obtain relief sought in statement of claim – Where plaintiff's only success came pursuant to submissions made belatedly – Order that plaintiff pay 50 per cent of defendant's costs.

CASES CITED : Baumgartner v Baumgartner (1987) 164 CLR 137 Ryan v Dries (2002) 10 BPR 19,947; [2002] NSWCA 3

Mark Kenneth Brennan PARTIES : v Jennifer Mary Duncan

FILE NUMBER(S) : SC 3062/05

COUNSEL : Plaintiff: D Bernie Defendant: L Judge