Sullivan v. Sullivan (No.2) [2007] NSWCA 11

New South Wales Court of Appeal

CITATION: Sullivan v. Sullivan (No.2) [2007] NSWCA 11 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Matter dealt with on written submissions in Chambers

JUDGMENT DATE: 15 February 2007

JUDGMENT OF: Hodgson JA at 1; McColl JA at 1; Handley AJA at 1

DECISION: 1. The appeal be allowed. 2. That the orders of Justice Campbell made on 7 February 2005 in Supreme Court Proceedings 2476/04 be set aside, and in lieu thereof: (a) An order that the Third Respondent hold the property situated at and known as 24 Greenvale Road, Green Point in the State of New South Wales (being the whole of the land contained in Folio Identifier 354/806338) (the "Property") on trust for the Appellant, in priority to any of its obligations under any discretionary trust, until 14th November 2013 on terms that: (i) the Appellant keep the Property in good repair, bearing in mind the condition of the premises at the date of these Orders, but need not carry out: (A) any structural work, unless it has become necessary because of any actions, whether negligent or deliberate, of the Appellant or those for whom the Appellant is responsible; (B) repairs that are necessary because of fair wear and tear; or (C) repairs that are necessary because of a natural disaster or other serious event that is out of the Appellant's control; and (ii) the Appellant pay rent in the amount of $65.00 per week indexed on the 1st January each year commencing 2007 in line with the Australian Consumer Price Index (Sydney all groups). (b) An order that the First, Second and Third Respondents be restrained from disturbing or otherwise interfering with the Appellant's quiet enjoyment of the Property until 14 November 2013. 3. That the First, Second and Third Respondents pay the Appellant's costs of Supreme Court Proceedings 2476/04. 4. That the First, Second and Third Respondents pay the Appellant's costs of this appeal, including the application for leave to appeal, and have certificates under the Suitors' Fund Act if otherwise eligible. 5. Liberty to apply to the Supreme Court should any question arise about default under the mortgage over the property.