Ku v You [2008] NSWSC 712

New South Wales Supreme Court

CITATION : Ku v You [2008] NSWSC 712 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 04/12/07, 05/12/07, 29/01/08, 30/01/08, 19/05/08, 20/05/08, 02/06/08

JUDGMENT DATE : 15 July 2008

JURISDICTION : Equity Divison

JUDGMENT OF : Macready AsJ at 1

CATCHWORDS : Equity - General Principles - Trusts. - Property purchased by two persons. Deductions as to proportional ownership and findings as to an account of mortgage repayments and outgoings on the property.

PARTIES : Ja Kil Ku v Yern Sung You

FILE NUMBER(S) : SC 5384 of 2005

COUNSEL : Ms G. Mahoney for plaintiff Mr RA Parsons and Mr JE Armfield for defendant

SOLICITORS : Dahan Lawyers for plaintiff Deutsch Partners Lawyers Pty Ltd for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Associate Justice Macready

Tuesday 15 July 2008

5384/05 Ja Kil Ku v Yern Sung You JUDGMENT 1 His Honour: This is the hearing of proceedings concerning the ownership of a property at Balmoral Road, Kellyville held by the plaintiff and defendant as tenants in common in equal shares. There is also a notice of motion filed 5 December 2007 for the taking of accounts in respect of the contributions by the parties to the mortgage over the property. Trustees for sale appointed earlier in the proceedings are selling the property and it is expected that it will be sold for in excess of three million dollars. Background matters 2 The property was purchased by the plaintiff and defendant as joint tenants under a contract which was completed on 27 January 1998. The purchase price was $730,000 and the parties borrowed $270,000 to complete the purchase. 3 The plaintiff contributed $290,000 and the defendant $170,000 to the purchase price. The parties are at issue as to who paid the stamp duty of $28,344 and legal expenses of $1,725. 4 Initially from 27 January 1998 the defendant and his wife lived in the property. From 24 October 1998 both parties and their wives lived in the house until 18 November 2002. At this time the defendant and his wife vacated the property and thereafter the plaintiff has occupied the property alone. The plaintiff and defendant were at the time of purchase brothers in law as the plaintiff had married the sister of the defendant's wife. They have now separated. 5 The defendant's wife is the second cross defendant to the first cross claim as she apparently signed some of the mortgage documentation although she is not shown on the title and has not taken any part in the proceedings other than to swear an affidavit in support of the defendants case. She contributed no funds to the purchase. 6 The mortgage repayments (including the increases and the refinancing loan agreements) were normally transferred by direct debit from National Australia Bank Account no: 68 205-xxxx ("the NAB Account") for the period 27 January 1998 to January 2005. From February 2005, the mortgage repayments were effected from the plaintiff's Commonwealth Bank Account (Account No. 1022xxxx). 7 As at the commencement of the repayment of the mortgage, being 27 January 1998, the NAB account was solely in the name of the defendant. On 29 July 1998, the plaintiff was made a non-withdrawing signatory to the NAB Account.