McKay & anor v McKay (Costs) [2008] NSWSC 256

New South Wales Supreme Court

CITATION : McKay & anor v McKay (Costs) [2008] NSWSC 256

HEARING DATE(S) : 28 February 2008 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 28 February 2008

DECISION : Plaintiffs to pay 60% of defendant's costs

CATCHWORDS : COSTS – upon failure of joint venture between family members – analogy with partnership and s 66G Conveyancing Act proceedings – where plaintiffs fail on main contested issues

LEGISLATION CITED : (NSW) Conveyancing Act 1919, s 66G

CATEGORY : Consequential orders

CASES CITED : McKay & anor v McKay [2008] NSWSC 177

Carolyn Suzanne McKay (first plaintiff) PARTIES : Ferdinando Schiavo (second plaintiff) David McKay (defendant)

FILE NUMBER(S) : SC 4043/05

COUNSEL : M W Sneddon (plaintiffs) M B Evans (defendant)

SOLICITORS : Bull Son & Schmidt (plaintiffs) Whitfields Solicitors (defendant)

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

BRERETON J

Thursday 28 February 2008

4043/05 Carolyn Suzanne McKay & anor v David McKay JUDGMENT (ex tempore) 1 HIS HONOUR: On 21 February 2008 I gave judgment in these proceedings [McKay & anor v McKay [2008] NSWSC 177], expressing the view that trustees should be appointed to sell the property; to pay from the proceeds of sale, the costs of sale; to divide the balance into two shares, called the plaintiffs' share and the defendant's share; from the plaintiffs' share to deduct the amount required to discharge the mortgage and to pay the balance to the plaintiffs; and from the defendant's share to deduct and pay to the plaintiffs an occupation fee calculated as indicated in the judgment, the amount of rates and outgoings to which I found the plaintiffs were entitled, and then to pay the balance remaining of the defendant's share to the defendant. I concluded that there should be judgment that the defendant pay the plaintiffs the sum of $20,000 together with interest at the appropriate rate, and that all the consolidated proceedings should otherwise be dismissed. I directed the parties to bring in short minutes to give effect to the judgment, and indicated that I would hear them on the question of costs.