Ball v Smith [2008] NSWSC 1129

New South Wales Supreme Court

CITATION : Ball v Smith [2008] NSWSC 1129

HEARING DATE(S) : 27/10/08

JUDGMENT DATE : 13 November 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

CATCHWORDS : Equity and Equitable Estates. - Property purchased by parents with son's name on title to enable a loan to be obtained. - Whether presumption of advancement rebutted in circumstances. - Held: presumption rebutted and property held on resulting trust for the parents.

PARTIES : Tracey-Lee Ball v Braydon David Smith

FILE NUMBER(S) : SC 5946/2007

COUNSEL : Mr M Meek for plaintiff Mr G Foster for defendant

SOLICITORS : John Allanson & Associates for plaintiff PK Solicitors for defendant

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

ASSOCIATE JUSTICE MACREADY

Thursday 13 November 2008

5946/2007 TRACY-LEE BALL v BRAYDON DAVID SMITH JUDGMENT 1 HIS HONOUR: This is an application by the plaintiff for a declaration in respect of the ownership of a property at Kestrel Place, Ingleburn held by her late mother Brenda Mavis Smith who died on 16 June 2006. An alternative application is made under s 7 of the Family Provision Act in respect of the estate of the deceased. The plaintiff and defendant are the only children of the deceased and her late husband, Charles Henry Smith, who died on 5 May 2006. Family History 2 At some time prior to 1979 the family decided to migrate to Australia from New Zealand. The deceased and her children arrived in February 1979 in advance of the arrival of her husband. In March 1979 the deceased purchased a town house at Clifford Crescent, Ingleburn. 3 The deceased's husband joined his family in Australia in 1982 and by that year the plaintiff had completed her education and she obtained employment with the Commonwealth Bank.