BAKER v TOWLE [2008] NSWCA 73

New South Wales Court of Appeal

CITATION: BAKER v TOWLE [2008] NSWCA 73

HEARING DATE(S): 1 February 2008

JUDGMENT DATE: 24 April 2008

JUDGMENT OF: Beazley JA at 1; Basten JA at 31; Mathews AJA at 90

(1) Appeal allowed in part and orders 1, 2 and 5 made in the Equity Division on 19 June 2007 be set aside. (2) In lieu thereof make the following orders: (a) upon tender by the respondent of the amount of $50,000, together with a discharge of the mortgage granted by the appellant and the respondent to the National Australia Bank with respect to the property at Yippen Creek, the appellant shall transfer to the respondent all his right, title and interest in the property at Yippen Creek; (b) in the event that the respondent does not tender the amount specified and the discharge of mortgage within 90 days of the date of this judgment, the parties are to sign all documents and take all steps necessary expeditiously and in good faith to sell the property at a fair market price; DECISION: (c) the proceeds of sale, after payment of all necessary expenses, will be divided between the parties so that the appellant will receive 11% and the respondent the balance; (d) the appellant shall in any event take all necessary steps to ensure that the respondent obtains a release of the respondent's guarantee of the overdraft facility with the National Australia Bank. (3) The appellant is to pay the respondent two-thirds of her costs of the trial. (4) The respondent is to pay the appellant 25% of his costs of the appeal. (5) The respondent shall have a suitor's fund certificate in respect of the costs of the appeal.