PENNIE v PENNIE [2010] NSWSC 565

New South Wales Supreme Court

CITATION : PENNIE v PENNIE [2010] NSWSC 565 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 24, 25 & 27 May 2010 JURISDICTION : Equity

JUDGMENT OF : Pembroke J

EX TEMPORE JUDGMENT DATE : 27 May 2010

DECISION : See paragraphs 48 et seq of Judgment

CATCHWORDS : EQUITY - TRUSTS - Whether implied trust - No intention - EQUITABLE REMEDIES - Whether constructive trust - No unfulfilled promise or assurance - No unconscionability - Equitable charge - Minimum equity - Expenditure of money on another's land - No right to enhancement value

CATEGORY : Principal judgment

Baumgartner v Baumgartner (1987) 164 CLR 137 Forgeard v Shanahan (1994) 35 NSWLR 206 CASES CITED : Giumelli v Giumelli (1999) 196 CLR 101 Henderson v Miles (No 2) (2005) BPR 98200 Morris v Morris [1982] 1 NSWLR 61 Muschinski v Dodds (1985) 160 CLR 583

PARTIES : Harry George Pennie - Plaintiff Stuart Pennie - Defendant

FILE NUMBER(S) : SC 2008/282026

COUNSEL : J. A. Trebeck for the Plaintiff D. K. Raphael for the Defendant

SOLICITORS : Herbert Weller (Plaintiff) Mersal & Associates (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

PEMBROKE J

THURSDAY 27 MAY 2010

2008/282026 HARRY GEORGE PENNIE v STUART PENNIE EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a case resulting from the break down in a relationship between father and son. The father is the plaintiff. He is the registered proprietor of the land and improvements known as 30 Manns Road, Wilberforce. Until 2008 the plaintiff shared his home with his son and daughter-in-law. They are the defendants. 2 As a result of conflict between the plaintiff and his daughter-in-law it has not been practical for the father to reside in his home for some time. He seeks a declaration that he is entitled to possession - to which he is indubitably entitled.