Jo Maree Payne v Helen Mary Rowe & Anor [2012] NSWSC 685

Supreme Court New South Wales

Medium Neutral Citation: Jo Maree Payne v Helen Mary Rowe & Anor [2012] NSWSC 685 Hearing dates: 21 to 24 May 2012; 30 May 2012 Decision date: 25 June 2012 Jurisdiction: Equity Division Before: Ball J Decision: See paragraphs 116 to 122 of this judgment. Catchwords: REAL PROPERTY - co-ownership - application for appointment of statutory trustees for sale - adjustment of interests - whether non-occupying owner entitled to occupation fee - where there has been no exclusion from the property - consideration of principle in McKay v McKay and Callow v Rupchev - held applicable to "domestic relationship" between brother, sister and mother. REAL PROPERTY - co-ownership - application for appointment of statutory trustees for sale - adjustment of interests - whether contributions made by associated entity attributable to party. EQUITY - trusts - resulting trust - presumption of resulting trust based on contributions to purchase price - presumption rebutted where parties have agreed on beneficial interest at time of purchase. EQUITY - trusts - remedial constructive trust - principle in Baumgartner - application to family relationship - necessity of identifying relevant "joint enterprise" - whether there was "attributable blame" for the failure of the joint enterprise - whether party adequately compensated by a right to contribution - whether respective contributions by parties should be valued according to cost or increase in value of property. LIMITATION OF ACTIONS - whether claim for imposition of remedial constructive trust subject to limitation period - application of Limitation Act directly or by analogy - distinction between claim for constructive trust and claim for debt or action for money had and received - consideration of when claim for remedial constructive trust accrues. EVIDENCE - admissibility - inadmissibility of evidence of communications in connection with an attempt to negotiate a settlement of the dispute - whether admissions made in such communications admissible - consideration of exception in s 131(2)(g) - held evidence not admissible simply because it qualifies other evidence adduced in proceedings. ONUS OF PROOF - general principle - onus is on the defendant if the allegation is not simply a denial of an essential ingredient of the cause of action but a good defence. Legislation Cited: Conveyancing Act 1919 (NSW) Evidence Act 1995 (Cth) Limitation Act 1969 (NSW) Cases Cited: Atlas Financial International Ltd v Nortbale Pty Ltd [2011] NSWSC 815 Australian Receivables Ltd v Tekitu Pty Ltd (Subject to Deed of Co Arrangement)(Deed Administrators Appointed) [2011] NSWSC 1306 Baida Poultry Pty Ltd v R [2012] HCA 14 Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd (No 2) [2011] FCA 276 Baumgartner v Baumgartner (1987) 164 CLR 137 Bennett v Horgan (Supreme Court of NSW, Bryson J, 3 June 1994, unreported) Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 Brown v Commissioner of Taxation [2001] FCA 596; 187 ALR 714 Callow v Rupchev [2009] NSWCA 148 Currie v Dempsey (1967) 86 WN (Pt 2) (NSW) 460 Dinsdale bht the Protective Commissioner v Arthur [2006] NSWSC 809 DTC No 1 Pty Ltd v Matthew [2009] NSWSC 1280 Forgeard v Shanahan (1994) 35 NSWLR 206 French v Barcham [2009] 1 WLR 1124 Hill v Hill [2005] NSWSC 863 In de Braekt v Powell [2007] WASCA 55 Lang v Le Boursicot (1993) 5 BPR 11,782 McKay v McKay [2008] NSWSC 177 Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 Mayne Industries Pty Ltd v Advanced Engineering Group Pty Ltd [2008] FCA 27 Miller v Sutherland (1990) 14 Fam LR 416 Muschinski v Dodds (1985) 160 CLR 583 Mulkearns v Chandos Developments (No 4) (2005) 12 BPR 22,993 New South Wales (Ambulance Service of NSW) v McKittrick [2009] NSWCA 63 Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135 Rupchev v Callow [2007] NSWSC 1097 Stocking v Montila [2005] EWHC 2210 (Ch) Sweetenham v Wild [2005] QCA 264 The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 Varma v Varma [2010] NSWSC 786 West v Mead [2003] NSWSC 161 Texts Cited: P Butt , Land Law, 6th Edition (2010), Lawbook Co Category: Principal judgment Parties: Jo Maree Payne (Plaintiff) Helen Mary Rowe (First Defendant) Jeremy Richard Dawson Rowe (Second Defendant) Representation: DF Villa (Plaintiff) KG Oliver (Defendants) Thomsons Lawyers (Plaintiff) Reuben George Lawyers (Defendants) File Number(s): 2011/157795