Ryan v Ryan [2012] NSWSC 636

Supreme Court New South Wales

Medium Neutral Citation: Ryan v Ryan [2012] NSWSC 636 Hearing dates: 23 May 2012 Decision date: 08 June 2012 Jurisdiction: Equity Division Before: Ward J Decision: Access to some of the funds held in Court permitted - orders to be made following submissions as to regime for payment out. Catchwords: PRACTICE AND PROCEDURE - application for payment out of moneys presently held in Court in order to find legal expenses of criminal appeal proceedings and forfeiture proceedings - principles applicable on such an application where fund in Court represents moneys over which estate claims a resulting or constructive trust - HELD - order for access to part of the funds subject to provision of satisfactory costs estimates to be applied in priority to criminal appeal proceedings

EQUITY - resulting trusts - property held in joint title - unequal contributions to purchase price - applicant was jointly liable with deceased on mortgage agreement - OBITER - estate has seriously arguable claim for presumed resulting trust

EQUITY - presumption of advancement - the parties were in a de facto relationship at the time that the property was acquired - whether presumption applicable - OBITER - as stands on authority at present cannot assume that a presumption of advancement applies where parties were in a de facto relationship

FORFEITURE RULE - Forfeiture Act 1995 - property held in joint title by deceased and applicant - operation of right of survivorship - OBITER - estate has seriously arguable claim that applicant holds deceased's half interest on constructive trust for the deceased's estate due to forfeiture rule Legislation Cited: De Facto Relationships Act 1984 (NSW) Family Law Amendment (De Facto Matters and Other Measures) Act 2008 (Cth) Family Law Act 1975 (Cth) Forfeiture Act 1995 (NSW) Supreme Court Act 1970 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A v C (No 1) [1981] 1 QB 956 Anderson v McPherson [No 2] [2012] WASC 19 Australian Spirit Management Pty Ltd v CMR of Taxation [2012] NSWSC 123 Badman v Drake [2008] NSWSC 968 Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060 Buffrey v Buffrey [2006] NSWSC 1349; (2006) 12 BPR 23,619 Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 Calverley v Green (1984) 155 CLR 242 Charles Marshall Pty Limited v Grimsley (1956) 95 CLR 353 Commonwealth Bank v Estate of late Slieman [2010] NSWSC 661 Damberg v Damberg [2001] NSWCA 87 Director of Public Prosecutions for the Commonwealth v Saxon (1992) 28 NSWLR 263 Dwyer v Kaljo (1992) 27 NSWLR 728 Evans v Marmont (1997) 42 NSWLR 70 Gissing v Gissing [1971] AC 886 Grant v Edwards [1986] Ch 638 CA Harrison Partners Constructions Pty Ltd v Jebena Pty Ltd [2006] NSWSC 317 Helton v Allen (1940) 63 CLR 691 Napier v Public Trustee (1980) 32 ALR 153 New South Wales Crime Commission v Jason Lee [2012] NSWSC 437 PCW (Underwriting Agencies) Ltd v Dixon [1983] 2 All ER 158 Pilkington v Inland Revenue Commissioners [1964] AC 612 Prentice v Cummins (No 6) (2003) 134 FCR 449 Pulham v Delaney [2008] NSWSC 1231 Re Vandervell's Trusts (No 2) [1974] Ch 269 Ruth Chong v Super Equity Invests Pty Ltd & Anor [2012] NSWSC 27 Ryan v Dries [2002] NSWCA 3 Shephard v Cartwright [1955] AC 431 Shepherd v Doolan [2005] NSWSC 42 Wirth v Wirth [1956] HCA 71; (1956) 98 CLR 228 Texts Cited: K R Handley, Estoppel by Conduct and Election (2006) Category: Interlocutory applications Parties: Benjamin Keil Ryan (Plaintiff/Respondent) Helen Kay Ryan (Defendant/Applicant) Representation: Counsel: M J Heath (Plaintiff/Respondent) P Barham (Defendant/Applicant) A Hill (Child in related proceedings) Solicitors: Bridge St Lawyers (Plaintiff/Respondent) Cambridge Law (Defendant/Applicant) File Number(s): 11/264760