Ly v Ly [2012] NSWSC 643

Supreme Court New South Wales

Medium Neutral Citation: Ly v Ly [2012] NSWSC 643 Hearing dates: 29 May 2012 Decision date: 29 May 2012 Before: Rein J Decision: 1. Defendant holds his 30% interest in the property at Canley Heights on trust for the plaintiff. 2. Plaintiff to reimburse the defendant in the sum of $8000. 3. Defendant to pay 80% of the plaintiff's costs as assessed or agreed. 4. Amount of $8000 due from the plaintiff to the defendant to be offset against the costs assessed as payable by the defendant to the plaintiff. Catchwords: EQUITY - trusts and trustees - implied trusts - constructive trusts - where co-owner of a property fails to contribute to mortgage repayments and other necessary expenses - that co-owner holds his interest in the property on constructive trust for the co-owner who has made those payments

REAL PROPERTY - general principles - incidents of estates and interests in land - joint tenancy and tenants in common - where beneficial to first co-owner that the second co-owner vacate the property - allowance should be made for notional rent that first co-owner would have paid

PROCEDURE - judgments and orders - satisfaction and set-off of judgments - where defendant has indicated that he has no money to pay any amounts sought from him - plaintiff entitled to have her judgment debt to the defendant set-off against the costs order in her favour Cases Cited: Luke v Luke (1936) 36 SR (NSW) 310 Muschinski v Dodds (1985) 160 CLR 583 Ryan v Dries [2002] NSWCA 3 The State of Western Australia v Bowman (Supreme Court of Western Australia, Sanderson M, 11 November 1997, unreported, BC9706022) Category: Principal judgment Parties: Kim Soy Ly (Plaintiff) Kim Tap Ly (Defendant) Representation: Kim Soy Ly (Plaintiff in person) Kim Tap Ly (Defendant in person) File Number(s): SC 2011/263671