Shearer v Shearer [2012] NSWSC 939

Supreme Court New South Wales

Medium Neutral Citation: Shearer v Shearer [2012] NSWSC 939 Hearing dates: 31 May 2012 Decision date: 31 August 2012 Jurisdiction: Equity Division Before: Davies J Decision: 1. Judgment for the Plaintiff against the First Defendant in the sum of $628,234.95. 2. Judgment for the Plaintiff against the Second Defendant in the sum of $20,041.66. 3. The Court declares that the Defendants hold the property situated at 17/135-146 Fryar Road, Eagleby Queensland 4207 being Lot 17, SP146810 with title reference 50397725 (the "Queensland Property") on trust for the Plaintiff. 4. If at the date of making this Order, the Queensland Property has not been sold in accordance with the Orders of the Court dated 14 July 2011 and 10 August 2011, then within 28 days of the date of this Order, the Defendants are to undertake at their cost all steps necessary to transfer the Queensland Property to the Plaintiff. 5. In the event that at the date of making this order the Queensland Property has not been sold and within 28 days of the date of this Order the Defendants have not undertaken all steps necessary to transfer the Queensland Property to the Plaintiff pursuant to paragraph 4 above, the Registrar in Equity is authorised to give effect to paragraph 4 of these Orders, including executing documents. 6. Paragraphs 8 to 10 of the Court's orders dated 10 August 2011 are set aside. 7. Further to paragraph 7 of the Court's Orders dated 14 July 2011, the passports of the First Defendant which are in the custody of Allan McEwen of Miller & Young, the former solicitor for the First Defendant, are to be transferred into the custody of Richard Smallwood, the solicitor for the Plaintiff, or his agent and held by Mr Smallwood only until the requirements of the First Defendant imposed by these Orders are satisfied. 8. Any party has liberty to apply to Davies J on 2 days' notice in relation to these Orders. 9. The Plaintiff's costs of the proceedings are to be paid by the First Defendant. Catchwords: REAL PROPERTY - resulting trust - misuse of Plaintiff's funds to purchase property in Defendant's name - misappropriation of Plaintiff's funds generally by estranged wife - forged loan variations. Legislation Cited: Duties Act 1997 Family Law Act 1975 Cases Cited: Black Uhlans Incorporated v New South Wales Crime Commission & Ors [2002] NSWSC 1060 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 In re Kerrigan; ex parte Jones (1947) 47 SR (NSW) 76 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Category: Principal judgment Parties: Barry David Shearer (Plaintiff) Delia Amelia Shearer (also known as Delia Amelia Sanchez Garcia) (First Defendant) Graham Colin Radnedge (Second Defendant) Representation: Counsel: D Klineberg (Plaintiff) In person (First Defendant) No Appearance (Second Defendant) Solicitors: Smallwoods Lawyers (Plaintiff) In person (First Defendant) No Appearance (Second Defendant) File Number(s): 2011/214754