McEvoy v McEvoy (No 2) [2013] NSWSC 1162

Supreme Court New South Wales

Medium Neutral Citation: McEvoy v McEvoy (No 2) [2013] NSWSC 1162 Hearing dates: 20/08/2013 Decision date: 30 August 2013 Before: Pembroke J Decision: See paragraph [23] Catchwords: EQUITY & TRUSTS - equitable personal obligation - nature and quantification - approach to assessment Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Gill v Gill (1921) 21 SR (NSW) 400 Hons v Hons [2010] NSWSC 247 Ide v Ide [2004] NSWSC 751 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 O'Sullivan Partners (Advisory) Pty Ltd v Foggo [2012] NSWCA 40 The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 10) [2009] WASC 107; (2009) 39 WAR 1 Williams v Williams [1897] 2 Ch 12 Category: Consequential orders Parties: Aidan McEvoy - first plaintiff Natahl Cara Liane McEvoy - second plaintiff Mary McEvoy - defendant Representation: J J T Loofs - for the plaintiffs G Waugh - for the defendant Smallwoods Lawyers - for the first and second plaintiffs Henry Packham - for the defendant File Number(s): 2012/174694

Judgment

Introduction 1In my principal judgment [2012] NSWSC 1494, I held that the defendant holds certain land at Jamberoo on trust for her son and daughter-in-law (the plaintiffs) as to a one half share. I also held that the plaintiffs were subject to an equitable personal obligation to pay to the defendant an amount to be agreed or determined in accordance with the reasoning set out in paragraphs [38] - [40] of that judgment. 2The parties have not agreed on the quantification of the plaintiffs' personal obligation and it has been necessary to conduct a further hearing. It may assist if I say something at the outset about the nature of an equitable personal obligation and explain the principles which govern the assessment of an appropriate amount.