Harvey v Barton [2013] NSWSC 1779

Supreme Court New South Wales

Medium Neutral Citation: Harvey v Barton [2013] NSWSC 1779 Hearing dates: 22-26 July, 1-2 August, 30 October 2013 Decision date: 06 December 2013 Jurisdiction: Equity Division Before: Robb J Decision: (1)Declaration that the defendant holds her title and interest in the land situate at 148 Kingsway, Woolooware, New South Wales Folio identifier 4/8658 (the "Property") on the basis that 35% is held on a resulting trust for the plaintiff, and the amount of any loan secured by any mortgage or charge over the title to the Property is to be discharged out of the 65% remaining interest in the Property held by the defendant beneficially. (2)Subject to the plaintiff complying with all relevant rules concerning the filing of consents and necessary affidavits in relation to the appointment of trustees for sale, the court makes orders (2)-(7) set out in par 115 of these reasons for judgment. (3)The court makes orders (8)-(11) set out in par 115 of these reasons for judgment. (4)Order that the defendant pay the plaintiff's costs on the ordinary basis. Catchwords: RESULTING TRUST OF PROPERTY - alternatively constructive trust - whether money given by plaintiff to defendant was a gift or loan - credibility of witnesses - conversion of property by failing to return it. Legislation Cited: Civil Procedure Act 2005 Conveyancing Act 1919 Limitation Act 1969 Limitation Act 1980 (UK) Cases Cited: Brown v Brown (1993) 31 NSWLR 582 Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 Calverley v Green (1984) 155 CLR 242 Vukic v Luca Grbin & Ors; Estate of Zvonko Grbin [2006] NSWSC 41 Category: Principal judgment Parties: Maria Luz Harvey (Plaintiff) Maria Luz Barton (Defendant) Representation: Counsel: D. Eardley (Plaintiff) In person (Defendant) Solicitors: Legal Aid NSW (Plaintiff) In person (Defendant) File Number(s): 2012/201450