Fitchett v Bertram [2014] NSWSC 1462

Supreme Court New South Wales

Medium Neutral Citation: Fitchett v Bertram [2014] NSWSC 1462 Hearing dates: 22/10/2014 Decision date: 22 October 2014 Jurisdiction: Equity Division Before: McDougall J Decision: See at [48], [58]. Catchwords: EQUITY - general principles - equitable charges and liens - whether defendant entitled to constructive trust or equitable charge over plaintiff's property - where defendant assured plaintiff he would not make claim on property - where defendant constructed or substantially constructed residence on property - whether work was done on the basis of an expectation of gaining an interest in the property

EQUITY - equitable remedies - accounts and inquiries - who is entitled to proceeds of sale of property which was jointly owned - whether agreement that equitable title be held solely by defendant - where agreement made after property was purchased in joint names - where defendant paid all mortgage repayments and outgoings in relation to property - whether rent and expenses should be apportioned between the parties as co-owners - whether plaintiff entitled to occupation fee for occupation of the property by the defendant - whether there was actual or constructive ouster of the plaintiff - where domestic relationship has broken down - where ouster not in relation to joint residence

PROCEDURE - costs - departing from the general rule - order for costs on indemnity basis - where offer made under Uniform Civil Procedure Rules 2005 (NSW) - whether real element of compromise in offer - where logic of offer follows reasoning of judgment Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Callow v Rupchev (2009) 14 BPR 27,533 Forgeard v Shanahan (1994) 35 NSWLR 206 McKay v McKay [2008] NSWSC 177 Payne v Rowe (2012) 16 BRP 30,869 Ryan v Dries (2002) 10 BPR 19,497 Category: Principal judgment Parties: Lois Margaret Fitchett (Plaintiff/Cross-Defendant) Michael James Bertram (Defendant/Cross-Claimant) Representation: Counsel: J Gatland (Defendant) Solicitors: Kennedy & Cooke (Plaintiff/Cross-Defendant) Clark Rideaux (Defendant/Cross-Claimant) File Number(s): 2013/317904