Thorn as Executrix of the Estate of the Late Betty McAuley v Boyd (No 2) [2015] NSWSC 199

Supreme Court New South Wales

Medium Neutral Citation: Thorn as Executrix of the Estate of the Late Betty McAuley v Boyd (No 2) [2015] NSWSC 199 Hearing dates: 12 February 2015 Date of orders: 13 March 2015 Decision date: 13 March 2015 Jurisdiction: Equity Division Before: Robb J Decision: Declarations that the defendant holds his interest in the property comprising Lot 10 in Deposited Plan 28150 at Sutherland (the Property), upon a constructive trust for the plaintiff to the value of $200,000.

Declaration that so much of the judgment debt in the sum of $260,000 created by order 3 made by the Court on 6 November 2014 as represents a principal sum of $200,000, and an award of pre-judgment interest under the Civil Procedure Act 2005 (NSW) s 100 on that principal sum, together with interest accruing after judgment on that principal sum, pursuant to s 101 of the Civil Procedure Act, constitutes an equitable charge on the defendant's interest in the Property.

Grant liberty to apply in respect of the implementation of these orders, including for an order for sale to realise the charge, and an order in respect of the sale of the Property pursuant to s 66G of the Conveyancing Act 1919 (NSW).

Order the defendant to pay the plaintiff's costs of the proceedings on the ordinary basis to 31 December 2014 and on the indemnity basis from 13 December 2013.

Direct that exhibits and documents produced on subpoena may be returned in accordance with the requirements of the Uniform Civil Procedure Rules. Catchwords: EQUITY – tracing part of invalid gift procured by unconscionable conduct into property owned by defendant – part of gift used to repay mortgage over property. COSTS – Calderbank offer – portion of costs payable on indemnity basis. Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Catherine Margaret Thorn as executrix of the estate of the late Betty McAuley (plaintiff) Ian Geoffrey Boyd (defendant) Representation: Counsel: Catherine Gleeson (plaintiff)