Sharkey v Nissi [2015] NSWSC 1266

Supreme Court New South Wales

Medium Neutral Citation: Sharkey v Nissi [2015] NSWSC 1266 Hearing dates: 16 – 20 February 2015 and 9 March 2015 Date of orders: 02 September 2015 Decision date: 02 September 2015 Jurisdiction: Equity Before: Robb J Decision: (1) The plaintiff's claim is dismissed.

(2) The first cross defendant is ordered to pay damages to the cross claimant in an amount to be determined in accordance with order (5).

(3) The first cross defendant is ordered to pay interest to the cross claimant in an amount to be determined in accordance with order (5).

(4) The cross claim against the second cross defendant is dismissed.

(5) The parties are directed to confer about the amount of damages and interest that the cross defendant should be ordered to pay to the cross claimant in accordance with these reasons for judgment (in particular par 406), and if agreement is not reached, the parties will be required to submit further submissions to the court at a time to be determined.

(6) The parties are directed to confer about the orders for costs that should be made, and if agreement is not reached, the parties will be required to submit submissions to the court at a time to be determined.

(7) The exhibits and any documents produced to the court on subpoena may be returned forthwith in accordance with the rules immediately upon the making of final orders in these proceedings. Catchwords: EQUITY – trusts and trustees – plaintiff and defendant engaged to be married and purchased first property as joint tenants and joint mortgagors in 2005 – plaintiff paid deposit, stamp duty, conveyancing fees, all mortgage repayments and repaid mortgage debt – parties' relationship ended – plaintiff claims defendant orally agreed to hold her interest in the property on trust for him – whether an express trust arose – no oral agreement as alleged – express trust not established – whether resulting trust arose in favour of plaintiff –whether presumption of advancement because first property purchased in contemplation of marriage – first property not purchased in contemplation of marriage – defendant did not rebut presumption of resulting trust – defendant held her joint interest in first property on trust for plaintiff