Chaudhary v Chaudhary [2016] NSWSC 1423

Supreme Court New South Wales

Medium Neutral Citation: Chaudhary v Chaudhary [2016] NSWSC 1423 Hearing dates: 2 May – 4 May 2016 Date of orders: 06 October 2016 Decision date: 06 October 2016 Jurisdiction: Common Law Before: Campbell J Decision: (1) Declare the advance of $1,200,000 from the plaintiff was a gift to the first defendant only; not a gift to the second defendant; and not a loan; (2) Refuse the plaintiff's claim for an order for possession; (3) Refuse the plaintiff's claim for an order under s 66G Conveyancing Act 1919; (4) Under s 7(1)(d) Contracts Review Act 1980 order that the plaintiff, first defendant and, if necessary for its legal effect, the second defendant execute a discharge of mortgage registered dealing no. XXXXXXXX dated 13 December 2004; (5) Under s 8 schedule 1 Contracts Review Act 1980 the plaintiff, first defendant and second defendant are to take all steps necessary on the part of each of them to procure the registration of the discharge of mortgage referred to in order 5 on the Register maintained under s 31B Real Property Act 1900, for the purposes of that Act; (6) Liberty to apply for further orders or directions necessary to give effect to these orders; (7) The plaintiff to pay the second defendant's costs of the proceedings. Catchwords: REAL PROPERTY – claim for possession following default on mortgage – whether advanced sum a loan or a gift– advance from father to son to allow purchase of property – property acquired by son and then wife as co-owners – mortgage payable on demand with only son liable for the sum but both to possession – where mortgage not registered at time of purchase but many years later – demand for sum made when marriage between son and then spouse broke down – no interest or regular repayments made – whether mortgage secured anything – whether spouse's claim to possession affected by mortgage