Sayers v Sayers [2018] NSWSC 519

Supreme Court New South Wales

Medium Neutral Citation: Sayers v Sayers [2018] NSWSC 519 Hearing dates: 12, 13 & 14 March 2018 Date of orders: 30 April 2018 Decision date: 28 May 2018 Jurisdiction: Equity Before: Slattery J Decision: Dismiss the Amended Summons. On the Cross-Summons order that all funds in Court be paid out to defendant/cross-claimant. Order that the plaintiffs/cross-defendants pay the defendant/cross-claimant's costs of the proceedings. Liberty granted to the parties to apply for any special costs orders. Catchwords: EQUITY – Proprietary Estoppel – distribution of proceeds paid into Court – two brothers own real property – one brother dies in 2008 and his widow lives on the property until a short while after her husband's death property is sold under Conveyancing Act, s 66G at the suit of the surviving brother – proceeds of sale paid into Court after payment out of mortgage and sale expenses – dispute about proceeds in Court – widow of the deceased brother claims all the proceeds in Court – surviving brother and his two sons also claim all the proceeds in Court – proprietary estoppel claim – whether the deceased brother promised the surviving brother and his children that the deceased brother would leave the deceased brother's interest in the property to the surviving brother and surviving brother's children upon the death of the deceased brother – whether the loan obligations secured by mortgage over the property were taken out for the benefit of both the deceased brother and the surviving brother or solely for the surviving brother – whether the surviving brother's payment of interest on the mortgage was for the benefit of the deceased brother's interest in the property or solely for the benefit of the surviving brother and his wife – whether the surviving brother paid council rates upon the property and made improvements to the property for which he is now entitled to reimbursement from the estate of the deceased brother out of the proceeds of sale of the property. Legislation Cited: Conveyancing Act 1919, s 66G Farm Debt Mediation Act 1994 Limitation Act 1969, s 14(1)(a) Real Property Act 1900 Succession Act 2006, ss 12(1), 111 Wills, Probate and Administration Act 1898, s 15(1) Cases Cited: Ashton v Pratt (2015) 88 NSWLR 281 Blacket v Barnett [2017] NSWSC 1032 Crago v McIntyre [1976] 1 NSWLR 729 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Forgeard v Shanaham (1994) 35 NSWLR 206 Gerace v Auzhair Supplies Pty Ltd (in liq) (2014) 87 NSWLR 435 Hewett v Court (1983) 149 CLR 639 Moule v Garrett (1872) LR 7 Ex 101 Orr v Ford (1989) 167 CLR 316 Plunkett v Bull (1915) 19 CLR 544 Ryan v Dries [2002] NSWCA 3 Saunders v Vautier (1841) Cr & Ph 240 Shirlaw v Taylor (1991) 31 FCR 222 Tomlinson v Ramsey Food Processing Ltd (2015) 256 CLR 507 Whitehead v Whitehead [2002] NSWSC 486 Texts Cited: RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) PJ Butt, Land law (7th ed 2017, Thomson Reuters) Category: Principal judgment Parties: First Plaintiff/Cross Defendant: Keith James Sayers Second Plaintiff/Cross Defendant: Inesita Sayers Third Plaintiff/Cross Defendant: George Sayers Fourth Plaintiff/Cross Defendant: Neil Sayers First Defendant/Cross Claimant: Toni Sayers Representation: Counsel: First to Fourth Plaintiffs/Cross Defendants: C.P. Locke First Defendants/Cross Claimant: D. Robertson