Dunphy v Russell [2018] NSWSC 721

Supreme Court New South Wales

Medium Neutral Citation: Dunphy v Russell [2018] NSWSC 721 Hearing dates: 3 and 4 April 2018 Decision date: 24 May 2018 Jurisdiction: Equity Before: Sackville AJA Decision: 1. Declare that the Defendant holds the proceeds of sale of the Property referred to in the Summons on trust for the Plaintiff as to a one third share. 2. Order that the Defendant pay from the proceeds of sale of the Property the sum of $379,000, being one third of the proceeds of sale. 3. Direct that the moneys held in the controlled moneys account referred to in the orders made by Darke J on 27 October 2017 be paid to the Plaintiff or at his direction. 4. Order that the Defendant pay the Plaintiff's costs of the proceedings. 5. Note that Orders 1-4 are subject to Orders 6-8. 6. Direct that any written submissions proposing amendments to Orders 1-4 be filed and served within 14 days. 7. Direct that if one party files written submissions within 14 days, the other party should file a reply within a further seven days. 8. If no written submissions are received within 14 days, Orders 1-4 will become final at the expiration of 14 days. Catchwords: TRUSTS – father contributes funds to the acquisition of a property by his daughter – whether the contribution was an investment or gift – whether the parties intended a trust to be created Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C(1), 54A Evidence Act 1995 (NSW), s 140 Real Property Act 1900 (NSW), s 74K Statute of Frauds 1677 Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (In Liq) (2000) 202 CLR 588; [2000] HCA 25 Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56 Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 Byrnes v Kendle (2011) 243 CLR 253 Cadd v Cadd (1909) 9 CLR 171; [1909] HCA 59 Ciaglia v Ciaglia [2010] NSWSC 341; 269 ALR 175 CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6 Laidlaw v Hillier Hewitt Esley Pty Ltd [2009] NSWCA 44 Last v Rosenfeld [1972] 2 NSWLR 923 Nguyen v Phan (No 2) [2015] VSC 634 at [237] Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491 Rochefoucauld v Boustead [1895] 1 Ch 196 Category: Principal judgment Parties: Brian Patrick Dunphy (Plaintiff) Michelle Catherine Russell (nee Murphy) (Defendant) Representation: Counsel: Ms E Peden / Ms J Mee (Plaintiff) Ms A Power (Defendant)