Simmons v Simmons [2019] NSWSC 1050

Supreme Court New South Wales

Medium Neutral Citation: Simmons v Simmons [2019] NSWSC 1050 Hearing dates: 17 & 18 April; 17 May; 17 July 2019 Date of orders: 22 August 2019 Decision date: 22 August 2019 Jurisdiction: Equity Before: Slattery J Decision: Contracts Review Act claim dismissed. No resulting trust found for the second defendant's benefit. Notional estate designated. Order for family provision made in the sum of $140,000. The plaintiff's costs are capped at $80,000 but his recovery against the second defendant is reduced to 75 per cent of his capped costs, a maximum of $60,000. Catchwords: TRUSTS – resulting trust – plaintiff is the grandson of the second defendant and the son of the first defendant and of her deceased husband – second defendant alleges she supplied all the purchase money to acquire real property in Cootamundra that she purchased as a joint tenant with the first defendant and with the deceased – plaintiff alleges the second defendant agreed to loan the purchase money for the Cootamundra property to the deceased and to the first defendant and that they held the Cootamundra property beneficially, owing only a liability in debt to the second defendant – whether the first defendant and the deceased held their respective shares in the Cootamundra property on resulting trust for the second defendant – Cootamundra property sold and the proceeds applied to purchase another property, the Emerald Drive property, in the names of the second defendant, the deceased and the plaintiff – at about the time of the sale of the Cootamundra property, the deceased and the first defendant separate and reach a property settlement under the Family Law Act but are not divorced – the Emerald Drive property in turn was sold and its proceeds applied to purchase the final property, which was held in the name of the second defendant – final property sold to provide an accommodation deposit, so the second defendant can have secure accommodation in an aged care facility – whether the second defendant is the beneficial owner of 100% of the final property and in turn of the accommodation deposit.