Tonna v Mendonca [2019] NSWSC 1849

Supreme Court New South Wales

Medium Neutral Citation: Tonna v Mendonca [2019] NSWSC 1849 Hearing dates: 22-24 May 2019; 27-31 May 2019; 3-4 June 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: In the Tonna Proceedings 1. Declare that the first defendant holds the legal title to the property referred to in these proceedings as the Galston Property on a resulting trust for herself and the plaintiffs in the proportions that reflect their respective contributions to the purchase price for the Galston Property (the precise proportions to be as specified in orders to be entered following determination of the legal costs referable to the conveyancing aspects of the contract for sale to the first defendant of the Galston Property). 2. Order the first defendant to execute and provide to the plaintiffs, within 28 days of the making of orders specifying the proportionate share of the plaintiffs' beneficial interest in the Galston Property, in accordance with Order 1 above, a transfer in registrable form in respect of the Galston Property to record the plaintiffs' interest in the Galston Property as declared by Order 1 above. 3. Order the plaintiffs to account to the first defendant for their proportionate share of the mortgage repayments referable to the original amount advanced under the said loan facility (i.e., not the increased amount of the facility drawn down by the first defendant after the acquisition of the Galston Property) from February 2015 (taking into account that an amount was in fact paid by the plaintiffs in May 2015 towards the mortgage repayments) and for there to be a proportionate adjustment of amounts paid by the first defendant in relation to expenses associated with the Galston Property (Council rates, water rates and insurance premiums); such accounting and adjustment to be in accordance with orders to be made following the provision of any further submissions on that issue. 4. Order that, on any subsequent sale of the Galston Property, the first defendant's proportionate share of the net proceeds of sale be reduced by the amount required to discharge the increased amount of the ANZ loan facility drawn down by the first defendant after the acquisition of the Galston Property. 5. Direct the parties to file short minutes of order to give effect to Order 1 above (as to the proportionate contributions by each of the first defendant on the one hand and the plaintiffs on the other hand to the purchase price, having regard to the conveyancing costs referred to in Order 1 above), and as to the necessary adjustments to be made in accordance with these reasons in relation to expenses paid by the first defendant in respect of the Galston Property, within 21 days (and, failing agreement as to the said proportionate contributions and relevant adjustments, to file and serve brief written submissions on that issue within that time period). 6. Dismiss the plaintiffs' claim against the second and third defendants. 7. Reserve the question of costs and direct the parties to file brief written submissions on costs within 21 days, with a view to costs being dealt with on the papers.