Foundas v Arambatzis [2020] NSWCA 47

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Foundas v Arambatzis [2020] NSWCA 47 Hearing dates: 13 March 2020 Decision date: 24 March 2020 Before: Bell P at [1]; Basten JA at [2]; White JA at [3] Decision: (1) Appeal allowed in part. (2) Vary the orders made on 15 October 2018 as follows: (a) discharge order 3(f) and substitute in lieu thereof an order that "balance to be paid to the plaintiff and the defendant in the proportions of 48.7 per cent and 51.3 per cent"; and (b) in order 5 substitute the sum of $103,704.49 for $108,983.93. (3) Otherwise dismiss the appeal. (4) Order the appellant pay the respondents' costs of the appeal. (5) Discharge the stay of the orders of 15 October 2018 and 6 September 2019. (6) Order that the appellant deliver vacant possession of the property at 12 Magee Street, Ashcroft to the second respondents (trustees for sale) within 28 days. (7) Order that the second respondents be at liberty to obtain a writ for possession forthwith, such writ not to be executed before the expiry of 28 days. (8) Order that in accounting for the balance to be paid to the first respondent and the appellant in accordance with the orders of 15 October 2018, as varied by these orders, the second respondents charge the appellant with a reasonable market rent for her occupation of the property from 29 October 2018 to the date of her delivering vacant possession. (9) Give liberty to the parties (including the second respondents) to apply to the primary judge for any further or consequential orders. Catchwords: LAND LAW — Co-ownership — Resulting trust – whether proceeds from sale of property be distributed in accordance with the legal title – where property held as tenants in common – where unequal contributions by co-owners to acquisition costs– whether arguable that presumption of resulting trust not rebutted