Szeto v Situ (No 4) [2021] NSWSC 1691

Szeto v Situ (No 4) [2021] NSWSC 1691

The Court found that the Brother occupied the Lakemba Property from April 1999 to December 2005 and that the Sister occupied the Turrella Property throughout the disputed period. Because each party sought contribution for outgoings, interest and loan repayments, occupation fees were to be allowed without needing to decide ouster, but limited to the amount allowed by way of contribution. The Brother was not liable for judgment interest under s 101 because no money judgment had yet been directed, but in the accounting he had to account for the benefit of using the Sister's share of the Carlton sale proceeds by reference to the interest rate charged by the Bank on his loan. Given the lack of...

Jurisdiction
Australia
Judgment Date
23 December 2021
Procedural Posture
Equity Proceedings Concerning Accounting Between Co Owners After Earlier Determinations of Proprietary Interests in Properties / Principal Judgment on Remaining Accounting Issues and Directions for Final Five Tables
Outcome
The Court resolved the remaining accounting issues and directed the preparation of final Five Tables reflecting its conclusions.
Legal Topics
['accounting Between Co Owners' 'equitable Estates and Interests' 'beneficial Ownership' 'occupation Fees' 'rental Income and Outgoings' 'loan Repayments' 'proceeds of Sale' 'contribution to Expenses']
['equity' 'property Law'] ['accounting Between Co Owners' 'equitable Estates and Interests' 'beneficial Ownership' 'occupation Fees' 'rental Income and Outgoings' 'loan Repayments' 'proceeds of Sale' 'contribution to Expenses']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Accounting Between Co Owners After Earlier Determinations of Proprietary Interests in Properties / Principal Judgment on Remaining Accounting Issues and Directions for Final Five Tables

Legal Issues

  1. 1 ['When the Brother occupied the Lakemba Property and when the Sister occupied the Turrella Property' "Whether the Brother is entitled to an occupation fee for the Sister's occupation of the Turrella Property and whether the Sister is entitled to an occupation fee for the Brother's occupation of the Lakemba Property" 'Whether the Brother should account for any benefit derived from use of the proceeds of sale of the Carlton Property by paying interest to the Sister' 'Whether the Sister was entitled to reimbursement of expenses said to have been incurred by her in respect of the Lakemba Property and the Turrella Property' 'Whether the Sister should be permitted to propose further changes to the Five Tables at a late stage']

Ratio Decidendi

The Court found that the Brother occupied the Lakemba Property from April 1999 to December 2005 and that the Sister occupied the Turrella Property throughout the disputed period. Because each party sought contribution for outgoings, interest and loan repayments, occupation fees were to be allowed without needing to decide ouster, but limited to the amount allowed by way of contribution. The Brother was not liable for judgment interest under s 101 because no money judgment had yet been directed, but in the accounting he had to account for the benefit of using the Sister's share of the Carlton sale proceeds by reference to the interest rate charged by the Bank on his loan. Given the lack of...

Court Disposition

The Court resolved the remaining accounting issues and directed the preparation of final Five Tables reflecting its conclusions.

Orders

  • ['The Brother is to bring in short minutes, in the form of the Five Tables, reflecting the conclusions in the judgment.' 'The same date should be applied for the purposes of each of Table 1, Table 2, Table 3 and Table 4.' 'The allowance for occupation fees should be calculated as at the same date at which...