Bowden v Bowden (No. 3) [2022] NSWSC 162

Bowden v Bowden (No. 3) [2022] NSWSC 162

Because the defendants accepted adoption of the referee's report without relying on the unsubstantiated $67,060 non-financial contribution claim, the defect identified in the referee's treatment of non-financial contributions could be remedied by adopting the report subject to that concession. The plaintiff's proposed $8,000 plumbing adjustment was rejected because the defendants' inability to prove that amount did not establish that the plaintiff had incurred it. On the revised contributions, the first plaintiff's share was 68.12% and the first defendant's share was 31.88%. As the plaintiff had not demonstrated financial capacity to buy out the defendants' interest and sale should...

Jurisdiction
Australia
Judgment Date
24 February 2022
Procedural Posture
Equity Proceeding Concerning Co Ownership of Land, Adoption of a Referee's Report, Appointment of Trustees for Sale, Possession and Costs / Consequential Orders Following Prior Judgments and Hearing on 23 February 2022
Outcome
Referee's report adopted subject to the defendants' concession; parties' ownership interests declared; stay on trustees for sale and possession dissolved from 17 March 2022; writ for possession granted but not to be executed before 21 April 2022; plaintiffs' motion of 26 January 2022 dismissed with costs; costs...
Legal Topics
['court Referral to a Referee' "adoption and Variation of Referee's Report" 'co Owners of Land' 'trustees for Sale' 'possession of Land' 'stay Pending Possible Appeal' 'specified Gross Sum Costs Order']
['civil Procedure' 'equity' 'property Law' 'trusts' 'costs'] ['court Referral to a Referee' "adoption and Variation of Referee's Report" 'co Owners of Land' 'trustees for Sale' 'possession of Land' 'stay Pending Possible Appeal' 'specified Gross Sum Costs Order']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Co Ownership of Land, Adoption of a Referee's Report, Appointment of Trustees for Sale, Possession and Costs / Consequential Orders Following Prior Judgments and Hearing on 23 February 2022

Legal Issues

  1. 1 ["Whether the referee's report should be adopted subject to the defendants no longer pressing the claimed non-financial contributions of $67,060." "What percentage interests the first plaintiff and first defendant have in the Nowra property after the defendants' concession." "Whether the plaintiff's asserted additional $8,000 for plumbing should be added back to his contribution." 'Whether the stay on the appointment of trustees for sale should be dissolved and when orders for possession and a writ for possession should take effect.' "Whether the plaintiffs had demonstrated financial capacity to purchase the defendants' interest in the Nowra property." 'What costs orders should be made for the proceedings before Pembroke J and for the post Pembroke J costs.' 'Whether a specified gross sum costs order should be pursued instead of assessed costs.']

Ratio Decidendi

Because the defendants accepted adoption of the referee's report without relying on the unsubstantiated $67,060 non-financial contribution claim, the defect identified in the referee's treatment of non-financial contributions could be remedied by adopting the report subject to that concession. The plaintiff's proposed $8,000 plumbing adjustment was rejected because the defendants' inability to prove that amount did not establish that the plaintiff had incurred it. On the revised contributions, the first plaintiff's share was 68.12% and the first defendant's share was 31.88%. As the plaintiff had not demonstrated financial capacity to buy out the defendants' interest and sale should...

Court Disposition

Referee's report adopted subject to the defendants' concession; parties' ownership interests declared; stay on trustees for sale and possession dissolved from 17 March 2022; writ for possession granted but not to be executed before 21 April 2022; plaintiffs' motion of 26 January 2022 dismissed with costs; costs...

Orders

  • ["Order pursuant to Uniform Civil Procedure Rules, r 20.24(1)(a) that the referee's report of Mr Schon Condon dated 25 May 2020 and filed on 16 June 2020 is adopted subject to the defendants' concession that they will no longer press their claim for non-financial contributions to the Nowra property of $67,060."...