McKay & anor v McKay [2008] NSWSC 177

McKay & anor v McKay [2008] NSWSC 177

The breakdown of the co-ownership arrangement and family relationship, with no attributable blame, destroyed the substratum of the joint venture, so in equity the defendant was entitled to return of his half share in the property, subject to adjustments for occupation fee and rates/outgoings paid by the plaintiffs, but no allowance for care services or improvements as evidence did not support such claims.

Parties
First Plaintiff: Carolyn Suzanne McKay; Second Plaintiff: Ferdinando Schiavo; Defendant: David McKay
Jurisdiction
Australia
Judgment Date
21 February 2008
Procedural Posture
Equity Proceedings / Judgment (ex Tempore)
Outcome
Plaintiffs entitled to return of the half share transferred to defendant. Defendant liable for occupation fee and to pay plaintiffs $20,000 advanced.
Legal Topics
Joint Venture, Co Ownership, Occupation Fee, Breakdown of Domestic Relationship, Constructive Trust, Return of Contributions
Equity Real Property Joint Venture Co Ownership Occupation Fee Breakdown of Domestic Relationship Constructive Trust Return of Contributions

Case Brief

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Parties

Carolyn Suzanne McKay

First Plaintiff

Ferdinando Schiavo

Second Plaintiff

David McKay

Defendant

Procedural Posture

Equity Proceedings / Judgment (ex Tempore)

Legal Issues

  1. 1 Whether the breakdown of a personal relationship affecting joint ownership entitles the original transferor to return of their share
  2. 2 Whether occupation fees are payable by a co-owner in sole occupation after relationship breakdown
  3. 3 Whether allowances are warranted for improvements and care services rendered by co-owners

Ratio Decidendi

The breakdown of the co-ownership arrangement and family relationship, with no attributable blame, destroyed the substratum of the joint venture, so in equity the defendant was entitled to return of his half share in the property, subject to adjustments for occupation fee and rates/outgoings paid by the plaintiffs, but no allowance for care services or improvements as evidence did not support such claims.

Court Disposition

Plaintiffs entitled to return of the half share transferred to defendant. Defendant liable for occupation fee and to pay plaintiffs $20,000 advanced.

Orders

  • Appointment of trustees for sale of the property
  • Sale proceeds divided into two shares (plaintiffs' share, defendant's share)