Fitchett v Bertram [2014] NSWSC 1462

Fitchett v Bertram [2014] NSWSC 1462

The defendant failed to establish entitlement to a constructive trust or equitable charge over the Nerrigundah property as there was no expectation engendered by the plaintiff. The net proceeds of sale of the Narooma property should be apportioned between the parties according to their legal interests, after adjustment for contributions and income. No occupation fee is payable as there was neither actual nor constructive ouster, and an appropriate costs order follows the offer of compromise under Uniform Civil Procedure Rules.

Jurisdiction
Australia
Judgment Date
22 October 2014
Procedural Posture
Equity / Principal Judgment
Outcome
Plaintiff entitled to $68,439.30 and defendant to $168,414.30 from the proceeds of sale; accrued interest to be paid in the same proportion; all other claims for relief dismissed; costs orders as specified.
Legal Topics
['equitable Charges and Liens' 'constructive Trust' 'equitable Remedies' 'accounts and Inquiries' 'proceeds of Sale' 'joint Ownership' 'apportionment of Rent and Expenses' 'occupation Fee' 'domestic Relationship Breakdown' 'costs Orders' 'offer of Compromise']
['equity'] ['equitable Charges and Liens' 'constructive Trust' 'equitable Remedies' 'accounts and Inquiries' 'proceeds of Sale' 'joint Ownership' 'apportionment of Rent and Expenses' 'occupation Fee' 'domestic Relationship Breakdown' 'costs Orders' 'offer of Compromise']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity / Principal Judgment

Legal Issues

  1. 1 ["Whether the defendant is entitled to a constructive trust or equitable charge over the plaintiff's property" 'How proceeds of sale of jointly owned property should be apportioned' "Whether occupation fee is payable due to 'ouster' or domestic relationship breakdown" 'Appropriate costs orders given the offer of compromise']

Ratio Decidendi

The defendant failed to establish entitlement to a constructive trust or equitable charge over the Nerrigundah property as there was no expectation engendered by the plaintiff. The net proceeds of sale of the Narooma property should be apportioned between the parties according to their legal interests, after adjustment for contributions and income. No occupation fee is payable as there was neither actual nor constructive ouster, and an appropriate costs order follows the offer of compromise under Uniform Civil Procedure Rules.

Court Disposition

Plaintiff entitled to $68,439.30 and defendant to $168,414.30 from the proceeds of sale; accrued interest to be paid in the same proportion; all other claims for relief dismissed; costs orders as specified.

Orders

  • ['Plaintiff entitled to $68,439.30 from Narooma proceeds' 'Defendant entitled to $168,414.30 from Narooma proceeds' 'Accrued interest to be paid in same proportion' "Defendant to pay plaintiff's costs up until and including 18 September 2014" "Plaintiff to pay defendant's costs thereafter, assessed on indemnity...