Perkins v Carey [2023] NSWSC 210

Perkins v Carey [2023] NSWSC 210

The Court found Veronica Carey did intend to gift a 50% interest to Gregory Carey at the time of purchase; therefore, there was no resulting trust. However, there was no intention to gift 100% or to forego her share of rent, so the parties each remain entitled to 50% of both the property and the rental income. Statutory trustees for sale were appointed under s 66G of the Conveyancing Act 1919 (NSW).

Jurisdiction
Australia
Judgment Date
14 March 2023
Procedural Posture
Equity (real Property) / Final Judgment (principal Judgment After Hearing)
Outcome
Orders appointing trustees for sale of the property, no declaration of resulting trust, defendant to account for 50% of rental income received prior to 29 September 2022, and directions made for calculation and distribution of sale proceeds and rental income.
Legal Topics
['co Ownership' 'statutory Trust for Sale' 'resulting Trusts' 'presumption of Advancement' 'trustees for Sale' 'accounting for Rent']
['equity' 'land Law'] ['co Ownership' 'statutory Trust for Sale' 'resulting Trusts' 'presumption of Advancement' 'trustees for Sale' 'accounting for Rent']

Case Brief

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Procedural Posture

Equity (real Property) / Final Judgment (principal Judgment After Hearing)

Legal Issues

  1. 1 ['Whether the defendant holds 50% of the property on trust for the plaintiff by resulting trust or whether it was a gift' 'Whether the defendant is required to account for 50% of the rental income to the plaintiff' 'Whether orders for the sale of the property under s 66G Conveyancing Act 1919 (NSW) should be made']

Ratio Decidendi

The Court found Veronica Carey did intend to gift a 50% interest to Gregory Carey at the time of purchase; therefore, there was no resulting trust. However, there was no intention to gift 100% or to forego her share of rent, so the parties each remain entitled to 50% of both the property and the rental income. Statutory trustees for sale were appointed under s 66G of the Conveyancing Act 1919 (NSW).

Court Disposition

Orders appointing trustees for sale of the property, no declaration of resulting trust, defendant to account for 50% of rental income received prior to 29 September 2022, and directions made for calculation and distribution of sale proceeds and rental income.

Orders

  • ['Order appointing Brenden John Miller and Michael Garvin as statutory trustees for sale under s 66G of the Conveyancing Act 1919 (NSW).' 'Order vesting the property in the trustees subject to encumbrances.' 'Order for sale of the property by the trustees pursuant to Division 6 of Part IV of the Conveyancing Act...