Ryan v. Dries [2002] NSWCA 3

Ryan v. Dries [2002] NSWCA 3

The presumption of resulting trust was not rebutted; the respondent was entitled to a 43% interest in the property based on her contribution to the purchase and half the mortgage. The appellant, having paid all mortgage instalments, was entitled to an allowance for the respondent's share, but as a seeker of equity was required to account for occupation rent particularly following the respondent's exclusion from the property. Relief under Contracts Review Act was not available due to absence of a specific enforceable contract and the equitable outcome already achieved.

Jurisdiction
Australia
Judgment Date
06 February 2002
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal allowed
Legal Topics
['maxims He Who Seeks Equity Must Do Equity' 'co Ownership Accounting in Respect of Occupation, Repairs, Maintenance, Outgoings, Mortgage Repayments' 'resulting Trusts' 'contributions to Purchase Money' 'contracts Review Act Applications' 'pleadings Claims in the Alternative']
['equity' 'real Property' 'trusts and Trustees' 'procedure'] ['maxims He Who Seeks Equity Must Do Equity' 'co Ownership Accounting in Respect of Occupation, Repairs, Maintenance, Outgoings, Mortgage Repayments' 'resulting Trusts' 'contributions to Purchase Money' 'contracts Review Act Applications' 'pleadings Claims in the Alternative']

Case Brief

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Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Whether the presumption of resulting trust was rebutted between co-owners of property' 'Whether mortgage advances and contributions to outgoings affect beneficial interests/proportions' 'What principles of accounting apply between co-owners, including occupation rent and mortgage repayments' 'Whether accounting should include both principal and interest on mortgage repayments' 'Whether the respondent should receive relief under the Contracts Review Act 1980']

Ratio Decidendi

The presumption of resulting trust was not rebutted; the respondent was entitled to a 43% interest in the property based on her contribution to the purchase and half the mortgage. The appellant, having paid all mortgage instalments, was entitled to an allowance for the respondent's share, but as a seeker of equity was required to account for occupation rent particularly following the respondent's exclusion from the property. Relief under Contracts Review Act was not available due to absence of a specific enforceable contract and the equitable outcome already achieved.

Court Disposition

Appeal allowed

Orders

  • ['Set aside orders 2 and 3, and declaration 1, of lower court.' 'Appellant to pay to respondent within 28 days the sum of $133,070.00 (less any amount paid since 23rd March 2001) plus interest at Supreme Court rates from 23rd June 2001 on any outstanding balance, and in return respondent to transfer her interest in...