Harry Bernard Thynne v Jevny Pty Limited and Anor [2022] NSWSC 1774

Harry Bernard Thynne v Jevny Pty Limited and Anor [2022] NSWSC 1774

The Memorandum of Wishes did not create a present trust over Mona Road in favour of Harry and Patrick. Victoria was free to deal with Mona Road during her lifetime, subject to a floating obligation to leave what remained of Mona Road, any replacement property, or proceeds at her death, and that obligation would crystallise only then. Because Harry had no present trust interest or caveatable interest, caveat AS583181 had to be withdrawn. Even if a caveatable interest had existed, the balance of convenience would not have favoured maintaining the caveat.

Jurisdiction
Australia
Judgment Date
22 December 2022
Procedural Posture
Equity Proceeding Concerning a Caveat Over Real Property Under the Real Property Act 1900 (nsw) / Application Concerning Extension or Removal of Caveat AS583181
Outcome
The plaintiff was ordered to withdraw caveat AS583181 and to pay the second defendant's costs of the application.
Legal Topics
['caveatable Interest' 'real Property Act 1900 (nsw) S 74 Ma' 'memorandum of Wishes' 'testamentary Disposition' 'trusts' 'mutual Wills or Corresponding Wills' 'balance of Convenience']
['equity' 'land Law' 'succession'] ['caveatable Interest' 'real Property Act 1900 (nsw) S 74 Ma' 'memorandum of Wishes' 'testamentary Disposition' 'trusts' 'mutual Wills or Corresponding Wills' 'balance of Convenience']

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 Proceeding Concerning a Caveat Over Real Property Under the Real Property Act 1900 (nsw) / Application Concerning Extension or Removal of Caveat AS583181

Legal Issues

  1. 1 ['Whether the plaintiff had a caveatable interest in 26 Mona Road, Darling Point, based on an alleged trust arising from the Will and Memorandum of Wishes.' 'Whether, if a caveatable interest existed, the caveat should nevertheless be removed because the balance of convenience did not favour maintaining it.' "Whether the second defendant's obligation under the Memorandum of Wishes created a present trust interest or only a floating obligation crystallising on her death."]

Ratio Decidendi

The Memorandum of Wishes did not create a present trust over Mona Road in favour of Harry and Patrick. Victoria was free to deal with Mona Road during her lifetime, subject to a floating obligation to leave what remained of Mona Road, any replacement property, or proceeds at her death, and that obligation would crystallise only then. Because Harry had no present trust interest or caveatable interest, caveat AS583181 had to be withdrawn. Even if a caveatable interest had existed, the balance of convenience would not have favoured maintaining the caveat.

Court Disposition

The plaintiff was ordered to withdraw caveat AS583181 and to pay the second defendant's costs of the application.

Orders

  • ['The plaintiff is, within seven days, to withdraw caveat AS583181.' "The plaintiff is to pay the second defendant's costs of this application."]