Hunter Water Corporation v Landmarque Holdings Pty Ltd [2021] NSWSC 1233

Procedural Posture

Equity Real Property List Proceeding Concerning Resulting Trust, Trustee Indemnity and Sale of Land / Principal Judgment After Hearing on 28 September 2021

Legal Issues

1. 1 ['Whether Hunter Water Corporation held the Land on resulting trust for Landmarque Holdings Pty Ltd.' 'Whether Hunter Water Corporation was entitled to indemnity, reimbursement or exoneration from the trust assets for costs and expenses incurred in holding the Land.' 'Whether Hunter Water Corporation was entitled to the Resumption Money and how it should be applied.' "How the Land should be sold to enforce Hunter Water Corporation's equitable lien and satisfy its indemnity entitlement." 'Whether the fourth defendant should withdraw its caveat over the Land.']

Ratio Decidendi

Because Landmarque provided the entirety of the purchase price and incidental costs for Hunter Water's purchase of the Land and nothing rebutted the presumption of resulting trust, Hunter Water held the Land on resulting trust for Landmarque. As resulting trustee, Hunter Water was entitled to indemnity from the trust assets, including the Land and the right to Resumption Money, for rates, land tax, legal costs, sale costs and related imposts. Rather than appointing a receiver, the Court permitted Hunter Water to sell the Land under an undertaking to conduct an open, arm's-length sale and apply proceeds according to its indemnity entitlement, with the balance to Landmarque.

Court Disposition

Declarations and consequential orders made.

Orders

• ['Declared that Hunter Water Corporation, as trustee, holds on resulting trust for Landmarque Holdings Pty Ltd, as beneficiary, the land comprising Lot 21 in DP XXXXXXX in Rothbury, Hunter Valley, New South Wales.' 'Declared that Hunter Water Corporation is entitled to payment of funds from the Consolidated Fund...