Bailey v Bailey [2010] NSWSC 948

Bailey v Bailey [2010] NSWSC 948

The Court found that the Deed of Appointment was executed in the form evidenced by the available draft with handwritten amendments, and, read with the Family Court Consent Orders, established that Iris Bailey held her half share as tenant in common in the Cruickshank Street Property on trust for Jason, Mark and Joshua Bailey. The mortgage payments Iris made between 1988 and 1994 were intended and received as gifts to Kim and the children, not loans, and therefore did not give rise to reimbursement, indemnity, equitable contribution, restitutionary relief, a constructive trust or an equitable lien. Any loan claim would in any event have been statute-barred. Accordingly, the s 66G relief...

Jurisdiction
Australia
Judgment Date
30 September 2010
Procedural Posture
Equity Proceeding Concerning a Trust Over Real Property and Relief Under Conveyancing Act 1919 (nsw), S 66 G / Principal Judgment After Hearing
Outcome
Plaintiff's claim for relief under Conveyancing Act 1919 (NSW), s 66G was declined and her alternative claims for reimbursement or other relief were dismissed; the Court found that Iris Bailey holds her half share in the Cruickshank Street Property on trust for Jason, Mark and Joshua Bailey.
Legal Topics
['existence and Terms of Trust' 'lost Trust Instrument and Secondary Evidence' 'trustee Indemnity and Reimbursement' 'gift or Loan' 'equitable Contribution' 'limitation of Actions' 'appointment of Trustees for Sale']
['equity' 'trusts' 'property Law'] ['existence and Terms of Trust' 'lost Trust Instrument and Secondary Evidence' 'trustee Indemnity and Reimbursement' 'gift or Loan' 'equitable Contribution' 'limitation of Actions' 'appointment of Trustees for Sale']

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 Trust Over Real Property and Relief Under Conveyancing Act 1919 (nsw), S 66 G / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Iris Bailey held her half share as tenant in common in the Cruickshank Street Property on trust for Jason, Mark and Joshua Bailey.' 'Whether the alleged Deed of Appointment of Trustee dated 23 December 1986 was executed and what its contents were.' 'Whether Iris Bailey should be ordered to transfer her rights, title and interest in the property to the second to fourth defendants.' 'Whether mortgage payments made by Iris Bailey to Greater Newcastle Permanent were paid as trustee and gave rise to a right of reimbursement or indemnity.' 'Whether the payments made by Iris Bailey in discharge of the mortgage were gifts or loans.' 'Whether any claim to recover the payments was statute-barred under the Limitation Act 1969 (NSW).' 'Whether Iris Bailey had any restitutionary, constructive trust, equitable lien or equitable contribution claim against Kim Bailey or the children.']

Ratio Decidendi

The Court found that the Deed of Appointment was executed in the form evidenced by the available draft with handwritten amendments, and, read with the Family Court Consent Orders, established that Iris Bailey held her half share as tenant in common in the Cruickshank Street Property on trust for Jason, Mark and Joshua Bailey. The mortgage payments Iris made between 1988 and 1994 were intended and received as gifts to Kim and the children, not loans, and therefore did not give rise to reimbursement, indemnity, equitable contribution, restitutionary relief, a constructive trust or an equitable lien. Any loan claim would in any event have been statute-barred. Accordingly, the s 66G relief...

Court Disposition

Plaintiff's claim for relief under Conveyancing Act 1919 (NSW), s 66G was declined and her alternative claims for reimbursement or other relief were dismissed; the Court found that Iris Bailey holds her half share in the Cruickshank Street Property on trust for Jason, Mark and Joshua Bailey.

Orders

  • ['Decline to grant the plaintiff relief under Conveyancing Act, s 66G, pending Jason, Mark and Joshua Bailey determining what course they wish to take in relation to the half share of the Property that Iris holds for them as trustee.' 'Dismiss the alternative way that the plaintiff puts her claim.' 'Direct the...