Sullivan v. Sullivan (No.2) [2007] NSWCA 11

Sullivan v. Sullivan (No.2) [2007] NSWCA 11

Relief should be by constructive trust, rather than injunctions only, because it was appropriate to bind the third respondent in priority to its discretionary trust obligations and to give the appellant a quantifiable interest in the land, preserving a remedy if there were mortgage default and sale. The appellant's substantial success warranted costs at first instance and on appeal.

Jurisdiction
Australia
Judgment Date
15 February 2007
Procedural Posture
Appeal / Written Submissions in Chambers Concerning Orders Following Principal Judgment
Outcome
Appeal allowed; orders of Campbell J set aside; constructive trust, restraint on interference with quiet enjoyment, costs orders, and liberty to apply ordered.
Legal Topics
['proprietary Estoppel' 'constructive Trust' 'injunction' 'discretionary Trust' 'costs' 'quiet Enjoyment' 'mortgage Default']
['equity' 'property Law' 'trusts' 'costs'] ['proprietary Estoppel' 'constructive Trust' 'injunction' 'discretionary Trust' 'costs' 'quiet Enjoyment' 'mortgage Default']

Case Brief

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Procedural Posture

Appeal / Written Submissions in Chambers Concerning Orders Following Principal Judgment

Legal Issues

  1. 1 ['Whether relief following the finding of proprietary estoppel should be by way of constructive trust or by way of injunction.' 'What order for costs should be made.']

Ratio Decidendi

Relief should be by constructive trust, rather than injunctions only, because it was appropriate to bind the third respondent in priority to its discretionary trust obligations and to give the appellant a quantifiable interest in the land, preserving a remedy if there were mortgage default and sale. The appellant's substantial success warranted costs at first instance and on appeal.

Court Disposition

Appeal allowed; orders of Campbell J set aside; constructive trust, restraint on interference with quiet enjoyment, costs orders, and liberty to apply ordered.

Orders

  • ['The appeal be allowed.' 'That the orders of Justice Campbell made on 7 February 2005 in Supreme Court Proceedings 2476/04 be set aside, and in lieu thereof: (a) An order that the Third Respondent hold the property situated at and known as 24 Greenvale Road, Green Point in the State of New South Wales (being the...