Larry Charles Tomkins v Josephine Tomkins [2005] NSWSC 291

Larry Charles Tomkins v Josephine Tomkins [2005] NSWSC 291

The plaintiff is entitled to appointment of trustees for sale and a declaration of trust over the first lots where evidence strongly supports an implied trust in his favour and there is no resistance from the defendant; however, relief in relation to the possessory title property (second lot) should proceed through regular pleadings and hearing due to factual complexity regarding acquisition and ownership.

Jurisdiction
Australia
Judgment Date
24 March 2005
Procedural Posture
Appointment of Trustees for Sale / Interlocutory Determination and Directions
Outcome
Trustees for sale appointed for the first lots; declaration of trust in favour of plaintiff over first lots; further directions ordered regarding the second lot; costs to plaintiff for proceedings to date.
Legal Topics
['appointment of Trustees for Sale' 'possessory Title' 'trusts Over Property']
['property Law' 'equity'] ['appointment of Trustees for Sale' 'possessory Title' 'trusts Over Property']

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Procedural Posture

Appointment of Trustees for Sale / Interlocutory Determination and Directions

Legal Issues

  1. 1 ['Whether trustees should be appointed for the sale of jointly owned property' 'Whether the proceeds of sale should be declared held on trust for the plaintiff' 'Whether possessory title property should be the subject of similar orders without a full hearing']

Ratio Decidendi

The plaintiff is entitled to appointment of trustees for sale and a declaration of trust over the first lots where evidence strongly supports an implied trust in his favour and there is no resistance from the defendant; however, relief in relation to the possessory title property (second lot) should proceed through regular pleadings and hearing due to factual complexity regarding acquisition and ownership.

Court Disposition

Trustees for sale appointed for the first lots; declaration of trust in favour of plaintiff over first lots; further directions ordered regarding the second lot; costs to plaintiff for proceedings to date.

Orders

  • ['Henry Milton Bailey and Peter Noel Dunlop appointed trustees for sale of lots 1 and 2 Dulwich Place, Camberwell (SEC.8-DP758214, folio Auto Consol 15520-128).' 'Declaration that the proceeds from sale of the first lots be vested in trustees upon trust for the plaintiff.' "Respondent to pay plaintiff's costs of...