McEvoy v McEvoy (No 2) [2013] NSWSC 1162

McEvoy v McEvoy (No 2) [2013] NSWSC 1162

The plaintiffs' equitable personal obligation did not create a trust or charge in favour of the defendant and did not put their half interest at risk. The appropriate equitable amount was determined pragmatically by starting with half of the $332,000 loan payout, allowing modest notional interest, deducting payments made after July 2003, allowing the defendant $9,500 for rates, taxes and outgoings, and giving the plaintiffs further credit for their capital contribution, maintenance and improvements. The plaintiffs should recover fixed costs because they were forced to establish their rights through two hearings, and those costs should be set off against the amount otherwise payable to the...

Jurisdiction
Australia
Judgment Date
30 August 2013
Procedural Posture
Equity and Trusts Proceedings / Consequential Orders After Principal Judgment; Further Hearing to Quantify Equitable Personal Obligation and Costs
Outcome
Plaintiffs ordered to pay $120,000 to the defendant in satisfaction of their equitable personal obligation; defendant ordered to pay plaintiffs' costs assessed at $20,000; costs set off so net amount payable by plaintiffs to defendant is $100,000.
Legal Topics
['equitable Personal Obligation' 'trust Over Land' 'quantification of Equitable Relief' 'costs' 'gross Fixed Sum Costs Order' 'set Off']
['equity and Trusts' 'civil Procedure'] ['equitable Personal Obligation' 'trust Over Land' 'quantification of Equitable Relief' 'costs' 'gross Fixed Sum Costs Order' 'set Off']

Case Brief

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Procedural Posture

Equity and Trusts Proceedings / Consequential Orders After Principal Judgment; Further Hearing to Quantify Equitable Personal Obligation and Costs

Legal Issues

  1. 1 ["What amount should be ordered in satisfaction of the plaintiffs' equitable personal obligation to the defendant." "Whether non-performance of the plaintiffs' equitable personal obligation affected their half interest in the property." "Whether the defendant should pay the plaintiffs' costs and whether costs should be assessed as a gross fixed sum." 'Whether the costs order should be set off against the amount payable to the defendant.']

Ratio Decidendi

The plaintiffs' equitable personal obligation did not create a trust or charge in favour of the defendant and did not put their half interest at risk. The appropriate equitable amount was determined pragmatically by starting with half of the $332,000 loan payout, allowing modest notional interest, deducting payments made after July 2003, allowing the defendant $9,500 for rates, taxes and outgoings, and giving the plaintiffs further credit for their capital contribution, maintenance and improvements. The plaintiffs should recover fixed costs because they were forced to establish their rights through two hearings, and those costs should be set off against the amount otherwise payable to the...

Court Disposition

Plaintiffs ordered to pay $120,000 to the defendant in satisfaction of their equitable personal obligation; defendant ordered to pay plaintiffs' costs assessed at $20,000; costs set off so net amount payable by plaintiffs to defendant is $100,000.

Orders

  • ['The plaintiffs are to pay $120,000 to the defendant in satisfaction of their equitable personal obligation to her.' "The defendant is to pay the plaintiffs' costs of the proceedings, assessed in the sum of $20,000." 'The costs amount is set off against the amount payable by the plaintiffs, so that the net amount...