BREEN v PLUMB [1992] NSWCA 29

BREEN v PLUMB [1992] NSWCA 29

The trial judge's application of the Muschinski principle to adjust equities between the parties was appropriate, awarding the defendants an equitable charge for improvements, but subject to deduction for the present value of the unpaid mortgage; damages for wrongful exclusion and use and occupation were correctly awarded, but the occupation fee must account for the lower rental value of the portion occupied by the defendants.

Parties
Plaintiff: Mr Plumb; First Defendant: Mrs Breen; Second Defendant: Mr Fuller
Jurisdiction
Australia
Judgment Date
03 March 1992
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed in part; orders and declarations varied.
Legal Topics
Family Arrangements, Constructive Trust, Equitable Charge, Occupation Fee, Wrongful Exclusion, Assessment of Damages
Equity Property Law Remedies Family Arrangements Constructive Trust Equitable Charge Occupation Fee Wrongful Exclusion +1 more

Case Brief

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Parties

Mr Plumb

Plaintiff

Mrs Breen

First Defendant

Mr Fuller

Second Defendant

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the defendants were entitled to an equitable charge over property for their improvements under a family arrangement
  2. 2 Whether damages for wrongful exclusion of the plaintiff by the defendants were correctly assessed
  3. 3 Whether occupation fee for the defendants' use of part of the property was correctly calculated

Ratio Decidendi

The trial judge's application of the Muschinski principle to adjust equities between the parties was appropriate, awarding the defendants an equitable charge for improvements, but subject to deduction for the present value of the unpaid mortgage; damages for wrongful exclusion and use and occupation were correctly awarded, but the occupation fee must account for the lower rental value of the portion occupied by the defendants.

Court Disposition

Appeal allowed in part; orders and declarations varied.

Orders

  • Declare plaintiff entitled since 12 January 1986 to possession of the property known as 30 Vista Avenue, Batemans Bay, NSW (Certificate of Title Volume 10307 Folio 14).
  • Plaintiff to have leave to issue a writ of possession in respect of the property.