Frederick George Rix v Lisa Jane Mahony

FREDERICK GEORGE RIX
v
LISA JANE MAHONY & ANOR
[2013] HCASL 47
S327/2012

The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of New South Wales (Campbell, Meagher and Barrett JJA) dismissing an appeal against a decision of the Supreme Court of New South Wales (Bergin CJ in Eq).
On 28 July 2011, a property in Gardeners Road, Rosebery was sold pursuant to an order made under s 66G of the Conveyancing Act 1919 (NSW). The property was originally purchased in 1975 by the applicant and his wife as joint tenants. In 1993, the applicant and his wife agreed to transfer their interest in the property to the first respondent and her husband, who, as a result of the transfer, became the registered proprietors holding respective legal interests of a three-quarter share and a one-quarter share. There was no consideration for the transfer.
The applicant commenced proceedings in the Supreme Court of New South Wales Equity Division claiming an entitlement to 50 per cent of the gross proceeds of sale of the property, on grounds that the first respondent held a half share in the property on trust for him and his wife as joint tenants. By the time of the sale the wife had died and left the entirety of her estate to her son and the first respondent. It was not in dispute that the first respondent held a one-quarter share in the property on trust for the applicant and a one-quarter share for herself absolutely and that the second respondent held a one-quarter share. On 2 November 2011, the Supreme Court held that at the time of the agreement to transfer in 1993 the applicant and his wife intended to hold their interests in the property separately and not jointly. Accordingly, there was no resulting trust in favour of the applicant for a half share in the property. His entitlement was limited to 25 per cent of the gross proceeds of the sale.
On 17 October 2012, the Court of Appeal unanimously dismissed an appeal by the applicant from the decision below and held that the primary judge was correct to find that at the time of the 1993 transfer the applicant and his wife intended to hold their interests in the property separately and not jointly.
As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.
There is no reason to doubt the correctness of the decision of the Court of Appeal. An appeal to this Court would have insufficient prospects of success to warrant a grant of special leave to appeal.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
10 April 2013 S.M. Crennan

CaseChat Overview and Summary

The applicant, Frederick George Rix, sought special leave to appeal against the dismissal of his appeal by the Court of Appeal of the Supreme Court of New South Wales. The appeal concerned the interpretation of a property transfer agreement and the subsequent sale of a property in Rosebery. The applicant had originally purchased the property jointly with his wife in 1975 and later transferred their interest to the first respondent and her husband in 1993 without consideration. The applicant argued that the transfer was made on trust for him and his wife as joint tenants, and he sought 50% of the gross proceeds of sale of the property. The Court of Appeal dismissed the applicant's appeal, holding that the primary judge was correct in finding that the applicant and his wife intended to hold their interests in the property separately, not jointly, at the time of the 1993 transfer.

The central legal issue in this case was whether the applicant and his wife intended to hold their interests in the property jointly or separately when they transferred their interest to the first respondent and her husband in 1993. This determination was crucial in deciding the applicant's entitlement to a share of the gross proceeds of the sale of the property. The Court of Appeal upheld the primary judge's finding that the intention was to hold the interests separately, thereby rejecting the applicant's claim for 50% of the gross proceeds of sale. The applicant's argument that the transfer was made on trust for him and his wife as joint tenants was not upheld. The High Court found that the Court of Appeal's decision was correct, and the appeal lacked sufficient prospects of success to warrant a grant of special leave.

The High Court considered that there was no doubt about the correctness of the Court of Appeal's decision. The Court of Appeal's findings were well-supported by the evidence and the applicable legal principles. The Court concluded that granting special leave to appeal would not be justified, as the applicant's appeal was unlikely to succeed. The High Court thus dismissed the application for special leave to appeal and directed the Registrar to draw up, sign, and seal the order accordingly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established