Baker v David [2015] NSWCA 235

A property was funded by one of the co-owners only, in part with cash and in part by a mortgage, the repayments of which were agreed to be the responsibility of this one co-owner. An agreement was entered into which acknowledged that the property was nevertheless jointly held and both co-owners were registered as joint tenants. The funding owner wanted the property sold because he did not wish to continue paying the mortgage, and the co-owner in possession resisted claiming the benefit of this agreement entitling him to exclusive possession until his death. At the trial, the court granted the section 66G order on the basis of a construction that the agreement ceased when the research work ceased and on the basis that no consideration was provided.

The Court of Appeal found this decision ignored the terms of the agreement as to what should happen in the event of either of the co-owners’ deaths and that consideration was provided by the co-owner in possession (agreeing that the agreement replaced a former agreement between the parties in relation to another property and to the extent of any inconsistency the former would prevail). However the court acknowledged that this error came about because the agreement was not clearly identified by the co-owner in possession. The Court of Appeal set aside the orders of the lower court and ordered a re-trial.

Click here to read the full judgment.

Scroll to Top