Perkins v Carey [2023] NSWSC 210

“That’s my warehouse, or at least half of it is…”
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From its purchase in 2010 P and D were registered as 50-50 TiC co-owners of a warehouse. P was D’s parent.
P had borrowed the money to buy the property. D operated a business from the property until 2012 when it become non-viable: [4]
From 2017 the property was leased with all rental proceeds being paid to D: [7]
P commenced proceedings (not by tutor, but following some earlier litigation about P being able to represent P due to P’s Alzheimer’s) seeking orders that D holds their 50% interest for P, that s66G trustees be appointed, and that D account for 50% of rental proceeds: [8], [16]
D’s father - P’s former spouse - died in 1990. The estate passed unequally, and in large part to D’s siblings (with none to P). D said this unequal distribution was relevant background for P buying him at least part of the property: [25] - [33]
There was very little admissible evidence that D held their 50% share on trust for P: [42]
P’s child, who is D’s sibling, gave evidence in support of P’s application. The evidence suggested P wanted the property wanted the property sold from around 2012 but that was not conclusive in relation to the parties’ legal rights: [44] - [53]
D said that P had “always” said they would bequeath the property to D in their will: [54]
Over the years D brought various investment opportunities to P, which they sometimes invested in, including (unsuccessfully) a Kenyan gold mine: [61]
Various letters prepared by P were tendered. Ultimately these did not assist due to uncertainty about P’s mental capacity at the time they were prepared: [86]
P was unable to demonstrate D held their 50% share on trust for P: [87]
The Court considered, on the balance of probabilities, that it was more likely that P intended to assist D by the purchase of the property making him 50% owner: [88]
While other possibilities might arise, the Court considered that: “(t)here is simply a dearth of evidence and speculation does not assist”: [92]
D did not press their initial claim that they were in fact the 100% owner: [93] - [96]
D asserted that P gifted them the rental income from 2017 to 2022. This was not accepted. P was in a difficult financial position, suffering from Alzheimer’s, and a number of requests were made for P’s share of the rent. This stood in the way of the Court finding the rent was gifted to D: [108]
It was ordered that D pay to P 50% of the rent D had collected: [111]
P sought appointment of s66G trustees. D resisted on irrelevant bases. The Court noted hardship or unfairness was not a barrier to making of s66G orders: [117]
The Court appointed the s66G trustees.
Regarding costs - s66G costs are normally paid out of the trust corpus. However, noting P succeeded in their rental income claim and failed in their resulting trust claim, the Court ordered that only 50% of their costs be paid from the proceeds of the property’s sale: [126]

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