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Terry v Wilbow [2025] NSWSC 1016 | Case summary | Zoe

NSWNSWSC

Terry v Wilbow

[2025] NSWSC 1016

Supreme Court of NSW|2025-09-04|Before: Hammerschlag CJ in Eq

View on NSW CaselawOr email me a plain-English summary of this case

General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-09-04

Before

Hammerschlag CJ in Eq

Catchwords

EQUITY – TRUSTS – resulting trust – plaintiff and first
defendant each contribute to the acquisition of real property
which is
registered in the plaintiff’s name – Court appoints trustees for

Source

Original judgment source is linked above.

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Catchwords

EQUITY – TRUSTS – resulting trust – plaintiff and firstdefendant each contribute to the acquisition of real propertywhich isregistered in the plaintiff’s name – Court appoints trustees forsale – Property sold – net proceedsare in Court –determination of amounts to which plaintiff and first defendant areentitled

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Terry v Wilbow [2025] NSWSC 1016

Hearing dates: 4 September 2025

Date of orders: 4 September 2025

Decision date: 04 September 2025

Jurisdiction: Equity - Real Property List

Before: Hammerschlag CJ in Eq

Decision: $14,118.80 to be paid out of Court to second defendants.
$432,211.18 to be paid out of Court to plaintiff.
First defendant pay plaintiff’s costs of the proceedings.

Catchwords: EQUITY – TRUSTS – resulting trust – plaintiff and first defendant each contribute to the acquisition of real property which is registered in the plaintiff’s name – Court appoints trustees for sale – Property sold – net proceeds are in Court – determination of amounts to which plaintiff and first defendant are entitled

By the end of July 2023, Wilbow had not given them access to the Property.
This necessitated the Trustees having to approach the Court. They retained solicitors to act for them.
After a number of directions hearings, on 6 October 2023, Peden J (then Real Property List judge) made orders for the joinder of the Trustees to the proceedings and gave them leave to file a motion for a writ of possession for the Property. On 1 December 2023, Peden J made orders for vacant possession of the Property to be given to the Trustees and for the issue of a writ of possession stayed for 28 days. Her Honour ordered that the costs of the application be reserved with a view to the costs being determined prior to distribution of the sale proceeds.
On 15 January 2024, a Senior Deputy Registrar made an order for the Blacktown Sheriff’s office to execute the writ. The selling agent, a solicitor, a locksmith, a representative from an auction house and the sheriff attended the Property on 18 March 2024. They found it neglected and damaged. Windows had been removed and smashed; skirting boards and framing removed; interior and exterior doors removed; walls damaged; decking removed; lighting fixtures stripped from the ceiling; floors damages; carpets and underlays stripped out of bedrooms; panels removed from the pool fence; the granny flat stairs removed and a large amount of trash left on the Property. Subsequently, asbestos was found there and had to be removed.
The Trustees took steps to have the Property repaired and cleaned, and spent $46,912 doing that. Invoices are in evidence.
On about 25 September 2024, Terry received notice from Blacktown Council directing her to take preventative action in relation to asbestos found on the Property. It required her to remove the asbestos by 2 October 2024. Apparently, action was not taken within the time specified in the notice, which resulted in a fine of $15,105 being levied. Terry says she did not make payment of the fine because she did not have the financial capacity to do so. Apparently, someone lent her the money to pay it on the basis that she will repay when these proceedings are finalised.
The Property sold in February this year for $1,522,000. After deductions and a immaterial adjustment, the net balance from the sale was $886,147.67. The deductions included discharge of $577,651.56 owed by Terry to the National Australia Bank. As referred to earlier, the original amount of the mortgage was $547,219.
The principal proceedings were case managed predominantly by Peden J. However, the matter came before Williams J on 4 July 2025. In a well-constructed ex-tempore judgment her Honour made orders that the Trustees be permitted to deduct and retain from the proceeds of sale of the Property their reasonable costs and remuneration in the sum of $64,659.06, their reasonable expenses and disbursements incurred in relation to the sale of $58,427.87 and legal fees of $145,677.6, totalling $268,764.57. No doubt, a significant proportion of this amount is attributable to Wilbow’s bad behaviour.
After payment out of that amount, there now stands in Court $617,382.43.
Before the Court is an application by Terry for an order that her share of the money in Court be paid out to her.
The starting point is that her share of the equity in the Property is 76.69%. However, a number of adjustments need to be made.
First, she is not entitled out of the proceeds to receive the difference between the amount she put in via mortgage at the start and the amount ultimately paid to discharge it on settlement, which is greater by $30,432.56. The increase was caused by defaults in payment of the mortgage.
Second, Wilbow is not entitled to get the benefit that Terry bear a 76.69% share of the costs of repairing the Property which was damaged and neglected by him or the legal costs and other expenses incurred because of his obstructionist behaviour. Concomitantly, he is not entitled to get the benefit of bearing only 23.31%. To allow this, would be to permit him to take advantage of his own wrong.
In my view, the appropriate course to achieve the just, quick and cheap disposition of this matter (which has already gone on too long) is that the burden of paying the amount of $268,764.57 should be shared by Terry and Wilbow equally. This is a robust approach and probably benefits Wilbow, rather than Terry. But the exercise of examining each activity and attempting to work out whether it was necessitated in whole or in part by Wilbow’s conduct and if so, how much it cost would be lengthy, complex and expensive. The amounts in question (including the proceeds in Court) do not warrant it.
Terry originally sought full reimbursement of the asbestos fine, but this was, probably correctly, not pressed.
The Trustees have made an additional claim for remuneration costs and expenses for $14,118.80 to which I find they are entitled and which amount is to come off the net amount in Court and to be borne by Terry and Wilbow in their respective equity proportions.
The result of this approach is as follows.
Starting with the amount originally in Court of $886,147 the equity shares of the parties are Terry - $679,586.13 and Wilbow - $206,560.87. Deducting from that their respective shares of the amount of $14,118.80 which I will shortly authorise to be paid out to the Trustees of $10,827.40 and $3,291 leaves them, respectively, with $668,758.73 and $203,269.87.
After payment of the Trustees further expenses there will be $603,264.03 in Court of which their equity proportions are, respectively, $462,643.18 and $140,620.85. Adjusting for Terry’s mortgage liability requires taking the excess of $30,432 from her total and transferring it to Wilbow. This results in Terry being entitled to payment out of Court of $432,211.18 which I propose to order. These workings are set out in the Schedule.
Wilbow owes his erstwhile solicitors assessed costs of $31,759.75. The solicitors have filed a motion for an order that this amount be paid to them out of Wilbow’s entitlement. The motion will be stood over to a later date. Terry foreshadowed a motion that her costs also be met out of Wilbow’s entitlement.
I make the following orders:
Of the amount standing in Court in this matter, there is immediately to be paid out: