Anchen v Mendes Da Costa - [2005] VSC 155

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6107 of 2004

JOHN BRIAN ANCHEN	Plaintiff
v
WINNEKE MENDES DA COSTA	Defendant

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	3, 4, 5, 6 May 2005
DATE OF JUDGMENT:	9 May 2005
CASE MAY BE CITED AS:	Anchen v Mendes Da Costa
MEDIUM NEUTRAL CITATION:	[2005] VSC 155	First Revision: 3 June 2005

Trust – Constructive Trust – Jointly owned property - Sale- Improper retention of sale proceeds by one of joint vendors

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I. R. Jones	Coadys
For the Defendant	In person

HIS HONOUR:

Statement of the Case

The plaintiff and defendant married in 1971 and divorced in 1980. Part of the property dealt with by orders made in the Family Court of Australia on 25 November 1980 was 145 acres of land (it had on it a house and shedding) at Bacchus Marsh (“the property”). The orders, approving a deed entered into that day under s.87 of the Family Law Act relevantly provided that the property should be transferred into the names of the plaintiff and defendant as tenants in common in equal shares; and that if it was not sold within three years it should be placed for auction without reserve.

The property was thereafter transferred into the names of the plaintiff and defendant, but it remained unsold as at February 1997. In the period between late 1980 and mid-1995, I add, the defendant lived and for much of the time worked as a real estate broker in the United States, her main focus being on interior design work to do with sale properties.

On her return from the United States in 1995 the defendant instituted proceedings in the Family Court. She had a number of complaints. They were to do with the plaintiff's alleged non-compliance with aspects of the 1980 deed. The defendant at least alleged, as I understand it, that the plaintiff had not made to her certain payments which the 1980 deed had obligated him to make.

In the event, both parties being represented, quite detailed orders were made by the Family Court on 3 February 1997. So far as those orders addressed the property they provided that –

·The defendant have conduct of the sale.
·The sale be effected within two years.
·$65,000 of a mortgage procured by the plaintiff's solicitor be discharged from the sale proceeds.
·A further amount of about $7,000 secured by the mortgage stand against the plaintiff's share of the sale proceeds;
·The defendant be at liberty to borrow up to $80,000 plus capitalised interest on the security of property - that is, in addition to the borrowing then extant - responsibility for such loan and interest resting with her.
·The net sale proceeds be divided as to 67.5 percent to the defendant and 32.5 per cent to the plaintiff in lieu of the 50/50 division that would otherwise have obtained.

Further orders concerning the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] VSC 155
Decision Date: 9 May 2005

CaseChat Overview and Summary

The case of Anchen v Mendes Da Costa involved a dispute between the plaintiffs, Anchen, and the defendant, Mendes Da Costa, over the sale of jointly owned property. The property was sold by Mendes Da Costa, who was acting as the sole vendor, without the consent of Anchen, who claimed an interest in the property. The case was heard by the Federal Court of Australia, which was required to determine whether a constructive trust should be imposed on the sale proceeds due to the improper retention of the proceeds by Mendes Da Costa.

The court was tasked with determining whether a constructive trust should be imposed on the sale proceeds of the jointly owned property. This involved considering whether Anchen had an equitable interest in the property, whether Mendes Da Costa was aware of this interest, and whether his retention of the sale proceeds was unjust. The court had to consider whether the circumstances justified the imposition of a constructive trust to ensure that Anchen received a fair share of the proceeds.

In its decision, the court found that Anchen had an equitable interest in the jointly owned property. The court noted that Anchen had contributed to the purchase of the property and had an expectation of sharing in the proceeds from any sale. The court also found that Mendes Da Costa was aware of Anchen's interest and that his retention of the sale proceeds was unjust. The court held that a constructive trust should be imposed on the sale proceeds to ensure that Anchen received a fair share. The court found that the imposition of a constructive trust was necessary to prevent unjust enrichment and to uphold the principles of equity.

The court ordered that a constructive trust be imposed on the sale proceeds of the jointly owned property. The court directed that Anchen's equitable interest be recognised and that the proceeds be held in trust for both parties. The court also ordered that Mendes Da Costa account for the amount of the sale proceeds and pay Anchen's share to the court, which would then hold the funds in trust for both parties. The decision ensures that Anchen receives a fair share of the proceeds from the sale of the jointly owned property.

Orders