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Australian Building & Technical Solutions Pty Ltd v Boumelhem

Australian Building & Technical Solutions Pty Ltd v Boumelhem

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Case Copied 29 May 2009 45 min read

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CITATION: Australian Building & Technical Solutions Pty Limited v Boumelhem; Boral Australia Limited v Boumelhem; Boumelhem v Jones & Ors [2009] NSWSC 460

HEARING DATE(S): 7, 8 and 14 May 2009

JUDGMENT DATE :
29 May 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J

DECISION: Resulting trust and equitable lien declared in favour of plaintiffs in 4401/08 ranking in priority to equitable charges of plaintiffs in 1648/08 and 4017/08

CATCHWORDS: EQUITY – trusts and trustees – resulting trusts – plaintiffs provided part of purchase price for property in son’s name – whether presumption of advancement rebutted – whether presumption of resulting trust rebutted – held that presumption of advancement rebutted – presumption of resulting trust not rebutted – property held on resulting trust for plaintiffs to the extent of their contribution to the purchase price. - EQUITY – trusts and trustees – constructive trusts – whether plaintiffs entitled to relief applying Baumgartner v Baumgartner: whether parties engaged in joint venture - whether joint venture failed without attributable blame - whether unconscionable to deny entitlement of parents – alternatively, whether plaintiffs entitled to relief by reason of proprietary estoppel: whether plaintiffs, in making contributions to property, acted in detrimental reliance upon assumptions induced by legal owner of property – held entitled to relief on both bases - consideration of appropriate relief – whether other relief available – whether constructive trust would grant plaintiffs unfair priority over third party creditors – held appropriate relief provided by declaration of resulting trust in respect of contribution to purchase price and equitable lien securing additional contributions.

LEGISLATION CITED: Defence Service Homes Act 1918 (Cth)
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Ampolex Limited v Perpetual Trustee Company (Canberra) Limited (1995) 37 NSWLR 405
Austin v Keele (1987) 10 NSWLR 283
Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566
Baumgartner v Baumgartner (1987) 164 CLR 137
Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060
Bridge Wholesale Acceptance Corporation (Australia) Limited v Burnard (1992) 27 NSWLR 415
Buffrey v Buffrey & Anor [2006] NSWSC 1349
Calverley v Green (1984) 155 CLR 242
Cadorange Pty Limited (In Liq) v Tanga Holdings Pty Limited (1990) 20 NSWLR 26
Cetojevic v Cetojevic [2006] NSWSC 432
Cetojevic v Cetojevic [2007] NSWCA 33
Charles Marshall Pty Limited v Grimsley (1956) 95 CLR 353
Damberg v Damberg [2001] NSWCA 87
Disctronics Ltd v Edmonds [2002] VSC 454
Draper v Official Trustee in Bankruptcy (2006) 236 ALR 499
Drever v Drever [1936] ALR 446
Flack v Chairperson, National Crime Authority (1997) 80 FCR 137
Friend v Brooker & Anor [2008] HCATrans 344
Friend v Brooker [2009] HCA 21
Gazzola v Gazzola (1990) 92 ALR 45
Gissing v Gissing [1971] AC 886
Giumelli v Giumelli (1999) 196 CLR 101
Grant v Edwards [1986] Ch 638
Green v Green (1989) 17 NSWLR 343
Grey v Grey (1677) 2 Swans 594 at 598; 36 ER 742
In Re Kerrigan; ex p Jones (1946) 47 SR (NSW)…

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: [2009] NSWSC 460
Decision Date: 29 May 2009

CaseChat Overview and Summary

The case of Australian Building & Technical Solutions Pty Ltd v Boumelhem involved the plaintiffs, Australian Building & Technical Solutions Pty Ltd, who sought to establish their equitable interest in a property purchased by their son in his name. The dispute was heard in the Supreme Court of New South Wales. The plaintiffs argued that they had contributed to the purchase price of the property and, as such, were entitled to a corresponding equitable interest. The legal issues before the court were whether the presumption of advancement could be rebutted and whether a presumption of resulting trust could also be rebutted.

The court addressed the presumption of advancement, which suggests that payments made by a parent to their child are presumed to be gifts. The plaintiffs argued that this presumption was rebutted by evidence that the contributions were intended to be loans. The court found that there was sufficient evidence to rebut the presumption of advancement. However, the court also examined the presumption of resulting trust, which arises when a person contributes to the purchase price of a property that is held in the name of another. The court determined that this presumption could not be rebutted by the evidence presented, leading to the conclusion that the property was held on a resulting trust for the plaintiffs to the extent of their contributions.

The court then considered the appropriate form of relief for the plaintiffs. It held that the plaintiffs were entitled to relief on the basis of both constructive trust and proprietary estoppel. The court found that the plaintiffs and the son had engaged in a joint venture, which had failed without any attributable blame to the plaintiffs. It was unconscionable for the son to deny the plaintiffs' entitlement to a share in the property. Additionally, the court found that the plaintiffs had acted in detrimental reliance upon assumptions induced by the legal owner of the property. The appropriate relief was determined to be a declaration of the resulting trust in respect of the plaintiffs' contribution to the purchase price and an equitable lien to secure any additional contributions they had made. This equitable lien would provide priority over third party creditors, ensuring that the plaintiffs' contributions were adequately protected.

Orders