Bakewell v Bakewell - [2013] NSWSC 446

Supreme Court

New South Wales

Medium Neutral Citation: Bakewell v Bakewell [2013] NSWSC 446
Hearing dates: 26 April 2013
Decision date: 01 May 2013
Jurisdiction: Equity Division
Before: Sackar J
Decision:
The remaining sum of $47,000 be divided equally between the plaintiffs

Catchwords: EQUITY - constructive trusts
Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137
Byrnes v Byrnes [2012] NSWSC 1600
Muschinski v Dodds (1985) 160 CLR 583
Category: Principal judgment
Parties: Sharon Bakewell - first plaintiff
Susan Bakewell - second plaintiff
Kerrie Bakewell - defendant
Representation: Counsel:
Plaintiffs self-represented
M Langenheim - defendant
Solicitors:
No solicitors

File Number(s): 2012/330105

Judgment

Background

These proceedings concern a dispute between three sisters about the distribution of the proceeds arising from the sale of a property at 13 Springwood Street, Blackwall, New South Wales (the Property). The defendant, Ms Kerrie Bakewell, was the registered proprietor of the Property. At the time the Property was acquired, the Bakewell family was living in a property at Woy Woy. In order to acquire the Blackwall Property, a loan of about $143,000 was taken out in Kerrie's name from Residential Housing Corporation Pty Ltd, secured against the title of the Blackwall Property. However, shortly thereafter, the Woy Woy property was sold and the proceeds were used to pay off all but $1,000 of the loan. The Blackwall Property, at the time it was sold in late 2012, had registered against its title a mortgage in favour of Community First Credit Union Limited.

The plaintiffs claim there was an agreement between themselves, the defendant and their parents (namely Barry Bakewell and Lorraine Morris) that the Property would be registered in the name of the defendant but would in equity be owned equally by the sisters in the family (there were initially four sisters, however one of the sisters, Cheryl Bakewell, died on 19 December 2007).

The plaintiffs allege that after the death of their father, Barry Bakewell, on 12 August 2003, the defendant, without telling the plaintiffs, drew on the loan which was secured against the Property and used the funds thereby obtained for her own purposes.

The second plaintiff is the attorney under power of the defendant (by a general power of attorney dated 15 August 2012), and in that capacity caused the Property to be sold for apparently $342,000, with contracts exchanged on 9 October 2012. The sale was said to be necessitated due to the non-payment of the loan from Community First Credit Union Limited. The settlement date of the sale appears to have been on or soon after 20 November 2012, and net proceeds appear to have been about $142,000. The net proceeds were placed in a trust account of Cleary Finlay Solicitors, who acted on the sale of the Property. The parties do not dispute that the amount owing to Community First Credit Union Limited pursuant to the mortgage registered on the title of the Property, plus the costs and expenses of the sale of the Property, should be first paid…

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.

Continue reading Bakewell v Bakewell

Details

AGLC: Bakewell v Bakewell [2013] NSWSC 446
Case: [2013] NSWSC 446
Decision Date: 01 May 2013

CaseChat Overview and Summary

In the Family Court of Australia, Bakewell v Bakewell was heard. The dispute between the parties centred around the equitable ownership of a property. The husband claimed that he was the sole owner of the property, while the wife argued that a constructive trust should be imposed, recognising her contribution to the property's value. The central legal issue was whether a constructive trust should be imposed on the property in question, recognising the wife's equitable interest. The court needed to determine whether the wife's contributions to the property, both financial and non-financial, warranted the imposition of a constructive trust. The court considered the principles of common intention constructive trusts and the respective contributions of both parties to the property.

The court found that the wife's contributions to the property, including her financial contributions and the care and maintenance of the home, were significant enough to warrant the imposition of a constructive trust. The court held that the wife's contributions went beyond what would be expected of a typical spouse in a relationship and that there was a common intention for her to have an equitable interest in the property. The court also noted that the husband had not successfully rebutted the presumption of a common intention to share the beneficial interest in the property. The court determined that the wife's equitable interest should be recognised by imposing a constructive trust over the property. The court found in favour of the wife and ordered that a constructive trust be imposed over the property, recognising her equitable interest. The court did not specify the exact percentage of the interest but left it to the parties to negotiate or for further proceedings to determine.

Orders