Barker v. Linklater

Case [2007] QSC 125

SUPREME COURT OF QUEENSLAND

CITATION:

Barker v Linklater [2007] QSC 125

PARTIES:

JUNE DOROTHY BARKER
(applicant)
v
ANN-MARGARET LINKLATER as Executrix of the Will of PEARL MARIE LINKLATER Deceased
(respondent)

DOROTHY JUNE BARKER
(plaintiff)
v
ANN-MARGARET LINKLATER
(first defendant)
KATHERINE ELIZABETH HANNA
(second defendant)

FILE NO/S:

BS 6604/04
BS 1002/06

DIVISION:

Trial Division

PROCEEDING:

Civil Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 and 16 November 2006, 27 April 2007

JUDGE:

Lyons J

ORDER:

1. The applicant’s claim pursuant to s 41 of the Succession Act 1981 is dismissed.

2.   The applicant’s application for a declaration of a constructive trust is dismissed.

3.   The applicant’s application for a declaration of a resulting trust is dismissed.

4.   Judgment for the respondent on the counterclaim.

The applicant is ordered to vacate the premises at 103 Main Road, Clontarf forthwith.5.   

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – JURISDICTION – PERSONS IN WHOSE FAVOUR ORDER MAY BE MADE – OTHER PERSONS – where applicant and deceased resided together for 18 years - whether applicant entitled to apply for provision for her proper maintenance and support out of the estate of the deceased - whether de facto relationship existed between applicant and deceased

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUSTS – RESULTING TRUSTS – WHERE INTENTION PRESUMED – where the applicant contributed funds to the property – whether the applicant is entitled to an equity in the property or the estate – whether a resulting trust arises

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – CLASSIFICATION OF TRUSTS IN GENERAL – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – whether there was a common intention for the property to pass to the applicant on the deceased’s death - whether the deceased made representations to the applicant – whether the applicant acted to her detriment in reliance on representations – whether a constructive trust arises

Acts Interpretation Act 1954, s 32DA
Evidence Act 1977, s92
Succession Act 1981, s 5AA, s 40, s 41, s 42
Uniform Civil Procedure Rules 1999, r 166, r 366, r 367

Baumgartner v Baumgartner [1987] HCA 59, distinguished
Cossey v Bach [1992] NZLR 612, considered
Hooper v Winten [2002] NSWSC 1071, followed
Hospital Products Limited v United States Surgical Corp (1984) 156 CLR 41, considered
Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1979] HCA 2, 43 ALJR 249, followed
K v H-J [2006] QSC 168, applied
McKenzie v Topp [2004] VSC 90, distinguished
Muschinski v Dodds (1985) 160 CLR 583, cited
S v B [2004] QCA 449, applied

COUNSEL:

DJ Kelly for the applicant
D Murphy SC for the respondent

SOLICITORS:

Messrs Biggs Fitzgerald Pike for the applicant
McCullough Robertson Lawyers for the respondent

LYONS J: 

Background

  1. June Dorothy Barker (the applicant/applicant hereinafter referred to…

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AGLC
Barker v Linklater [2007] QSC 125
Case
[2007] QSC 125
Decision Date

CaseChat Overview and Summary

Barker and Linklater was a case before the court in which Barker sought provision from Linklater's estate, claiming that she was in a de facto relationship with him, and thus entitled to maintenance under the Succession Act 1981. Barker also sought declarations of constructive and resulting trusts in relation to property held by Linklater. The court was required to determine whether a de facto relationship existed between Barker and Linklater, whether Barker was entitled to maintenance from the estate, and whether any trusts existed over the property.

The court examined whether a de facto relationship existed between Barker and Linklater, focusing on the nature of their relationship and the duration of their cohabitation. The court concluded that while Barker and Linklater had lived together for 18 years, this alone was not sufficient to establish a de facto relationship. The court required evidence of a relationship of a particular nature and quality, which it found was not present in this case. As a result, Barker's claim for maintenance was dismissed. The court also considered whether a constructive or resulting trust existed over the property. The court found that there was no evidence of a common intention for the property to pass to Barker, nor any representations made by Linklater that Barker had acted to her detriment in reliance upon. Similarly, there was insufficient evidence to establish that a resulting trust arose from Barker's contributions to the property.

The court dismissed Barker's claims for maintenance, constructive trust, and resulting trust, and ordered Barker to vacate the premises at 103 Main Road, Clontarf forthwith. Judgment was entered in favour of the respondent on the counterclaim.

Orders

Orders of the court

1. The applicant’s claim pursuant to s 41 of the Succession Act 1981 is dismissed.

2. The applicant’s application for a declaration of a constructive trust is dismissed.

3. The applicant’s application for a declaration of a resulting trust is dismissed.

4. Judgment for the respondent on the counterclaim.

The applicant is ordered to vacate the premises at 103 Main Road, Clontarf forthwith.5.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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