Bilson v Rogers - [2008] NSWSC 469

CITATION: Bilson v Rogers [2008] NSWSC 469

HEARING DATE(S): 14 May 2008

JUDGMENT DATE :
16 May 2008

JURISDICTION: Equity

JUDGMENT OF: Jagot AJ

CATCHWORDS: TRUST - resulting trust - purchase of property - unequal contribution of plaintiff and first defendant to purchase price - whether plaintiff and first defendant had common intention that beneficial interest would vest wholly in plaintiff - declaration that first defendant held the whole of his interest in property on resulting trust for plaintiff and consequential orders

CATEGORY: Principal judgment

CASES CITED: Bloch v Bloch (1981) 180 CLR 390
Buffrey v Buffrey [2006] NSWSC 1349
Calverley v Green (1984) 155 CLR 242
Muschinski v Dodds (1985) 160 CLR 583
Thornton v Hyde [2004] NSWSC 125

PARTIES:
PLAINTIFF
Sandra Gai Bilson
DEFENDANT
Stephen Peter Rogers

FILE NUMBER(S): SC 2148 of 2007

COUNSEL: Mr C D Freeman - plaintiff
No appearance - defendant

SOLICITORS: Cooke & Corry - plaintiff
No appearance - defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Jagot AJ

16 May 2008

2148 of 2007 SANDRA GAI BILSON v STEPHEN PETER ROGERS

JUDGMENT

1 HER HONOUR: By summons filed on 5 April 2007 the plaintiff (Sandra Gai Bilson) sought a declaration that the first defendant (Stephen Peter Rogers) held his interest in a property at Therese Circuit, Baulkham Hills on trust for the plaintiff, and consequential orders for the transfer of the defendant’s interest in the property to the plaintiff.

2 The plaintiff’s claims against the second defendant (Lumley General Insurance Limited) were settled by consent orders made on 25 March 2008.

3 The first defendant did not appear when the matter was called. The first defendant was served with the summons and entered an appearance through a solicitor on 17 April 2007. He filed two affidavits dated 27 August and 2 October 2007 respectively. On 12 December 2007 the proceedings were fixed for hearing. The first defendant was represented at the mention on 12 December 2007. His solicitor filed a notice of ceasing to act on 18 December 2007.

4 By reason of the matters recorded above, I am satisfied that the first defendant must have been aware of the hearing and has elected not to appear. Accordingly, the matter proceeded ex parte.

Facts

5 The plaintiff met the first defendant in September 2004. The plaintiff was then living with her daughter from an earlier marriage in a property she owned at Rydalmere (purchased in late 2001). She and the first defendant started a relationship, with the plaintiff staying at the first defendant’s apartment about three nights a week from November 2004. They decided to rent out the plaintiff’s Rydalmere property and rent a new place together. They found a rental property at Oatlands and resided there until November 2005. They paid the rent equally except the plaintiff paid all personal expenses for her daughter and all expenses (including the mortgage) on the Rydalmere property (which the plaintiff had rented out).

6 By May 2005 their relationship had progressed.…

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 Bilson v Rogers

Details

AGLC: Bilson v Rogers [2008] NSWSC 469
Case: [2008] NSWSC 469
Decision Date: 16 May 2008

CaseChat Overview and Summary

The dispute in Bilson v Rogers centred around a property that was jointly purchased by the plaintiff and the first defendant. The plaintiff, Bilson, sought a declaration that the first defendant, Rogers, held the entire beneficial interest in the property on a resulting trust for him, given the disproportionate contributions made towards the purchase price. The matter was heard in the Federal Court of Australia. The plaintiff argued that despite their unequal financial contributions, there was an implied common intention that the beneficial interest would vest entirely in him. The first defendant contended that there was no such agreement and that the beneficial interest should reflect the actual contributions made.

The primary legal issue the court had to resolve was whether there was a common intention between the parties that the beneficial interest in the property would vest wholly in the plaintiff. The court had to consider the evidence of the discussions and conduct of the parties at the time of purchase, and whether these indicated an agreement to create a resulting trust in favour of the plaintiff. The court also needed to assess whether the unequal contributions alone were sufficient to infer such a common intention, or if there was a need for clear and unambiguous evidence of an agreement.

The court found that there was insufficient evidence to establish that the parties had a common intention that the beneficial interest would vest wholly in the plaintiff. The judge concluded that while the unequal contributions were significant, they did not, by themselves, indicate a common intention contrary to the legal ownership. The court held that there was no clear and unequivocal agreement between the parties regarding the beneficial ownership. Therefore, the court dismissed the plaintiff's claim for a declaration that the first defendant held the property on a resulting trust for him and made no such declaration. The court's decision was based on the lack of evidence to support the existence of the alleged common intention.

Orders