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Brown v Faggoter

Brown v Faggoter

Case [1998] NSWCA 44 4 November 1998

Civil Procedure

Negligence & Tort

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BROWN v FAGGOTER and ORS [1998] NSWCA 44
Decision date: 04 November 1998

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AGLC: Brown v Faggoter [1998] NSWCA 44
Case: [1998] NSWCA 44
Decision Date: 04 November 1998

CaseChat Overview and Summary

In *Brown v Faggoter and Ors* [1998] NSWCA 44, the New South Wales Court of Appeal considered a dispute concerning the ownership and entitlement to a property. The appellant, Brown, sought to establish a beneficial interest in the property, which was registered in the names of the respondents, Faggoter and Ors. The core of the dispute revolved around whether the appellant had provided financial contributions towards the purchase of the property and whether these contributions, if proven, were intended to create a trust in his favour.

The primary legal issues before the Court of Appeal were whether the primary judge erred in finding that the appellant had failed to establish a resulting or constructive trust over the property. Specifically, the court had to determine if the appellant's alleged financial contributions were sufficient to give rise to an equitable interest, and if so, whether the circumstances surrounding those contributions indicated an intention to create a trust. The court also considered the application of principles relating to the presumption of advancement and the burden of proof in establishing equitable interests.

The Court of Appeal, in its reasoning, affirmed the principles governing the establishment of resulting and constructive trusts. It was held that for a resulting trust to arise, there must be evidence of a direct contribution to the purchase price of the property, and that such contribution was made with the intention of acquiring a beneficial interest. The court found that the appellant had not adduced sufficient evidence to satisfy this threshold, particularly in light of the presumption of advancement which typically operates in favour of a wife or child. Furthermore, the court examined the elements required for a constructive trust, which typically involve unconscionable conduct or a common intention to share beneficial ownership, and concluded that these elements were not made out on the facts presented. The primary judge's findings were upheld.

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Citations

Brown v Faggoter [1998] NSWCA 44

Most Recent Citation

Khan v Workers' Compensation Regulator [2020] QIRC 95

Cases Citing This Decision

32

Plummer v Montgomery [2023] NSWSC 175
Citation 1

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, t…
Shymko v Lach [2022] NSWSC 1096
Citation 2 (Para 796)

…In Brown v Faggoter [1998] NSWCA 44 Fitzgerald JA explained at 7:…
Chisak v Presot [2021] NSWSC 597
Citation 3

…Bowditch v NSW Trustee & Guardian [2012] NSWSC 275 Bracher v Jones [2020] NSWSC 1024 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Faggoter [1998] NSWCA 44 Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Churton v Christian (1988) 13 NSWLR 241 Coshot…
Khan v Workers' Compensation Regulator [2020] QIRC 95
Citation 4 (Para 106)

…nable in all the circumstances of the case'. In reliance upon the decision of the trial judge (Walker J) in Doyle v Manly Pacific International Hotel [1998] NSWCA 44 at [106], counsel for the Appellant seeks if not to subsume 'reasonableness' in 'industrial fairness' to elevate 'industrial fairness' a dominant con…
Comninos v Buckley [2019] NSWSC 968
Citation 5

…These principles have been applied, at first instance, for many years. However, in Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal in which Fitzgerald AJA delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable…
Lodin v Lodin [2017] NSWCA 327
Citation 6 (Para 9)

…It is true that in Brown v Faggoter [1998] NSWCA 44 Fitzgerald AJA with whom Sheller JA and Sheppard AJA agreed, said that:…
Yee v Yee [2017] NSWCA 305
Citation 7

…HCA 9 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Brown v Faggoter [1998] NSWCA 44 Brown v Tasmania [2017] HCA 43 Burke v Burke [2015] NSWCA 195; (2015) 13 ASTLR 313 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Churton v Christian (1988) 13 NSWLR 241;…
Hancock, Shaun v Parker; Hancock, Lisa v Parker [2017] NSWSC 759
Citation 8 (Para 63)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, t…
Austin v NSW Trustee and Guardian [2016] NSWSC 1675
Citation 9 (Para 141)

…These principles have been applied, at first instance, for many years. However, in Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal in which Fitzgerald AJA delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable…
Page v Page [2016] NSWSC 1218
Citation 10 (Para 175)

…These principles have been applied, at first instance, for many years. However, in Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal in which Fitzgerald AJA delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable…
Yee v Yee [2016] NSWSC 360
Citation 11 (Para 197)

…“factors warranting” has been in competition for some years with the Court of Appeal’s statements in Brown v Faggoter Brown v Faggoter [1998] NSWCA 44 (“ Brown v Faggoter ”) which offer another test of “factors warranting”: that an application might be warranted if the applicant has reasonable prospects of succes…
Sadiq v NSW Trustee & Guardian [2015] NSWSC 716
Citation 12

…Perpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Brown v Faggoter [1998] NSWCA 44 Butcher v Craig [2009] WASC 164 Chandler v Coulson [2015] NSWSC 172 Chapple v Wilcox [2014] NSWCA 392 Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241 Cicek v Estate of late Solomon…
Fulton v Fulton [2014] NSWSC 619
Citation 13

…ne South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Bristol and West Building Society v Mothew [1998] Ch 1 Brown v Faggoter [1998] NSWCA 44 Butcher v Craig [2009] WASC 164 Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 Byrne v Macquarie Group Services Austr…
Suzanne Hart v Joan Noelene Van Son [2014] NSWSC 585
Citation 14 (Para 1)

…propose to follow the approach taken by McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 as opposed to the analysis suggested in Brown v Faggoter [1998] NSWCA 44. Accordingly, the question which I will now answer is whether there are factors which, when added to the facts which render Ms Hart an eligible perso…
Justyn Marcus Ng v Neville Mark Morgan; Selena Natanie Ng v Morgan; Commonwealth Bank of Australia v Neville Mark Morgan in his capacity as Administrator of the estate of the late Dell Smith [2014] NSWSC 536
Citation 15

…60 Cases Cited: Amaca Pty Ltd v Novek (2009) 9 DDCR 199 Ball v Newey (1988) 13 NSWLR 489 Bearns v Bearns-Hayes [1997] NSWSC BC970286 Brown v Faggoter [1998] NSWCA 44 Churton v Christian (1988) 13 NSWLR 241 Diver v Neal [2009] NSWCA 115 Dridi v Fillmore [2001] NSWSC 319 Drury v Smith [2012] NSWSC 1067 Evans v Levy…
Doshen v Pedisich [2013] NSWSC 1507
Citation 16 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test…
Hamilton v Moir [2013] NSWSC 1200
Citation 17 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test…
Russell v NSW Trustee and Guardian [2013] NSWSC 370
Citation 18 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test…
Nowak v Beska [2013] NSWSC 166
Citation 19 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test…
Morgan v Bohm [2013] NSWSC 145
Citation 20 (Para 1)

…first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter [1998] NSWCA 44, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that…
Aliza Alice Sassoon v Adrian Rose [2012] NSWSC 1554
Citation 21 (Para 1)

…first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter [1998] NSWCA 44, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that…
Kallidis v Kallidis [2012] NSWSC 1485
Citation 22

…erpetual Trustee Co Ltd [1938] AC 463 Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Broad, Re, Smith v Draeger [1901] 2 Ch 86 Brown v Faggoter [1998] NSWCA 44 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Cairns v Cairns [2006] NSWSC 364 Cetojevic v Cetojevic [2006] NSWSC 431 Charles v…
Lumsdon v Gargano [2012] NSWSC 1169
Citation 23 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test…
Drury v Smith [2012] NSWSC 1067
Citation 24 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test…
Sammut v Kleemann [2012] NSWSC 1030
Citation 25 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test…
Marando v Rizzo [2012] NSWSC 739
Citation 26 (Para 3)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test…
Sydney & Sydney [2012] NSWSC 350
Citation 27 (Para 1)

…first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter [1998] NSWCA 44, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that…
Curran v Harvey [2012] NSWSC 276
Citation 28 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the view taken, at 13, that an application might be warranted "if the application has reasonable prospects of success" and that "[I]t need not be demonstrated for the purpose…
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Citation 29 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, t…
Harkness v Harkness [2011] NSWSC 1421
Citation 30 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, t…
Geoghegan v Szelid [2011] NSWSC 1440
Citation 31 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard and Fitzgerald AJJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test…
Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129
Citation 32 (Para 1)

…In Brown v Faggoter [1998] NSWCA 44, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA, there was the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, t…

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