EQUITY - GENERAL PRINCIPLES - EQUITABLE ESTATES AND INTERESTS
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE
ESTOPPEL - ESTOPPEL BY CONDUCT - PROPRIETARY ESTOPPEL
Professor Brine died in December 2012. He left to the plaintiff Ms Carter life interests in his principal residence in Australia at the date of his death, a French townhouse and (subject to 40% of any rental being payable to one of his sons) an English apartment. He left the residue of his estate to the defendants being his sons and grandchildren.
Ms Carter entered into a relationship with Professor Brine in 1989. Until they retired in 1997, Ms Carter lived and worked in Leicester and Professor Brine lived and worked in Adelaide. They spent significant time together but the majority of their time apart. From 1997, they lived together as domestic partners, initially in Australia, England and France and from mid 2001 onwards primarily in Australia. Throughout their relationship, each maintained their own properties, investments and bank accounts and paid their own income into their own bank accounts. Between 1997 and 2012, Professor Brine contributed more monies than Ms Carter for the general purposes of their relationship (including their own individual expenses).
In 1989, Ms Carter and Professor Brine purchased a thirteenth century townhouse in France as tenants in common. They each contributed half of the purchase price. They renovated it over the ensuing years. Ms Carter claims that she contributed more to the renovation and holding costs than Professor Brine. She adduced evidence from an accountant that she contributed 83% of those costs. She claims that a proprietary estoppel by acquiescence arises in her favour against the estate such that she became entitled to a beneficial interest as joint tenant and upon Professor Brine’s death to the entire ownership. In the alternative, she claims that a failed joint endeavour contribution constructive trust arose pursuant to which she is entitled to return of the excess of her contributions above 50% together with interest.
In 1999, Ms Carter and Professor Brine purchased an apartment in Leicester as tenants in common in the ratio 60:40. They fitted it out in 2000. From 2004 to 2012 (with one break) they rented it out. They also incurred holding costs. Ms Carter claims that she contributed approximately 75% of the purchase price, fit out costs and holding costs in relation to the apartment. She claims that a failed joint endeavour contribution constructive trust arose pursuant to which she is entitled to return of the excess of her contributions over 60% of the renovation and holding costs together with interest.
At the beginning of the relationship, Professor Brine owned a house in Gilles Street and a vacant block next door. Renovations were undertaken to the house between 1997 and 2009,…
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
AGLC
Carter v Brine [2015] SASC 204
Case
[2015] SASC 204
Decision Date
CaseChat Overview and Summary
The case of Carter v Brine concerns a dispute between Ms Carter and the executors of the late Professor Brine’s estate over the division of his assets, particularly focusing on the lump sum superannuation and the property at Gilles Street. The matter was heard in the Supreme Court of South Australia. The executors claim that Ms Carter breached her fiduciary duties as executor in relation to her claim for Professor Brine’s lump sum superannuation and seek an accounting from her.
The legal issues before the court included determining whether Ms Carter was entitled to a beneficial interest in the Gilles Street property, whether the phrase “my principal residence in Australia at the date of my death” in Professor Brine’s will included both the house and the land, and if Ms Carter had a claim under the Family Relationships Act 1975(SA) as a domestic partner. Additionally, the court had to decide on Ms Carter’s entitlement to a portion of Professor Brine’s bank account balance and whether she had a claim under the Inheritance Act.
The court found that Ms Carter was entitled to a 50% beneficial interest in the Gilles Street block, subject to accounting for half of the costs incurred in partially constructing the duplex house. The court interpreted the will phrase to include both the house and the land. It also declared that Ms Carter had a beneficial entitlement to £6,560 from Professor Brine’s bank account. The court dismissed Ms Carter’s claims under the Family Relationships Act and the Inheritance Act. The court directed further hearings to decide on consequential orders, including the potential sale of the Gilles Street block or a cash payment to Ms Carter in lieu of her 50% beneficial interest.
Orders
Orders of the court
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Background
Background to the litigation
Martin, Matthew and Daniel as executors of Professor Brine’s estate have brought a separate action claiming that Ms Carter breached her fiduciary duties as executor in relation to her claim for Professor Brine’s lump sum superannuation and is obliged to account to the estate for the lump sum paid to her. This action was heard concurrently with the Brine action and all evidence adduced at trial was evidence in each action. For convenience, I deliver separate reasons for judgment in the Brine action.[4] Both reasons for judgment refer to and should be read in conjunction with each other.Background[4] Brine v Carter [2015] SASC 205.Ms Carter Ms Carter was born in the north-east of England in March 1937. In 1958, she was awarded a Bachelor of Arts with Honours. In 1959, she married Norman Pears. They lived in London. In 1960, Ms Carter commenced employment with the London County Council as a town planner. She concurrently undertook a Diploma in Town Planning, which was awarded in 1963. At the beginning of 1965, Ms Carter and Norman moved to Melbourne for three years. Ms Carter met Professor Brine at the University of Melbourne. They became family friends. In 1966, Ms Carter’s elder daughter Susan Pears was born. At the end of 1967, Ms Carter and Norman returned to England. In 1968, they moved to Leicester. Ms Carter became a lecturer in town planning at the School of Architecture at the Leicester Polytechnic, which in 1991 became De Montfort University. In 1968, Ms Carter and Norman bought a three bedroom house at 13 Pine Tree Avenue, Humberstone, a suburb of Leicester (the Pine Tree Avenue house). In 1969, Ms Carter’s younger daughter Rachel Pears was born. At the end of 1973, Ms Carter and Norman separated and in 1975 they were divorced. Ms Carter retained the Pine Tree Avenue house and continued to live in it with her daughters. She assumed responsibility for the mortgage. After the divorce, she made a will leaving her estate to and appointing guardians for her daughters. She made a further will to the same effect without guardianship when Rachel turned 18. She did not make any subsequent will. In June 1975, Ms Carter became a principal lecturer in town planning at the Leicester Polytechnic, where she remained until her retirement in August 1997. She made superannuation contributions while at Leicester Polytechnic. In 1978-1979, Ms Carter extended the Pine Tree Avenue house and increased her mortgage loan to fund the extension. In 1984, Susan commenced a geography degree. In 1989, she completed a degree in town planning. She commenced working as a town planner in Manchester. She married in 1993. She now has three children and lives in Leicester. In 1988, Rachel commenced a Bachelor of Material Science and Engineering degree, which was awarded with Honours in 1991. She completed a Masters Degree in Conservation in 1996. She was employed by ICI while undertaking those degrees. She moved to Townsville in 1999 and was awarded a Ph D by James Cook University in 2005. She married in 2006.
Evidence
Evidence Before The Court
The Pakenham land was recently sold for $250,000.Evidence Ms Carter gave evidence and called Rachel Pears (her daughter), Ms Hastwell and Ms McEwin as witnesses. Ms Carter called expert evidence from a valuer Bill Waterhouse, an actuary Peter Crump and an accountant Philip Camens. Martin, Matthew and Daniel Brine gave evidence. The Brines called expert evidence from a quantity surveyor Kym Fuss and an accountant Hugh McPharlin. Both parties tendered numerous documents. Ms Carter and the Brine brothers were separately represented in their capacity as executors by Ms McEwin. In that capacity, they took no part in the trial and agreed to abide the event.Ms Carter Ms Carter’s credit is important because she gave evidence about her discussions with and dealings involving Professor Brine in respect of which there was no direct contradictor. She also gave evidence about expenditure by Professor Brine and herself in respect of which there was no objective evidence. She was cross-examined at length on issues relevant to her credit and detailed submissions were made by the Brines about her credit. Ms Carter was not an objective witness. Her evidence was coloured, consciously or unconsciously, by her desire to advance her case. She feels a sense of entitlement and grievance that has come to affect her historical narrative and her assessment of the contributions made by Professor Brine and herself to their relationship and their assets.Gilles Street property Ms Carter’s case in relation to the Gilles Street house and block is that as a matter of practical reality, as opposed to legal form, they at all material times comprised a single property. On that premise, her case is that the contributions she says she made and the representations she says Professor Brine made related to a single property and give rise to a beneficial entitlement in that single property rather than relating to one or the other of the properties the subject of the legal titles. In addition, Ms Carter seeks construction of the phrase in Professor Brine’s will “my principal residence in Australia at the date of my death”. Her case is that this denotes the Gilles Street house and block and not just the Gilles Street house. It was in Ms Carter’s interests to give evidence that the house and block were always treated as a single property to advance her case. Ms Carter was asked in evidence in chief about the ability to access the Gilles Street block from the Gilles Street house. She gave the following evidence:Q.Prior to the installation of that gate one could walk out from the house and then how would one get to the land that we now are describing as 446.A.You'd generally walk around the front. Q.Go back towards the west and walk around. A.Yes. Q.So you wouldn't have been able to walk through - A.No, you'd be able to do it from most of the common boundary but it's interrupted from the back by the old laundry, the bed-sit, which is actually on the boundary. But in the past the back, there were no windows there and there was a door which wasn't used, there were a couple of fruit trees, three or four fruit trees and grass and clothesline, so it wasn't a place that you went out there very much, at least not in my time in Gilles Street, so you wouldn't really have wanted to go that way.
Decision
Reasons for decision
I have taken into account moral considerations in applying the test whether adequate provision has been made for the proper maintenance, education or advancement in life. If I analyse the question in terms of the moral claims of Ms Carter and the Brines and the corresponding moral duty of Professor Brine, I reach the same conclusion.Conclusion I will make a declaration that Ms Carter is entitled to a 50% beneficial interest in the Gilles Street block subject to her accounting to the estate for half of the costs incurred in partially constructing the duplex house unpaid at the date of Professor Brine’s death of $11,182. I will hear the parties as to what further orders should be made consequential on that declaration, including whether an order should be made for the sale of the Gilles Street block or for payment of a cash sum out of the estate in lieu of Ms Carter’s 50% beneficial interest in the Gilles Street block. I will make a declaration that Ms Carter has a beneficial entitlement to £6,560 forming part of the balance of Professor Brine’s RBS bank account. I will hear the parties as to consequential orders. I will otherwise dismiss Ms Carter’s equitable claims. I will make a declaration under the Family Relationships Act 1975(SA) that Ms Carter and Professor Brine were on 14 December 2012 “domestic partners” within the meaning of that Act. I will dismiss Ms Carter’s claim under the Inheritance Act. I will hear the parties as to the orders to be made for the disposition of the action.