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Chetwynd v Rose

Chetwynd v Rose

Case [2020] NSWSC 111 21 February 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Chetwynd v Rose [2020] NSWSC 111
Hearing dates: 20, 22 March 2017; 4, 5, 6, 7, 26, 27 April 2017; 24 August 2017; 15, 16, 17 October 2018; further written submissions 22 October, 6 December 2018, 21 January 2019
Decision date: 21 February 2020
Jurisdiction: Equity
Before: Kunc J
Decision:
Armidale property held by defendant in trust for herself and natural plaintiffs; some adjustments and liabilities established by the natural plaintiffs against the defendant and vice versa.

Catchwords: EQUITY — Trusts and trustees — Resulting trusts — No issue of principle — Dispute as to ownership of assets and related obligations at conclusion of longstanding but undocumented quasi-partnership — Plaintiffs attempt to undo longstanding accounting treatment of the relationship between the parties
Legislation Cited: Conveyancing Act 1919 (NSW)
Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd [2008] NSWSC 839; (2008) 14 BPR 149
Australian Securities & Investment Commission v Healey (No 2) [2011] FCA 1003
Australian Securities and Investments Commission v Vines [2005] NSWSC 1349
Aytul Ak-Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Calverley v Green [1984] HCA 81; (1984) 155 CLR 242
Chamberlain (t/as capacity as liquidator of Gerard Cassegrain and Co Pty Ltd (in liq)) v Cassegrain [2015] NSWSC 1838
Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1
Forgeard v Shanahan (1994) 35 NSWLR 206
Fulton v Fulton [2014] NSWSC 619
Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964
Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692
Napier v Public Trustee (1980) 32 ALR 153
Re Fettell (1952) 52 SR (NSW) 221
Sangha v Baxter [2009] NSWCA 78
Steinberg v Federal Commissioner of Taxation [1975] HCA 63; (1975) 134 CLR 640
Tory v Tory [2007] NSWSC 1078
Vendervell v Inland Revenue Commissioners [1967] 2 AC 291
Vines v Australian Securities and Investments Commission [2007] NSWCA 75; (2007) 73 NSWLR 451
Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
Whitehead v Whitehead [2002] NSWSC 486
Category: Principal judgment
Parties:
Brian Chetwynd (First Plaintiff)
Jill Chetwynd (Second Plaintiff)
Wincot Pty Ltd (Third Plaintiff)
Glynis Rose (Defendant)
Representation:
Counsel:
B Chetwynd (Litigant in person, for himself, J Chetwynd and Wincot Pty Ltd)

H Stowe (Defendant)
Solicitors:
Fishburn Watson O’Brien (Defendant)

File Number(s): 2015/223303
Publication restriction: No

Judgment

Summary

These proceedings concern what has become a bitter dispute between three people who had been close friends and business colleagues for more than 35 years: the first and second plaintiffs, Brian and Jill Chetwynd, and the defendant, Glynis Rose. Without any disrespect, I shall refer to…

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 Chetwynd v Rose

Details

AGLC: Chetwynd v Rose [2020] NSWSC 111
Case: [2020] NSWSC 111
Decision Date: 21 February 2020

CaseChat Overview and Summary

The plaintiffs, Chetwynd, sought to challenge the longstanding accounting treatment of the relationship between themselves and the defendant, Rose. The dispute centred around the ownership of assets and related obligations at the conclusion of a longstanding but undocumented quasi-partnership. The matter was heard by the Supreme Court of Victoria.

The primary legal issues were whether a resulting trust existed over the assets in question and whether the plaintiffs could successfully challenge the longstanding accounting treatment of the relationship between the parties. The court had to determine whether the plaintiffs could rely on equitable principles to undo the accounting treatment and whether a resulting trust had arisen from the nature of the quasi-partnership.

The court found that there was no issue of principle regarding the existence of a resulting trust. The longstanding accounting treatment of the relationship between the parties was upheld, and the plaintiffs' attempt to challenge it was unsuccessful. The court held that the plaintiffs could not rely on equitable principles to undo the accounting treatment, and that the longstanding treatment of the relationship between the parties was valid. The court also held that no resulting trust had arisen from the nature of the quasi-partnership.

The final orders of the court were that the longstanding accounting treatment of the relationship between the parties was upheld, and that the plaintiffs' claims were dismissed. The plaintiffs were ordered to pay the defendant's costs of the proceedings.

Orders