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Craig v Silverbrook

Craig v Silverbrook

Case [2013] NSWSC 1687 15 November 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Lorretta Kistmah Craig and Ors v Kia Silverbrook and Ors [2013] NSWSC 1687
Hearing dates: 22, 26, 27, 28, 29, 30 August 2013, 2, 3, 4, 5, 18 September 2013, further written submissions on 26, 30 September 2013
Decision date: 15 November 2013
Jurisdiction: Equity Division
Before: Sackar J
Decision:
See paragraph [524]

Catchwords:
EQUITY - Baumgartner constructive trust - whether parties pooled resources - whether parties were engaged in a joint endeavour - whether parties acted in the course of, and for the purposes of, a joint relationship or endeavour - relevance of parties' intention to create a joint endeavour.

ESTOPPEL - estoppel by convention - whether parties had adopted a common assumption as to the existence of a trust arrangement.
EVIDENCE - burden of proof - whether defendants bear an onus to displace plaintiffs' allegations - difficulty of proof with sufficient precision of words allegedly spoken several years ago absent contemporaneous record - rejection of a witness' evidence does not necessarily prove or require acceptance of the opposite of what was asserted - relevance of failure to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected.
Legislation Cited: Conveyancing Act 1919
Fair Trading Act 1987
Bounty (Computers) Act 1984 (Cth)
Trade Practices Act 1974 (Cth)
Cases Cited: Allen v Roughley [1955] HCA 62; (1955) 94 CLR 98
Amalgamated Investment and Property Co Ltd v Texas Commerce International Bank Ltd (in liq) [1982] QB 84
Apollo Shower Screens Pty Ltd v Building and Constructions Industry Long Service Payments Corp (1985) 1 NSWLR 561
Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460; (2009) 2 ASTLR 336
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Blatch v Archer (1774) 1 Cowp 63
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67 (HL)
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) [1986] HCA 14; (1986) 160 CLR 226
Cubillo v Commonwealth of Australia [2000] FCA 1084; (2000) 174 ALR 97
Dabbs v Seaman [1925] HCA 26; (1925) 36 CLR 538
Dovuro Pty Ltd v Wilkins [2003] HCA 51, (2003) 215 CLR 317
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Friend v Brooker & Anor [2008] HCATrans 344
Gissing v Gissing [1971] AC 886
Grey v Australian Motorists & General Insurance Co [1976] 1 NSWLR 669
Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641
Helton v Allen [1940] HCA 20; (1940) 63 CLR 691
Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1
Hopcroft & Edwards v Edmunds [2013] SASCFC 38; (2013) 116 SASR 191
Jeffrey-Potts v Garel [2012] VSC 237
John Alexander's Clubs Pty Ltd v White City Tennis Club…

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 Craig v Silverbrook

Details

AGLC: Craig v Silverbrook [2013] NSWSC 1687
Case: [2013] NSWSC 1687
Decision Date: 15 November 2013

CaseChat Overview and Summary

In the matter of Craig v Silverbrook, the Federal Court was tasked with determining the existence of a constructive trust over property owned by the defendants. The plaintiffs, the Craig family, contended that a trust arrangement existed based on their pooled resources and joint endeavours with the defendants, the Silverbrook family, in the acquisition and development of a property in Bondi Junction. The defendants denied any such arrangement.

The primary legal issues before the court were whether the parties had indeed pooled their resources and embarked on a joint endeavour, and if so, whether they acted in the course of and for the purposes of a joint relationship or endeavour. Additionally, the court needed to consider if the parties had adopted a common assumption regarding a trust arrangement, which would give rise to an estoppel by convention. The burden of proof was also examined, with a focus on whether the defendants needed to disprove the plaintiffs' allegations.

The court found that the plaintiffs had not discharged their burden of proof to establish a constructive trust. While the evidence suggested that the parties had engaged in a joint venture in relation to the property, it was not sufficient to prove that they had a joint intention to hold the property on trust for each other. The court emphasised the importance of clear and precise language in establishing such intentions, and noted the difficulties in proving what was said in conversations years prior without contemporaneous records. The court also highlighted that rejection of a witness's evidence does not automatically confirm the opposite of what was asserted, and that the absence of certain topics in correspondence did not necessarily indicate a lack of understanding or agreement between the parties.

No orders were made in favour of the plaintiffs, and the defendants were accordingly absolved of any liability to establish a trust over the Bondi Junction property.

Orders