D'SOUZA -v- AUGUSTE & ANOR [2001] WASC 310

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 310
Case No:	CIV:1943/2000	Heard:	15-17 OCTOBER 2001
Coram:	PULLIN J	Delivered:	16/11/01
No of pages:	24	Judgment Part:	1 of 1
Result:	Claim dismissed
Category:	B
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Parties:	CHRISTOPHER LLOYD D'SOUZA PATRICIA MARIE FLORISE AUGUSTE REGISTRAR OF TITLES
Catchwords:	Trusts and trustees Constructive trust Claim that express agreement or common intention to share winnings from Lotto ticket
Legislation:	Nil
Case References:	Allen v Snyder [1977] 2 NSWLR 685 Green v Green (1989) 17 NSWLR 343 Smith v McDonnell, unreported; SCt of NSW (Hodgson J); 30 March 1995 Stowe v Stowe (1995) 15 WAR 363 Van Rassel v Kroon (1953) 87 CLR 298 Voulis v Kozary (1975) 180 CLR 177 Brease v Brease (1997) 138 FLR 404

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : D'SOUZA -v- AUGUSTE & ANOR [2001] WASC 310 CORAM : PULLIN J HEARD : 15-17 OCTOBER 2001 DELIVERED : 16 NOVEMBER 2001 FILE NO/S : CIV 1943 of 2000

CIV 1427 of 2000

Consolidated by Order dated 18 July 2000

BETWEEN : CHRISTOPHER LLOYD D'SOUZA

Plaintiff

AND

PATRICIA MARIE FLORISE AUGUSTE

First Defendant

REGISTRAR OF TITLES

Second Defendant

Catchwords:

Trusts and trustees - Constructive trust - Claim that express agreement or common intention to share winnings from Lotto ticket

Legislation:

Nil

(Page 2)

Result:

Claim dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr J R Birman

First Defendant : Mr M J Hawkins

Second Defendant : No appearance

Solicitors:

Plaintiff : Birman & Ride

First Defendant : Naveen Pillay

Second Defendant : No appearance

Case(s) referred to in judgment(s):

Allen v Snyder [1977] 2 NSWLR 685
Green v Green (1989) 17 NSWLR 343
Smith v McDonnell, unreported; SCt of NSW (Hodgson J); 30 March 1995
Stowe v Stowe (1995) 15 WAR 363
Van Rassel v Kroon (1953) 87 CLR 298
Voulis v Kozary (1975) 180 CLR 177

Case(s) also cited:

Brease v Brease (1997) 138 FLR 404

(Page 3)

1 PULLIN J: On Saturday, 22 November 1997, the first defendant, Ms Auguste, was in possession of a Lotto ticket which won a first division prize of $489,175.38. Ms Auguste says that she is the owner of the ticket and the proceeds. The plaintiff, Mr D'Souza, says that Ms Auguste held the ticket in trust for the two of them, and Mr D'Souza sues, seeking a declaration to that effect. He claims that there was an agreement between them to share the proceeds of the winnings. Alternatively, Mr D'Souza claims that there was a common intention to share the proceeds.

Undisputed Facts

2 Mr D'Souza and Ms Auguste met in 1993 and began living together as man and wife in 1996.

3 On 19 January 1996, Mr D'Souza and Ms Auguste rented a house at 42 Cassia Way, Morley. They both signed the rental agreement. On 14 January 1997, they shifted to 12 Niagra Place, Morley and, again, they both signed the rental agreement in…

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 D'Souza v Auguste

Details

AGLC: D'Souza v Auguste [2001] WASC 310
Case: [2001] WASC 310
Decision Date

CaseChat Overview and Summary

In D'Souza v Auguste, the plaintiff, Mr D'Souza, sought to establish a constructive trust over a lottery win, claiming that he and the defendant, Ms Auguste, had an agreement to share any lottery winnings equally. The Supreme Court of Western Australia dismissed the claim, finding that there was no express agreement or common intention to share the proceeds of the lottery ticket in question. The court found that Ms Auguste owned the ticket and the winnings outright, as she had purchased the ticket and had not shared the proceeds with Mr D'Souza on an equal basis. The court noted that while the parties had shared some expenses, the financial burden largely fell on Ms Auguste, and there was no evidence of a shared intention to own or benefit from lottery winnings equally. The court concluded that Ms Auguste's generosity in sharing some of the lottery proceeds with Mr D'Souza did not establish a trust in his favour.

The case hinged on the lack of evidence to support Mr D'Souza's claim of an agreement or common intention to share lottery winnings. The court rejected Mr D'Souza's testimony regarding discussions about sharing lottery tickets and proceeds, finding it inconsistent with other evidence and Ms Auguste's account of events. The court found that Ms Auguste had purchased the winning ticket and had not shared the proceeds on an equal basis with Mr D'Souza, and that there was no common intention to do so. The claim for a constructive trust was therefore dismissed.

Orders