Day v. Gould - [2006] QSC 252

[2006] QSC 252

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HELMAN J

No 6481 of 2006

JUDITH PARRY DAY

and

JENNIFER JUDITH GOULD

Applicant

Respondent

BRISBANE

..DATE 31/08/2006

JUDGMENT

HIS HONOUR: This is an application for an order removing a caveat, No. 709700582, lodged by the respondent over lot 51 on Crown plan FT147, title reference 14776064. The applicant, who is the registered proprietor of the land, also asks for an order that the respondent pay her costs of and incidental to the application. The applicant is the respondent's mother.

In the caveat the respondent claimed an equitable interest in fee simple as beneficiary of a constructive trust. The grounds given were these: the constructive trust arises by virtue of the application by the caveator of moneys for the maintenance, development, and construction of improvements, the contribution on the subject land such that the caveator is entitled to an interest in the subject land to the extent of the contribution.

In submissions made on behalf of the respondent it was said that reliance could be placed on the principles explained in Muschinski v Dodds (1985) 160 C.L.R. 583. It was said on behalf of the respondent that since that decision the Courts have recognized the potential imposition of a constructive trust over property for the benefit of a contributor to real property. It was submitted that that principle is well established, and what must be ascertained is the minimum equity necessary to assuage the legal owner's conscience of the windfall that would be unconscionably retrained if no order were made. It was further submitted that the evidence supported the application of a constructive trust in favour of the respondent, at least to the extent of her contributions, and perhaps wider.

To justify the retention of the caveat, the respondent must establish a serious question to be tried and that the balance of convenience favours the caveat's remaining on the register.

Before I return to the two issues that arise on this application, it will be convenient if I outline briefly the history of the matter. Before embarking upon that, however, I think it appropriate to mention that some of the evidence put before me on behalf of the respondent is somewhat confused. I shall elaborate that later.

In late 1987, within six months of the death of the applicant's husband, she discussed with the respondent and two of her other three daughters at her home in Taroom what use might be made of three cattle properties of which she was the owner. They are: Craiglea, which is the property the subject of this application; another property called Bowie, and also known as Ollies; and a third property called Waterton. According to the applicant, the precise words she used in the discussion have faded from her memory, but she recalled the substance and effect of the discussion to be this: that she had a large number of cattle, approximately 300 head, and was no longer in a position to manage them or…

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 Day v. Gould

Details

AGLC: Day v Gould [2006] QSC 252
Case: [2006] QSC 252
Decision Date: 31/08/2006

CaseChat Overview and Summary

The case of Day v. Gould involves the applicant, Judith Parry Day, who sought the removal of a caveat lodged by the respondent, Jennifer Judith Gould, over a property known as Craiglea. The respondent claimed an equitable interest in the property as a beneficiary of a constructive trust, asserting that her contributions to the maintenance and improvements of the land entitled her to a share of the property. The applicant, who is also the respondent's mother, argued that the caveat should be removed as it obstructed her ability to deal with the property. The applicant further sought an order for the respondent to pay her costs associated with the application.

The court was tasked with determining whether the respondent had established a serious question to be tried that warranted the retention of the caveat, and whether the balance of convenience favoured the caveat remaining on the register. The court considered the respondent's submissions, which referenced the principles in Muschinski v Dodds, asserting that a constructive trust could be imposed over property for the benefit of a contributor to real property. The court also examined the history of the property, including discussions in 1987 regarding the use of three cattle properties and the supply of cattle to the respondent and her sisters.

The court found that there was a serious question to be tried concerning the existence of the respondent's equitable interest, primarily due to conflicting testimonies and the absence of a written agreement. However, the court concluded that the balance of convenience did not favour the retention of the caveat, as the respondent's claim appeared to be for an amount significantly less than the property's value. The court believed the respondent should pursue her claim without affecting the applicant's ability to deal with the property.

Accordingly, the court ordered the removal of the caveat, with the order to be stayed until a specified date. The court also ordered the respondent to pay the applicant's costs of and incidental to the application.

Orders