Day v. Gould

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.