De Lacey v James

[2003] QSC 94

SUPREME COURT OF QUEENSLAND

CITATION:

De Lacey v James [2003] QSC 094

PARTIES:

 JACQUELINE JUNE DE LACEY
(Plaintiff)
v
DERECK ARTHUR JAMES
 (Defendant)

FILE NO/S:

S.94 OF 1998

DIVISION:

Trial

PROCEEDING:

Application for Orders

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

9 April 2003

DELIVERED AT:

Townsville

HEARING DATE:

9 & 10 December 2002, 1 April 2003

JUDGES:

Cullinane J

ORDER:

Order that the defendant transfer all his right and title to and interest in:

(a)    the land described as 9 Parnell Court, Lot 10 on RP 739531, Parish of Coonambelah, County of Elphinstone;

(b)    moneys held in joint bank account number 3899-37394 at the ANZ Bank; and

(c)  jointly owned furniture in the dwelling situated at Parnell Court

to the plaintiff.

In all other respects the claims are dismissed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – OTHER MATTERS – where plaintiff seeks declarations of beneficial entitlement to property, following breakdown of de facto relationship with defendant – where principles of constructive trusts apply – whether plaintiff is entitled to declarations over defendant’s business interests.

Property Law Act 1974 (Qld)

Fuller v Meehan (1999) QCA 37, followed

Engwirda v Engwirda & Others (2000) QCA 61, followed

Re: Bailey (1978) FLC 90-424, considered
Re: Crapp (1979) FLC 90-165, considered

COUNSEL:

CA White for the Plaintiff/Applicant.
WL Pack for the Defendant/Respondent.

SOLICITORS:

Dickinson Simeoni & Robins for the Plaintiff/Applicant.
Ruddy Tomlins & Baxter for the Defendant/Respondent.

1. This is a case in which the parties lived in a de facto relationship for some 16 years before separating.  The plaintiff seeks declarations that she is beneficially entitled to or has a beneficial interest in certain property, some of which is held jointly with the defendant and some of which is held in the defendant’s name and seeks consequential orders in relation to such property.

1. It is acknowledged by the defendant that there should be orders transferring his interest in jointly owned property (a dwelling at Parnell Court, Townsville, moneys in a joint bank account and furniture at the dwelling) to the plaintiff.  What this litigation has been about in substance is a claim by the plaintiff to an entitlement in the defendant’s business interests. 

1. The 1999 amendments to the Property Law Act 1974 (Qld) conferring upon the court a wide power to make orders which are just and equitable in relation to matters of property have no application here. The matter therefore falls to be dealt with in accordance with the principles applicable to constructive trusts as they have been developed in the cases. The pleading here is wide enough to cover both a claim based upon a joint intention of the parties that the property be held for the benefit of both and a claim based upon the alternative grounds of unconscionability.

1. These principles necessarily mean that the claim is to be considered by reference to somewhat narrower considerations than would have been the case if the Property Law Act applied.  See the judgment of the Court of…