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Dunphy v Russell

Dunphy v Russell

Case [2018] NSWSC 721 24 May 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Dunphy v Russell [2018] NSWSC 721
Hearing dates: 3 and 4 April 2018
Decision date: 24 May 2018
Jurisdiction: Equity
Before: Sackville AJA
Decision:
1.   Declare that the Defendant holds the proceeds of sale of the Property referred to in the Summons on trust for the Plaintiff as to a one third share.
2.   Order that the Defendant pay from the proceeds of sale of the Property the sum of $379,000, being one third of the proceeds of sale.
3.   Direct that the moneys held in the controlled moneys account referred to in the orders made by Darke J on 27 October 2017 be paid to the Plaintiff or at his direction.
4.   Order that the Defendant pay the Plaintiff’s costs of the proceedings.
5.   Note that Orders 1-4 are subject to Orders 6-8.
6.   Direct that any written submissions proposing amendments to Orders 1-4 be filed and served within 14 days.
7.   Direct that if one party files written submissions within 14 days, the other party should file a reply within a further seven days.
8.   If no written submissions are received within 14 days, Orders 1-4 will become final at the expiration of 14 days.

Catchwords: TRUSTS – father contributes funds to the acquisition of a property by his daughter – whether the contribution was an investment or gift – whether the parties intended a trust to be created
Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C(1), 54A
Evidence Act 1995 (NSW), s 140
Real Property Act 1900 (NSW), s 74K
Statute of Frauds 1677
Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (In Liq) (2000) 202 CLR 588; [2000] HCA 25
Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666
Byrnes v Kendle (2011) 243 CLR 253
Cadd v Cadd (1909) 9 CLR 171; [1909] HCA 59
Ciaglia v Ciaglia [2010] NSWSC 341; 269 ALR 175
CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121
Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6
Laidlaw v Hillier Hewitt Esley Pty Ltd [2009] NSWCA 44
Last v Rosenfeld [1972] 2 NSWLR 923
Nguyen v Phan (No 2) [2015] VSC 634 at [237]
Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491
Rochefoucauld v Boustead [1895] 1 Ch 196
Category: Principal judgment
Parties: Brian Patrick Dunphy (Plaintiff)
Michelle Catherine Russell (nee Murphy) (Defendant)
Representation:
Counsel:
Ms E Peden / Ms J Mee (Plaintiff)
Ms A Power (Defendant)
Solicitors:
McLean & Associates Solicitors (Plaintiff)
Lorne Havenstein Lawyers (Defendant)

File Number(s): 2017/307368

Judgment

SACKVILLE AJA: In these proceedings a father seeks orders against his daughter. The dispute arises out of a contribution made by the father (Plaintiff) towards the purchase by the daughter (Defendant) in her own…

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 Dunphy v Russell

Details

AGLC: Dunphy v Russell [2018] NSWSC 721
Case: [2018] NSWSC 721
Decision Date: 24 May 2018

CaseChat Overview and Summary

In the case of Dunphy v Russell, the parties involved were a father, who contributed funds towards the acquisition of a property by his daughter, and the daughter. The central issue in the dispute was whether the father's contribution was intended as an investment or as a gift. Additionally, the court had to determine if the parties intended to create a trust in relation to the property. The matter was heard in the Supreme Court of Victoria.

The primary legal issues revolved around the interpretation of the father's intention at the time of the contribution and whether there was an intention to create a trust. The court had to consider the relevant principles of trust law, including the three certainties – certainty of intention, subject matter, and objects – to establish if a trust had indeed been created. Furthermore, the court needed to examine the nature of the contribution to discern if it was a gift or an investment, and the implications of each classification on the parties' respective rights and obligations.

The court examined the evidence presented and the circumstances surrounding the contribution. It found that the father intended the contribution to be a gift rather than an investment, based on the context and nature of the transaction. The court concluded that there was no intention to create a trust, as the necessary certainty of intention was lacking. As a result, the father's contribution was treated as a gift, and no trust was established.

The final orders of the court reflected the findings, stating that the father's contribution was a gift and that no trust had been created in relation to the property. The daughter was deemed to hold the property outright, subject to the father's gift. The court provided guidance on the implications of these findings for the parties' future dealings concerning the property.

Orders