Dyke v Dyke - [1998] VSC 211

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 4922 of 1997

GRAEME LESLIE DYKE Plaintiff
v.

WILLIAM LESLIE DYKE & ORS. Defendants

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JUDGE: CUMMINS, J.
WHERE HELD: MELBOURNE
DATE OF HEARING: 9-30 NOVEMBER 1998
DATE OF JUDGMENT: 23 DECEMBER 1998
CASE MAY BE CITED AS:
MEDIA NEUTRAL CITATION: [1998] VSC 211

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APPEARANCES: Counsel Solicitors
For the Plaintiff Mr. M. Heaton Oakleys Rickard
For the Defendants Dr. C. Hanscombe Birch Ross & Barlow

HIS HONOUR:

This proceeding commenced on 7 April 1997 at which time the plaintiff, Mr Graeme Leslie Dyke, undertook proceedings against his father, Mr William Leslie Dyke, his mother Mrs Shirley Joyce Dyke and his two younger brothers, Mr Stewart Gordon Dyke and Mr Andrew James Dyke for declaratory and other relief in relation to property at Dollar, South Gippsland. The property is constituted by various parcels of land, and stock plant and equipment thereon, which together are operated as a family dairy farm. Essentially the plaintiff's claim now is for declarations that his father the first defendant (who is the registered proprietor of the relevant Homestead property) holds that property on trust for himself and the plaintiff as tenants in common in equal shares, and that his father and mother the first and second defendants (who own the stock plant and equipment) hold those items upon trust for themselves as to half and for the plaintiff as to half as tenants in common in equal shares.
On 21 August 1997, the Master struck out the original statement of claim and granted the plaintiff leave to file an amended statement of claim. On 19 September 1997, an amended statement of claim was filed. On 27 October 1997, the Master struck out that amended statement of claim as against the fourth defendant, Mr Andrew James Dyke (who thereafter has not been a party to these proceedings) and granted leave to file a further amended statement of claim. That further amended statement of claim was filed on 24 November 1997. It is that which is before me for determination.
Mr Graeme Leslie Dyke, the plaintiff, is the son of the first two defendants. He was born on 25 July 1964 and is now 34 years of age. His brother Stewart, the third defendant, is now 31 years of age. His brother Andrew, no longer a defendant, is 32 years of age.
The first defendant's family history relevant to these proceedings is that the first defendant's father died on 1 November 1972 and from September 1973 the first defendant was the sole registered proprietor of land originally in his father's name being comprised of three parcels of 26, 189 and 84 acres called The Homestead property, at Dollar. In an unhappy pre-echo of the present case, the first defendant gave evidence of a family dispute in the previous generation concerning himself, his elder brother and his parents in relation to the then family dairy farm at Dollar. In the event the elder brother was bought out, many years…

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 Dyke v Dyke

Details

AGLC: Dyke v Dyke [1998] VSC 211
Case: [1998] VSC 211
Decision Date: 23 December 1998

CaseChat Overview and Summary

The Supreme Court of Victoria heard a case between Graeme Leslie Dyke, the plaintiff, and his father, William Leslie Dyke, and others, the defendants, concerning property at Dollar, South Gippsland. The plaintiff sought declarations that his father held the Homestead property on trust for himself and the plaintiff as tenants in common in equal shares, and that his parents held the stock, plant, and equipment on trust for themselves as to half and for the plaintiff as to half as tenants in common in equal shares. The case hinged on the alleged conversation between the plaintiff and his father in May 1986, in which the father promised the plaintiff half of the Homestead and half of the stock, plant, and equipment when the parents were in a sufficiently independent financial position to effect it. The defendants denied such a conversation ever occurred.

The court found in favour of the plaintiff, accepting his evidence of the conversation and rejecting the defendants' denials. The court held that the conversation created enforceable legal obligations, and that the plaintiff acted to his detriment by continuing to work on the farm for limited wages, foregoing the development of a farm of his own. The court found that a declaration should issue that the first defendant holds the property on trust for himself and the plaintiff as tenants in common in equal shares, and that the first and second defendants hold the stock, plant, and equipment on trust for themselves for half and the plaintiff for half as tenants in common in equal shares. The counterclaim of the first two defendants failed, but the counterclaim of the third defendant as to mesne profits succeeded. The court ordered the sale by public auction of Bruce's and Nick's, with the right of each of them to bid.

Orders