FAMILY LAW – EQUITY – RESULTING TRUSTS – detailed examination of history and development of the doctrine of resulting trusts – held, no resulting trust established.
FAMILY LAW –UNCONSCIONABLE ASSERTION OF LEGAL RIGHTS – Muschinski v Dodds and Baumgartner v Baumgartner considered – held, it would be unconscionable for applicant to maintain his assertions if a resulting trust had been established.
FAMILY LAW – LACHES – applicability of the doctrine so as to operate in such manner as to disentitle an applicant for equitable relief to the relief sought by reason of laches – review of authorities – held, applicant guilty of laches but by reason of there being no grant of equitable relief, a consideration of the application of the doctrine became unnecessary.
[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.
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AGLC
Emerald & Emerald [2023] FedCFamC1F 183
Case
[2023] FedCFamC1F 183
Decision Date
CaseChat Overview and Summary
In the case of Emerald & Emerald, the husband sought a declaration that a property was held on a resulting trust in his favour, or alternatively, for an order for the sale of the property. The dispute involved the ownership of a property and the circumstances surrounding its acquisition and the contributions made by each party during their marriage. The wife contended that the property was held on a resulting trust in her favour, or alternatively, that any such relief should be refused on the basis of the doctrine of laches.
The court had to determine the legal ownership of the property and whether it was held on a resulting trust in favour of either party. Additionally, the court had to consider whether the doctrine of laches applied to the husband's claim, which could bar him from receiving relief if there was an unreasonable delay in bringing the claim. The court also needed to assess the credibility and weight of the husband's evidence, which was largely self-serving and lacked supporting witnesses.
The court found that the husband's evidence was lacking in precision and detail, and there were inconsistencies and gaps in his timeline of events. The court noted that the husband's assertions of agreements reached with the wife were conclusions rather than evidence of the substance of the conversations. The court also found that the husband's claim was barred by laches, as there had been an unreasonable delay in bringing the claim. The court held that the wife was entitled to the relief sought, and the husband's claim was dismissed.
The court ordered that the property was held on a resulting trust in favour of the wife, and that the husband's claim for an order for the sale of the property be dismissed. The court also made orders for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Further, Mr Fary SC submitted that if I were minded to grant the husband’s application that the property is held on a resulting trust in his favour, then the wife contended that by reason of the doctrine of laches, any such relief ought to be refused.THE HUSBAND’S EVIDENCE In support of his claims in this litigation, the husband relied on his own evidence without other witnesses. He made an affidavit on 3 November 2021, he made his financial statement dated 22 November 2021 and he made his affidavit 22 November 2021. The version of his 3 November 2021 affidavit with agreed objections was marked as a separate exhibit, so as to become his trial affidavit. The following matters of importance were the subject of evidence by the husband – (a)he is 63 years old;(b)he and the wife married in or about 1977 and divorced in 1984;(c)they have five children together, all of whom are adults, in respect of whom he has a relationship with one only, the youngest, now aged 33;(d)he married his current wife in 1985 or thereabouts with whom he has five further children, he having fathered 10 children in total;(e)he met the respondent in Country J in 1977, they married the same year and he travelled to Australia in or about 1978;(f)after arriving in Australia the applicant and the respondent took up accommodation briefly with her brother but soon thereafter rented at an address the applicant can no longer recall;(g)the applicant found employment whereas (according to the applicant) the respondent did not work or receive Centrelink benefits during the marriage;(h)the applicant stated that the respondent’s family exerted significant pressure on their relationship leading, according to the applicant, to the respondent’s brother assaulting him during 1980, at a time when the applicant and respondent were separated;(i)the applicant and respondent briefly reconciled; (j)according to the applicant, by reason of the pressure from the respondent’s family the applicant took the respondent and their (then) three children to Country J in 1982 where they lived for two to three months; and(k)without stating who said what to whom (or even the gist or substance of the conversation or if more than one of those conversations) the applicant asserted that “it was agreed”[86] that he would return to Australia and that the respondent and the three children would remain in Country J for a further three months while the applicant worked in Australia sending the respondent money to support herself and the children.[86] This was a conclusion and, strictly speaking, inadmissible. The information recorded in paragraphs 18 and 19 of his trial affidavit was chronologically confusing and lacking in precision as to dates. For examples, he did not say when nor even in which month of 1982 he left Country J for Australia leaving the respondent and the children in Country J. He did not state when nor even a month when he arrived in Australia. It seemed that the five of them travelled to Country J during 1982 and stayed for up to three months. The applicant appeared to have nearly run out of money when he and the respondent agreed that he would return to Australia leaving the respondent and three children in Country J. He did not state when he left Country J and returned to Australia. However, he stated in paragraph 18 of his trial affidavit that the respondent and the children remained in Country J for a further three months, yet he did not state which were those three months nor did he say which month the respondent and the children returned to Australia. He did not say where he lived upon returning to Australia nor where he worked nor whether and if so how much he sent to the respondent while he allegedly worked in Australia when the respondent and children remained in Country J. Then in paragraph 19 he stated that he left Australia “in or around” yet he did not complete the sentence by giving a date. Nor did he give a reason why he left, whether it was pursuant to some understanding or arrangement with the respondent or whether he simply abandoned the respondent and the children. He said the eldest child was then aged five years and she had been born in 1979 so the year was likely to have been 1984 or 1985. That corresponded with other information he gave about the respondent sending him a notice of divorce and it was common ground that the applicant and the respondent divorced in 1984 after which he “searched for a new spouse” (his words). He married his second wife Ms K in Country J then returned to Australia, settling in Melbourne, not Sydney.