Engwirda v Engwirda

[2000] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

Engwirda v Engwirda & Ors [2000] QCA 61

PARTIES:

DENISE MARILYN ENGWIRDA
(plaintiff/appellant)
v
JOHN ENGWIRDA
(first defendant/first respondent)
REGIS PROJECTS PTY LTD   ACN 009 924 761
(second defendant/second respondent)
JOHN ENGWIRDA PTY LTD   ACN 009 815 829
(third defendant/third respondent)
JULIE PATRICIA ENGWIRDA
(fourth defendant/fourth respondent)

FILE NO/S:

Appeal No 321 of 1999
Appeal No 1860 of 1999
SC No 880 of 1994

DIVISION:

Court of Appeal

PROCEEDING:

General civil appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 1999

JUDGES:

Pincus and Davies JJA and Helman J
Judgment of the Court

ORDER:

Appeals dismissed with costs.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – de facto relationship of 15 years – significant difference of assets and earning capacity of partners at start of cohabitation – no joint ownership of assets – first respondent retired eight years after relationship commenced – appellant deriving significant benefits through cohabitation – whether there existed a common intention that assets were held on constructive trust for appellant – whether constructive trust existed based on contributions to a joint endeavour – whether retention by first respondent of separate assets was unconscionable – consideration of assessment principles where contributions to relationship consists of domestic services

Property Law Act 1974 (Qld), s 286, s 291, s 292, s 298, s 299, s 303, s 304, s 305

Baumgartner v Baumgartner (1987) 164 CLR 137, considered
Brown v Manuel (1996) DFC 95–170, distinguished
Dunne v Turner Appeal No 196 of 1995, 20 August 1996, distinguished
Fuller v Meehan [1999] QCA 37; Appeal No 1323 of 1998, 26 February 1999, distinguished
Muschinski v Dodds (1985) 160 CLR 583, considered
Peter v Beblow (1993) 101 DLR (4th) 621, considered
The Public Trustee v M Kukula (1990) 14 FamLR 97, distinguished

COUNSEL:

Mr W J Hodges for appellant
Mr D R Gore QC, with him Ms K A McMillan, for respondents

SOLICITORS:

Philippa Power Solicitor for appellant
Clayton Utz for respondents

The proceeding

1. THE COURT:  These are appeals against orders dismissing the appellant's action and ordering her to pay the respondents' costs, including reserved costs.  The appellant's claim, as originally framed, was for a declaration that three of the respondents held certain property on trust for the appellant as to a one-half share thereof.  The trust alleged was a constructive trust based on a pooling of resources between the appellant and the first respondent, her de facto husband, upon or shortly after the commencement of their cohabitation and a common intention that they would enjoy the benefit of the capital, effort and income contributed by each in equal shares.  The other two respondents against which that declaration was sought were companies controlled by the first respondent.

1. An alternative basis for a constructive trust having been canvassed…