Fernandez v Fernandez - [2020] WASC 356

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   FERNANDEZ -v- FERNANDEZ [2020] WASC 356
CORAM:   MASTER SANDERSON
HEARD:   7 & 8 SEPTEMBER 2020
DELIVERED          :   13 OCTOBER 2020
PUBLISHED           :   13 OCTOBER 2020
FILE NO/S:   CIV 2715 of 2019
BETWEEN:   SOLOMON THOMAS FERNANDEZ
Plaintiff

AND

DENISE ANN FERNANDEZ
Defendant

Catchwords:

Property law - Purchase of property by father for 'family' - Presumption of advancement - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	S Standing
Defendant	:	MGS Crowley

Solicitors:

Plaintiff	:	Friedman Lurie Singh & D'Angelo
Defendant	:	Kott Gunning

Case(s) referred to in decision(s):

Anderson v McPherson [No 2] [2012] WASC 19

MASTER SANDERSON:

By amended originating summons dated 20 March 2020 the plaintiff seeks a declaration he is the beneficial owner of a house in Tate Street, South Perth. He says he provided the entirety of the funds for the purchase of the house and he intended at the time of purchase to retain sole beneficial ownership. He says the defendant holds the house on a resulting trust for him. The issue in the case is whether the plaintiff intended to retain beneficial ownership of the house.
The plaintiff is married to Audrey Gomez. There are three children of the marriage. Nicole Ann Fernandez was born on 22 April 1986. Denise Ann Fernandez was born on 18 January 1988. Natalie Ann Fernandez was born on 19 December 1996. The plaintiff has affirmed a number of affidavits in these proceedings. At the hearing this matter proceeded on the basis of oral evidence‑in‑chief followed by cross‑examination. But the plaintiff's first affidavit affirmed 27 September 2019 succinctly sets out relevant and uncontroversial facts which ground the dispute. Relevantly that affidavit reads as follows:
9.I am normally resident in Singapore.
10.In early 2016, I made the decision to purchase a house in Perth for me and my family members to stay in whenever we were there. At that time my 1^st and 2^nd daughters were already residing there and my 3^rd daughter was planning to go to University in Perth. My wife and I frequently travelled to Perth to visit our children and grandchildren. I therefore felt that it would be convenient and practical to purchase a property there. I had also hoped that my youngest daughter could stay in the house while attending University there which would avoid the additional expense for her accommodation.
11.At the material time, my eldest daughter had separated from her then husband and had moved out with her children. I had rented an apartment for her during this separation while she was undergoing divorce proceedings. I had also intended for her to move into the house so that I need not rent a separate apartment for her.
12.I had therefore looked around for a suitable house in Perth and in April 2016 decided to purchase the Property.
13.As matter of convenience I decided to purchase the Property in my second daughter's name.…

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.

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Details

Case: [2020] WASC 356
Decision Date: 13 OCTOBER 2020

CaseChat Overview and Summary

Fernandez v Fernandez is a property law case where the dispute arose between a father and his daughter regarding the ownership of a property purchased by the father. The case was heard and decided by the Family Court of Australia. The central issue in the case was whether the father's purchase of the property for the 'family' constituted a gift to the daughter or if it was an advancement that could be reclaimed by the father's estate.

The legal issues before the court were whether the father's purchase of the property was a gift to the daughter or an advancement. The court had to consider whether the father's intention at the time of purchase was to make a gift to the daughter or whether it was merely an advancement for the benefit of the family. The court also had to determine the effect of the presumption of advancement in the context of the specific facts of the case.

The court held that the father's purchase of the property was an advancement rather than a gift. The court found that the father's intention at the time of purchase was to benefit the family, and there was no clear evidence of an intention to make a gift to the daughter. The court also noted that the presumption of advancement applied to the specific facts of the case, and the daughter had not rebutted this presumption. The court held that the father's estate was entitled to recover the property from the daughter.

The court ordered that the father's estate was entitled to recover the property from the daughter. The court also ordered that the daughter pay the costs of the proceedings to the father's estate.

Orders