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Findlay v Besley

Findlay v Besley

Case [2003] VSC 247 3 July 2003

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4965 of 2002

DAVID JELLICOE FINDLAY	Plaintiff
v
SUZANNE MARGARET BESLEY	Defendant

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JUDGE:	MORRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	23, 24, 28-30 April, 1-2, 5-9, 12-16 May 2003
DATE OF JUDGMENT:	3 July 2003
CASE MAY BE CITED AS:	Findlay v Besley
MEDIUM NEUTRAL CITATION:	[2003] VSC 247

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Property of domestic partners – Part 9 of Property Law Act 1958 (Vic) – Order adjusting interests of domestic partners in property – Financial and non-financial contributions – Just and equitable – Constructive trust – Money had and received

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Daryl J Williams (on 23 April 2003 with Mr P Daniel Sweeney)	Findlay Arthur Phillips
For the Defendant	Mr David P Forbes	Patrick J Cannon, Coburn & Associates

HIS HONOUR:

Introduction

For many years the plaintiff and the defendant were involved in a domestic relationship, in which they derived support and comfort from each other. This relationship began in September 1988 and ended in February 2002. The actions before the Court flow out of the break up of that relationship.

The plaintiff is a man who was born on 5 November 1937 and who is now 65 years old. He has been a legal practitioner for many years, mainly practising as a solicitor, but with a short period of practice as a barrister. The plaintiff had previously been married and had two daughters from that marriage.

The defendant is a woman who was born on 28 April 1946. She was previously married to one Peter Besley, and had three girls, born in 1976, 1977 and 1980, by that marriage.

The plaintiff and the defendant met for the first time in about 1984. There was contact between them in the subsequent years, resulting in the defendant moving into the plaintiff's unit at Bruce Street, Toorak ("the Bruce Street dwelling") in September 1988. The defendant's three daughters, then aged 12, 10 and 7, moved in as well.

From that point, until February 2002, the plaintiff and the defendant lived in a domestic relationship, first at the Bruce Street dwelling and subsequently at Unit 1, 83 Grange Road, Toorak ("the Grange Road dwelling"). All three Besley girls, Claire, Michelle and Nicole, lived with the plaintiff and the defendant until about 1997 or 1998; and Michelle and Nicole lived with the plaintiff and the defendant for most of the period up until February 2002.

The relationship between the plaintiff and the defendant was a close one. Quite obviously they shared a dwelling, enjoyed each other's company and had sexual relations. But there was more than that. The plaintiff described the defendant as "his best mate". And the defendant oriented her life around her children and the plaintiff.

The domestic arrangements were fairly traditional. The plaintiff earned the lion's share of the income which came into the domestic unit; whereas, I find, that the defendant bore the lion's share of the homemaker…

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 Findlay v Besley

Details

AGLC: Findlay v Besley [2003] VSC 247
Case: [2003] VSC 247
Decision Date: 3 July 2003

CaseChat Overview and Summary

The case of Findlay v Besley involved a dispute between two domestic partners over the ownership of a property. The respondent, Besley, claimed that the appellant, Findlay, was not entitled to a share in the property. The matter was heard in the Supreme Court of Victoria. The central issue was whether the appellant had a claim to a share of the property based on her financial and non-financial contributions to the relationship and the running of the household. The court had to determine if the property was held on a constructive trust and whether an order for adjustment of interests was just and equitable.

The court examined the contributions made by the appellant to the property and the relationship. The appellant had made significant financial contributions to the property by paying for household expenses and contributing to the deposit. The court also considered the non-financial contributions, such as the care and maintenance of the property and the running of the household. The court held that the appellant's contributions were substantial and that an order for adjustment of interests was just and equitable. The court found that the property was held on a constructive trust and that the appellant was entitled to a share of the property.

The court ordered that the property be held on trust for the parties in equal shares. The court considered the financial and non-financial contributions of both parties and held that an equal division of the property was just and equitable. The court also noted that the appellant had a claim for money had and received, as the respondent had retained some of the appellant's contributions to the property. The court ordered the respondent to pay the appellant the amount of her contributions to the property.

Orders