Fitchett v Bertram

In the case of Fitchett v Bertram, the plaintiff sought a declaration regarding the legal and equitable interests in a property, and the proceeds from its sale. The defendant, who had constructed or substantially constructed a residence on the property, claimed an equitable charge or constructive trust over it. The dispute arose from the parties' relationship breakdown and the defendant's assurance to the plaintiff that he would not claim any interest in the property. The matter was heard by the NSW Supreme Court.

The central legal issues revolved around whether the defendant was entitled to a constructive trust or an equitable charge over the property, given the assurance provided by the defendant. Additionally, the court had to determine the entitlement to the proceeds of the sale, considering that the property was purchased in joint names, and the defendant had paid all mortgage repayments and outgoings. The court also needed to address whether the defendant should be accountable for rent and expenses as a co-owner, and if the plaintiff was entitled to an occupation fee for the defendant's occupation of the property.

The court found that the defendant's assurance did not prevent him from claiming an equitable charge over the property. The court held that the defendant had an equitable interest in the property due to the substantial contributions made to its construction. The court also determined that the proceeds from the sale should be apportioned based on the equity held by each party, considering the mortgage repayments and outgoings paid by the defendant. The court further held that the defendant should be accountable for the expenses and that the plaintiff was entitled to an occupation fee. The court concluded that there was no actual ouster of the plaintiff, but the logic of the defendant's offer to settle the case aligned with the court's reasoning.

The court ordered costs on an indemnity basis, recognising the real element of compromise in the defendant's offer, which followed the reasoning of the judgment. The court directed that the defendant pay the plaintiff's costs of the proceedings.