Grant v Grant - [2013] VSC 329

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2009 09850

ROBERT GRANT	Plaintiff
v
DAVID GRANT	First Defendant
- and -
IRENE GRANT	Second Defendant

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JUDGE:	DALY AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 23, 24, 25 October 2012, 7 November 2012, further affidavits and submissions received on 14 February 2013, 26 February 2013, 7 March 2013, 18 March 2013, 20 March 2013 and 25 March 2013.
DATE OF JUDGMENT:	28 June 2013
CASE MAY BE CITED AS:	Grant v Grant
MEDIUM NEUTRAL CITATION:	[2013] VSC 329

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JUDGMENT

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CONSTRUCTIVE TRUST — Claim by son over assets of parents — Whether agreement was entered — Whether common intention constructive trust — Whether constructive trust should be imposed by reason of son’s contributions to the family business — Whether share transfer valid — Ownership of furniture and other chattels.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G McCormick	O’Neill Behan & Associates
For the Defendant	Mr R Young	Waters Lawyers

HER HONOUR:

Background and Overview

Robert Grant, the plaintiff, is the son of the defendants, David and Irene Grant. David and Irene Grant are now in their senior years: indeed, David is now extremely unwell and suffers from dementia. They have another son, Paul Grant, Robert’s brother. By reason of, among other things, the matters which are the subject of dispute in this proceeding, Robert[1] is estranged from his mother and his brother.
[1]For ease of reference, I will refer to the parties and other family members by their first names. No disrespect is intended.

Prior to his semi-retirement in the 1990s, David had run a series of businesses, with mixed success, including a chain of music stores in suburban Melbourne, the last of which closed in 1996. Irene was largely occupied by home duties, and did not take an active part in these businesses or any other businesses operated by David and/other family members. Robert and Paul were both musically inclined and, while the extent of their contribution is disputed, they both worked in the music stores from time to time.

From 1981 the Grants lived on a 40 acre property at 415 Manks Road, Clyde (“property”), just outside the Melbourne metropolitan area. Both David and Irene were the registered proprietors of the property until it was sold in 2012. The net proceeds of sale of the property (after the discharge of all loans secured by the property), being approximately $500,000, are held by a firm of solicitors on trust for the parties pending the outcome of this proceeding.

All of the businesses in which the family had an involvement were operated through a company, Seventh Advocate Management Pty Ltd (“company”). Until 2006, both David and Irene were directors of the company, and each held a 50 per cent shareholding in the company. Since 2006, Robert has been listed as a director and shareholder of the company in the records of the Australian…

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 Grant v Grant

Details

AGLC: Grant v Grant [2013] VSC 329
Case: [2013] VSC 329
Decision Date: 28 June 2013

CaseChat Overview and Summary

In the matter of Grant v Grant, the primary concern was the ownership of various assets held by the parents of the plaintiff, Grant. The dispute centred on whether the plaintiff had a claim over the assets of his parents, including shares in a family business and various chattels. The Family Court of Australia was tasked with determining the legal ownership of these assets and resolving the contention between the parties.

The court was required to ascertain whether an agreement was entered into by the parents and the plaintiff that led to the imposition of a constructive trust on the assets. Furthermore, the court needed to decide whether a common intention constructive trust should be recognised based on the contributions made by the plaintiff to the family business. Additionally, the court had to assess the validity of a share transfer and determine the ownership of the furniture and other chattels in question.

The court analysed the evidence presented and found that while the plaintiff had made substantial contributions to the family business, there was insufficient evidence to establish a common intention for the imposition of a constructive trust. The court also found that the share transfer was valid and that the ownership of the furniture and chattels belonged to the parents. Consequently, the plaintiff's claims were dismissed, and the ownership of the assets remained with the parents.

As a result of the court's decision, the plaintiff's claims over the assets were dismissed, and the ownership of the shares, furniture, and chattels remained with the parents. The court's ruling upheld the validity of the share transfer and rejected the imposition of a constructive trust based on the plaintiff's contributions to the family business.

Orders