Gurappaji v Duncan & Anor - [2023] VSC 558

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 00999

KAVITHA SIDDIAH GURAPPAJI	Plaintiff
v
CAYLEN DUNCAN (in his capacity as executor of the estate of Ingrid Mary Phillips)	First Defendant
and
REGISTRAR OF TITLES	Second Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATES OF HEARING:	13–27 September 2022 and 6 October 2022
DATE OF JUDGMENT:	18 September 2023
DATE OF REVISION:	26 September 2023
CASE MAY BE CITED AS:	Gurappaji v Duncan & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 558

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TRUST, EQUITY AND PROBATE – Common intention constructive trust – Proprietary estoppel – Joint endeavour constructive trust – Whether plaintiff has equitable interest in property in which the deceased held title – Whether there was a common intention that the plaintiff hold a part interest in the property – Whether a constructive trust is established on the basis of plaintiff’s contributions to the property – Where plaintiff was in relationship with the deceased – Where relationship ended six years prior to the deceased’s death – Where plaintiff and deceased engaged in negotiation to purchase property prior to death – No common intent – No unconscionable conduct by deceased given financial and other arrangements during and subsequent to relationship – No beneficial interest identified requiring the imposition of a constructive trust – Defendant entitled to mense profits and occupation costs – Muschinski v Dodds (1985) 160 CLR 583 – Cressy v Johnson (No 3) [2009] VSC 52 – Pollock v NSW Trustee and Guardian [2022] NSWSC 923.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D K Carlile	Starnet Legal
For the First Defendant	Mr D G Collins KC Mr K E Mihaly	Alan Sheppet & Associates

TABLE OF CONTENTS

A.. INTRODUCTION........................................................................................................................ 1

B.. THE EVIDENCE........................................................................................................................... 4

Kavitha and Malcolm Chipperton.............................................................................................. 4
The arrangements to purchase the farm.................................................................................... 7
Funds provided after purchase................................................................................................. 14
Practical arrangements at the farm after purchase................................................................ 19
Richard buys out Colin’s interest............................................................................................. 22
Rezoning....................................................................................................................................... 25
Payment of farm expenses......................................................................................................... 26
Kavitha’s health........................................................................................................................... 27
Funding of the Chipperton estate settlement......................................................................... 28
Separation..................................................................................................................................... 30
Kavitha’s arrest and imprisonment.......................................................................................... 34
Kavitha’s release from prison.................................................................................................... 40
1 September 2017 meeting......................................................................................................... 40

C. LEGAL PRINCIPLES................................................................................................................ 45

Common intention constructive trust / Proprietary estoppel............................................. 45
Joint endeavour constructive trust........................................................................................... 47

D.. SUBMISSIONS.......................................................................................................................... 50

Plaintiff’s submissions................................................................................................................ 50
Pleaded case....................................................................................................................... 50
Closing submissions.......................................................................................................... 51

Defendant’s submissions........................................................................................................... 55
Pleaded case....................................................................................................................... 55
Closing submissions.......................................................................................................... 55

E. . CONSIDERATION................................................................................................................... 59

Fact-finding.................................................................................................................................. 59
Kavitha’s evidence...................................................................................................................... 61
Findings........................................................................................................................................ 63
Conclusions.................................................................................................................................. 77

HER HONOUR:

A. INTRODUCTION

Richard Berian Phillips (Richard) was a barrister who died unexpectedly and intestate on 2 January 2018. Since 1 May 2016 he had been married to Ingrid Mary Phillips (nee Duncan) (Ingrid). Between 2004 and June 2012, Richard was in a romantic or domestic relationship with the plaintiff (Kavitha).

On 6 July 2004, Marble and Granite Import Company Pty Ltd (MAGIC Pty Ltd) entered into a contract to purchase a property…

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 Gurappaji v Duncan & Anor

Details

AGLC: Gurappaji v Duncan [2023] VSC 558
Case: [2023] VSC 558
Decision Date: 18 September 2023

CaseChat Overview and Summary

The case of Gurappaji v Duncan & Anor was heard in the Supreme Court of Victoria. The plaintiff, Gurappaji, sought a declaration that they held a beneficial interest in a property owned by the deceased, Duncan, and that a constructive trust should be imposed on the property. The dispute arose following the death of Duncan, who had been in a relationship with the plaintiff for several years before the relationship ended six years prior to his death. The plaintiff claimed that despite the end of their relationship, there was a common intention that they would hold a part interest in the property, and that they should be granted an equitable interest due to their contributions to the property.

The court was required to determine whether there was a common intention that the plaintiff would hold a part interest in the property, and if so, whether a constructive trust should be imposed on the basis of the plaintiff's contributions. The court also had to consider whether there was any unconscionable conduct by Duncan, given the financial and other arrangements during and subsequent to the relationship.

The court found that there was no common intention that the plaintiff hold a part interest in the property, and that the relationship had ended six years prior to Duncan's death. The court also found that there was no unconscionable conduct by Duncan, given the financial and other arrangements during and subsequent to the relationship. The court further found that there was no beneficial interest identified requiring the imposition of a constructive trust. The court held that the defendant was entitled to the mense profits and occupation costs. The court relied on cases such as Muschinski v Dodds, Cressy v Johnson (No 3) and Pollock v NSW Trustee and Guardian in reaching its decision.

The court dismissed the plaintiff's claim and ordered that the defendant was entitled to the mense profits and occupation costs. The court found that there was no common intention that the plaintiff would hold a part interest in the property, and that the relationship had ended six years prior to Duncan's death. The court also found that there was no unconscionable conduct by Duncan, given the financial and other arrangements during and subsequent to the relationship. The court held that there was no beneficial interest identified requiring the imposition of a constructive trust. The defendant was entitled to the mense profits and occupation costs.

Orders