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Hart v Milne

Hart v Milne

Case [2024] WASC 229 26 June 2024

Jurisdiction

Constructive Trust

Unconscionable Conduct

Civil Litigation & Procedure

Trusts & Equity

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HART -v- MILNE [2024] WASC 229
CORAM:   MASTER RUSSELL
HEARD:   19 & 26 JUNE 2024
DELIVERED          :   26 JUNE 2024
FILE NO/S:   CIV 1956 of 2023
BETWEEN:   GERARD RICHARD HART
Plaintiff
AND
JULIE ANN MILNE
Defendant

Catchwords:

Practice and procedure – Judgment in default of appearance – Application for default judgment pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) – Declaratory relief granted – Turns on own facts

Trusts – Constructive trusts – Property owned as joint tenants – Whether failed joint endeavour – Whether unconscionable for party holding legal title to retain interest in property – Turns on own facts

Legislation:

Interpretation Act 1984 (WA), s 13A(1)
Rules of the Supreme Court 1971 (WA), O 5 r 11(1), O 9 r 1(1), O 9 r 1(4), O 13 r 1(1), O 13 r 9(1), O 13 r 9(1)(a), O 13 r 9(2)(b), O 13 r 14, O 18 r 16
Supreme Court Act 1935 (WA), s 25(6)

Result:

Judgment entered in default of appearance
Declaratory relief granted
Declaration that defendant holds property on trust for plaintiff

Category: B

Representation:

Counsel:

Plaintiff	:	Mr S J Brown
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Lynn & Brown Lawyers
Defendant	:	N/A

Cases referred to in decision:

Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378
Bass & Anor v Permanent Trustee Co Ltd & Ors (1999) 198 CLR 334
City of Stirling v Dueschen [2011] WASC 126
David Allan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87
Faithfull v Woodley (1890) 43 Ch D 287
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1
Lloyd v Tedesco [2002] WASCA 63; (2002) 25 WAR 360
Marchese v Marchese [2021] WASC 385
Muschinski v Dodds (1985) 160 CLR 583
Newmarket Court Pty Ltd v Andriani [2001] WASC 292
Phonographic Performance Ltd v Maitra [1998] 2 All ER 638
Willis v The State of Western Australia [No 3] [2010] WASCA 56
Woolcott v Seeger [2010] WASC 19

MASTER RUSSELL:

Overview

The plaintiff, Gerard Richard Hart, and the defendant, Julie Ann Milne (formerly known as Julie Ann Grove), are the registered proprietors as joint tenants of the property located at 19 Mends Way, Waikiki, Western Australia, which is more particularly described as Lot 358 on Plan 17795, being the whole of the land contained in Certificate of Title Volume 1900 Folio 539 (Property).
The plaintiff and the defendant were involved in a romantic relationship between January 1993 and August 1994.
The Property was acquired in September 1993 for the parties to live in together if and when they married. They never married. The relationship ended in August 1994.
The…

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 Hart v Milne

Details

AGLC: Hart v Milne [2024] WASC 229
Case: [2024] WASC 229
Decision Date: 26 JUNE 2024

CaseChat Overview and Summary

The case of Hart v Milne involves a dispute between the plaintiff, Hart, and the defendant, Milne, over the ownership of a property held as joint tenants. The plaintiff sought a declaration of trust and an order for the sale of the property, as well as damages for breach of fiduciary duty. The proceedings took place in the Supreme Court of Western Australia. The primary issue before the court was whether a failed joint endeavour existed between the parties, leading to an unconscionability in the defendant retaining their interest in the property. Additionally, the court had to determine whether the plaintiff was entitled to declaratory relief and whether the application for default judgment was appropriate.

The court considered whether the plaintiff had established a failed joint endeavour and if it was unconscionable for the defendant to retain their interest in the property. The facts of the case were unique, and the court held that the matter could not be resolved based on precedents. Instead, the decision hinged on the specific circumstances and evidence presented. The court found that the plaintiff had demonstrated a failed joint endeavour and that it was unconscionable for the defendant to retain their interest in the property. Consequently, the court granted the plaintiff's application for declaratory relief, ordering that a constructive trust be imposed on the property. Furthermore, the court held that the application for default judgment was appropriate, as the defendant had failed to appear and defend the proceedings.

The court's decision in Hart v Milne underscores the importance of assessing the specific facts of each case when determining the existence of a failed joint endeavour and the unconscionability of retaining a property interest. The court's ruling in favour of the plaintiff resulted in the imposition of a constructive trust on the property and the granting of declaratory relief. The court also upheld the application for default judgment, reflecting the defendant's failure to participate in the proceedings. The final orders of the court include the declaration of a constructive trust on the property, an order for its sale, and the granting of damages for breach of fiduciary duty against the defendant.

Orders