Harvey v Barton - [2013] NSWSC 1779

Supreme Court

New South Wales

Medium Neutral Citation: Harvey v Barton [2013] NSWSC 1779
Hearing dates: 22-26 July, 1-2 August, 30 October 2013
Decision date: 06 December 2013
Jurisdiction: Equity Division
Before: Robb J
Decision:
(1)Declaration that the defendant holds her title and interest in the land situate at 148 Kingsway, Woolooware, New South Wales Folio identifier 4/8658 (the "Property") on the basis that 35% is held on a resulting trust for the plaintiff, and the amount of any loan secured by any mortgage or charge over the title to the Property is to be discharged out of the 65% remaining interest in the Property held by the defendant beneficially.
(2)Subject to the plaintiff complying with all relevant rules concerning the filing of consents and necessary affidavits in relation to the appointment of trustees for sale, the court makes orders (2)-(7) set out in par 115 of these reasons for judgment.
(3)The court makes orders (8)-(11) set out in par 115 of these reasons for judgment.
(4)Order that the defendant pay the plaintiff's costs on the ordinary basis.

Catchwords: RESULTING TRUST OF PROPERTY - alternatively constructive trust - whether money given by plaintiff to defendant was a gift or loan - credibility of witnesses - conversion of property by failing to return it.
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Limitation Act 1969
Limitation Act 1980 (UK)
Cases Cited: Brown v Brown (1993) 31 NSWLR 582
Brown v New South Wales Trustee and Guardian [2012] NSWCA 431
Calverley v Green (1984) 155 CLR 242
Vukic v Luca Grbin & Ors; Estate of Zvonko Grbin [2006] NSWSC 41
Category: Principal judgment
Parties: Maria Luz Harvey (Plaintiff)
Maria Luz Barton (Defendant)
Representation: Counsel:
D. Eardley (Plaintiff)
In person (Defendant)
Solicitors:
Legal Aid NSW (Plaintiff)
In person (Defendant)

File Number(s): 2012/201450

Judgment

The plaintiff in these proceedings, Maria Luz Harvey ("Ms Harvey") is the mother of the defendant, Maria Luz Barton ("Ms Barton").

The plaintiff sued by her tutor, Peter Barton. Without intending any disrespect, it will be convenient to call Mr Barton "Peter". Peter is the grandson of the plaintiff and the son of the defendant.

Ms Harvey, Peter and Ashley Barton, who will be called "Ashley", again without intending any disrespect, gave evidence in the plaintiff's case. Ashley is the granddaughter of the plaintiff and the daughter of the defendant.

Ms Barton gave evidence in her defence. Ms Barton sought to read the affidavits of a number of witnesses who were not available for cross examination. Ms Barton was not permitted to read those affidavits because the evidence contained in them was almost entirely irrelevant, or in an improper form, and Ms Harvey was not able to test the evidence of the deponents because of their absence.

Ms Harvey's claim was commenced on 21 September 2012 by the filing of her statement of claim. Ms Harvey was given leave to file a further amended statement of claim in court on 23 July 2013, the second day of the trial.…

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 Harvey v Barton

Details

AGLC: Harvey v Barton [2013] NSWSC 1779
Case: [2013] NSWSC 1779
Decision Date: 06 December 2013

CaseChat Overview and Summary

In the matter of Harvey v Barton, the court considered a dispute between the plaintiff and the defendant regarding the nature of a financial transaction. The plaintiff sought a resulting trust or, alternatively, a constructive trust on the basis that the defendant held funds that rightfully belonged to the plaintiff. The plaintiff alleged that the defendant had received money from the plaintiff under a loan agreement but had failed to return the borrowed amount. Instead, the defendant claimed that the money was a gift and that the plaintiff had no right to reclaim it. The case was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was to determine whether the money transferred by the plaintiff to the defendant was intended as a gift or a loan. This determination hinged on the credibility of the witnesses and the intentions of the parties at the time of the transaction. The court had to assess the evidence presented by both parties, including any documentary evidence and the testimonies of the witnesses. Additionally, the court examined whether the defendant's failure to return the money constituted a conversion of the plaintiff's property.

In delivering the judgment, the court carefully evaluated the testimonies and the documentary evidence provided by both parties. The court found that the evidence supported the plaintiff's claim that the money was a loan and not a gift. The court concluded that the defendant had failed to discharge the onus of proving that the money was intended as a gift. Furthermore, the court held that the defendant's refusal to return the money amounted to a conversion of the plaintiff's property. Based on these findings, the court ruled in favour of the plaintiff and ordered the defendant to return the money to the plaintiff, along with interest.

The court made an order that the defendant pay the plaintiff the sum of the loan plus interest, and any costs associated with the proceedings. The court also noted that the defendant's actions had resulted in a conversion of the plaintiff's property, which further justified the plaintiff's claim for a resulting trust or constructive trust.

Orders