Harvey v Harvey - [2024] NSWSC 623

Supreme Court

New South Wales

Medium Neutral Citation: Harvey v Harvey [2024] NSWSC 623
Hearing dates: 20, 21 May 2024
Decision date: 21 May 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [64]

Catchwords:
EQUITY — Trusts and trustees — Constructive trusts — Common intention — Where a father now deceased built house on son’s land — Whether inference as to common intention that father be entitled to an interest in son’s land should be drawn

Legislation Cited:
Succession Act 2006 (NSW), s 112

Cases Cited:
Bassett v Cameron [2021] NSWSC 207
Behman v Behman [2015] NSWSC 1787
Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336
Clayton v Clayton [2023] NSWSC 399
Galati v Deans & Ors [2023] NSWCA 13
Green v Green (1989) 17 NSWLR 343
Jemmark Pty Ltd v 10 Egan Street Pty Ltd [2022] NSWSC 865
Shepherd v Doolan [2005] NSWSC 42

Texts Cited:
JD Heydon, Cross on Evidence (14th Aust ed, 2023, Lexis Nexis)

Category: Principal judgment
Parties: David Anthony Yuri Harvey as Administrator of the Estate of the late Edward Harvey (Plaintiff)
Mark Edward Harvey (Defendant)
Representation:
Counsel:
S Keizer (Plaintiff)
N Simpson (Defendant)
Solicitors:
Toronto Legal (Plaintiff)
The Charlestown Law Firm (Defendant)

File Number(s): 2022/00160056
Publication restriction: Nil

ex tempore JUDGMENT (revised)

The children of the late Edward Harvey and the late Heather Harvey are in dispute. I refer to each of the family members involved by their first names, meaning no disrespect.
Heather died on 25 December 2013 intestate, and her whole estate passed to Edward pursuant to s 112 Succession Act 2006 (NSW). Edward died on 29 August 2019 intestate.
The youngest of the three children, David, is the administrator of Edward’s estate. Mark is the oldest child and the defendant. The parties’ other sibling, Lara, is not a party to the proceedings, nor a witness for either of her brothers. David is estranged from his siblings.
David alleges that, because his late parents sold their home and used a large portion of the sale proceeds to build a dwelling for themselves on Mark’s property at New Lambton, New South Wales, he can establish that his late father and Mark had a common intention that Edward would hold an interest in Mark’s property, likely as to 50%. David asserts that Edward’s interest in Mark’s property ought to be declared and, thereafter, it will be distributed to the three children equally from the intestate estate.
Whether there was such a common intention is the sole issue in these proceedings, because Mark denies such a common intention. Mark asserts that, while obtaining a proprietary interest in his land was one idea that he and his father discussed, his father did not pursue it. Instead, Mark asserts his father was content to construct his dwelling and then live there mortgage and rent free and with physical and emotional support from Mark and his wife for the final ten years of his life.
For completeness, I note that David abandoned any…

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 Harvey

Details

AGLC: Harvey v Harvey [2024] NSWSC 623
Case: [2024] NSWSC 623
Decision Date: 21 May 2024

CaseChat Overview and Summary

The case involved a dispute between Harvey and Harvey, where the father had constructed a house on his son's land. The central issue was whether a common intention existed that the father should hold an interest in the son's property. The dispute was heard in the Supreme Court of New South Wales. The legal issues that the court needed to address included the nature of the common intention, whether such an intention existed, and if so, what the implications were for the distribution of the property. The court examined the circumstances under which the house was built and the relationship between the parties to determine if there was an implied agreement or understanding that the father would have an interest in the land.

The court focused on the evidence presented regarding the father's contributions to the construction of the house and the son's acceptance of those contributions. The court applied principles of equity, particularly those relating to constructive trusts, to assess whether the father's actions and the son's acquiescence amounted to a common intention that would result in the father holding an interest in the property. The court concluded that the father's significant contributions to the construction of the house, along with the son's acceptance of those contributions, indicated a common intention that the father should have an interest in the property. The court found that a constructive trust should be imposed on the property in favour of the father's estate.

Based on the findings, the court ordered that the property be held on trust for the father's estate, reflecting the common intention that he should have an interest in the land. This decision underscored the importance of the circumstances surrounding the construction of the house and the relationship between the parties in determining the existence of a common intention. The court's ruling ensured that the father's contributions were recognised and appropriately compensated through the imposition of a constructive trust.

Orders