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
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:
Solicitors:
S Keizer (Plaintiff)
N Simpson (Defendant)
Toronto Legal (Plaintiff)
The Charlestown Law Firm (Defendant)
File Number(s): 2022/00160056 Publication restriction: Nil
ex tempore JUDGMENT (revised)
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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.
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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.
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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.
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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.
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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.
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For completeness, I note that David abandoned any…
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- AGLC
- Harvey v Harvey [2024] NSWSC 623
- Case
- [2024] NSWSC 623
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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