Hayes v Grayson - [2001] WASC 251

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: HAYES -v- GRAYSON [2001] WASC 251

CORAM: SCOTT J

HEARD: 21 & 22 JUNE 2001

DELIVERED : 12 SEPTEMBER 2001

FILE NO/S: CIV 2443 of 1998

BETWEEN: RUSSELL FRANCIS HAYES
Plaintiff
AND
MYRTLE DAWN GRAYSON
Defendant

Catchwords:

Real property - Partition of land - Joint tenancy - Unequal contributions to purchase price - De facto couple - Presumption of advancement

Legislation:

Property Law Act 1969, s 126

Result:

Order for sale of property
Division of proceeds in accordance with contributions

Category: B

Representation:

Counsel:

Plaintiff: Mr K J Edwards
Defendant: In person

Solicitors:

Plaintiff: Peter Ward
Defendant: In person

Case(s) referred to in judgment(s):

Calverley v Green (1984) 155 CLR 242
Muschinski v Dodds (1985-1986) 180 CLR 583

Case(s) also cited:

Nil

SCOTT J: The plaintiff and the defendant entered into a de facto relationship in or about the month of June 1992. They initially lived at a property at 3 Skyline Rise Ballajura which was owned by the defendant.
In about November 1992 the plaintiff and the defendant moved to an address at 12 Island Retreat in Ballajura ("Island Retreat"). The property was owned by the defendant's daughter, Belinda Sharlene Ferrett ("Ferrett").
Initially the rental payments to be paid by the plaintiff and the defendant to Ferrett were $290 a fortnight. I accept that the rental payments were in fact paid by the defendant by way of direct debits to her personal bank account. Receipts however for the payment of rental were made out in the name of the plaintiff so as to enable the plaintiff to use the rental payments as an income tax deduction. Ferrett's evidence was that she wrote out rental receipts in the name of the plaintiff at the joint request of the plaintiff and the defendant in order to assist the plaintiff's business by reducing his tax liability.
In July 1993 Ferrett decided to sell Island Retreat and the plaintiff and defendant decided to purchase the property as joint tenants. Ferrett, who at that time was working in the property section of a bank, realised that the combined incomes of the plaintiff and defendant was insufficient for them to be able to raise the necessary mortgage for the balance of the purchase price. The agreement, however, was that the consideration for the property was $136,000. It is common ground that the plaintiff had recently sold his taxi plates and from the proceeds he authorised the sum of $60,000 to be transferred to Ferrett as the deposit on Island Retreat. In addition the defendant paid a further $6,000 by way of deposit.
The plaintiff understood that the balance of the purchase price for the property was to come from a loan to be arranged as soon as possible. It is common ground however that the property did not settle for some two years after the plaintiff paid the deposit of $63,937.55. The sum of $63,937.55 exceeded the initial $60,000 because of fees and incidental expenses.

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 Hayes v Grayson

Details

AGLC: Hayes v Grayson [2001] WASC 251
Case: [2001] WASC 251
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was asked to decide an issue of property division between Russell Francis Hayes and Myrtle Dawn Grayson, who were in a de facto relationship. The primary issue before the court was whether the property, Island Retreat, should be sold and the proceeds divided according to the unequal contributions made by each party, or if the defendant should retain the property outright based on her larger financial contributions during their relationship. The court was required to determine the intention of the parties at the time of the property purchase, and how best to equitably divide the proceeds from the sale.

Scott J found that the clear intention of the parties was for them to equally own the property. Although their contributions to the purchase price had been unequal, they had agreed to adjust their contributions through mortgage repayments to ultimately balance their contributions. The court considered relevant case law, including Calverley v Green and Muschinski v Dodds, which indicated that upon sale of jointly owned property, an equitable accounting should be conducted to compensate for any disproportion between the parties' contributions. The court concluded that the plaintiff was entitled to a credit of $63,937.55 for his deposit payment, while the defendant was entitled to credits totalling $38,913 for her deposit, mortgage credits and reimbursement for the lost trucking business. Any remaining proceeds, after accounting for these credits and outstanding mortgages, should be divided equally between the parties. The court ordered that the property be sold and the proceeds distributed according to this accounting, reserving the issue of costs for later determination.

Orders