Hogden v Hogden - [2023] NSWSC 1149

Supreme Court

New South Wales

Medium Neutral Citation: Hogden v Hogden [2023] NSWSC 1149
Hearing dates: 18 September 2023
Decision date: 22 September 2023
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [34]

Catchwords:
EQUITY — Trusts and trustees — Constructive trusts — Whether evidence demonstrates that defendant and deceased held a common intention that property be held as joint tenancy — Where defendant and deceased registered as tenants in common — Where evidence of alleged conversation with deceased uncorroborated
LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees — Where orders made pursuant to s 66G Conveyancing Act 1919 (NSW)

Legislation Cited:
Conveyancing Act 1919 (NSW) Pt 4 Div 6, s 66G

Cases Cited:
Allen v Snyder (1989) 17 NSWLR 343
Arrow Custodians Pty Ltd v Pine Forests of Australia Pty Ltd (2015) 18 BPR 35
Koprinvjak v Koprinvjak [2023] NSWCA 2
Plunkett v Bull (1915) 19 CLR 544
Stibbard-Leaver v Leaver [2021] NSWSC 65

Texts Cited:
Nil

Category: Principal judgment
Parties: Suzanne Marie Hogden (Plaintiff)
Gregory Francis Allen Hogden (Defendant)
Representation:
Counsel:
D Price (Plaintiff)
L Byrne (Defendant)
Solicitors:
McPhee Kelshaw Pty Ltd (Plaintiff)
Coleman Greig Lawyers (Defendant)

File Number(s): 2021/00353218
Publication restriction: Nil

Judgment

This is a dispute between siblings concerning a half-interest in a property at Big Jacks Creek, which is approximately 90km south-west-south of Tamworth (Property).
The plaintiff, Suzanne Hogden, seeks orders for a trustee sale of the property pursuant to s 66G of the Conveyancing Act1919 (NSW). Since November 2019, she has been the registered proprietor of half of the property, as executrix of the will of her father, Allan James Hogden. When he died in February 2019, the deceased held his half-share as a tenant in common with his son, the defendant, Gregory Hogden.
The defendant resists the orders for sale, asserting that he and the deceased had a common intention that the Property would be held by them as joint tenants, and that such intention ought to be recognised by a declaration of a “common intention constructive trust”.
The only evidence of the alleged common intention is conversations with the deceased, to which the defendant deposes. Therefore, the defendant’s case turns on whether he can establish on the balance of probabilities that those conversations took place, and whether the other elements of a common intention constructive trust are made out.

Acquisition of the Property

In June 2001, the deceased and the defendant purchased a farm at Breeza, NSW (Old Farm). They each contributed approximately half of the $247,500 purchase price when they acquired the Old Farm as “tenants in common in equal shares”.
Despite registration of title in that form, the defendant’s evidence is that he had a conversation with the deceased, in which the deceased said to him:

…if either of us dies, the other one of us will get the whole property.

According to the defendant, the deceased did “most of the negotiations” with the solicitor concerning the way in which title…

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 Hogden v Hogden

Details

AGLC: Hogden v Hogden [2023] NSWSC 1149
Case: [2023] NSWSC 1149
Decision Date: 22 September 2023

CaseChat Overview and Summary

In the matter of Hogden v Hogden, the Supreme Court of New South Wales was asked to determine the ownership of a property held in the names of the defendant, the respondent, and the deceased. The deceased had passed away, leaving the respondent to claim that they were entitled to the full ownership of the property, arguing that they and the deceased had held the property as joint tenants. The deceased's estate, represented by the defendant, argued that the property was held as tenants in common, with each party owning an equal share. The court was tasked with determining whether the evidence presented demonstrated that the deceased and the defendant had a common intention to hold the property as joint tenants, and if so, whether this intention was strong enough to establish a constructive trust.

The central issue before the court was whether the evidence presented was sufficient to establish that the deceased and the defendant had a common intention to hold the property as joint tenants, rather than as tenants in common. This involved examining the evidence of an alleged conversation between the deceased and the defendant, in which the deceased purportedly expressed a desire for the property to be held as joint tenants. The court needed to determine the weight to be given to this uncorroborated evidence, and whether it was sufficient to override the legal default position of tenants in common. Additionally, the court had to consider the effect of the property being registered as tenants in common on the interpretation of the parties' intentions.

The court found that the evidence presented was insufficient to establish that the deceased and the defendant had a common intention to hold the property as joint tenants. The court held that the alleged conversation was not corroborated by any other evidence, and therefore could not be relied upon to establish the necessary common intention. The court also noted that the property was registered as tenants in common, which was indicative of the parties' actual intentions. The court concluded that there was no basis upon which to impose a constructive trust, and that the property was therefore held as tenants in common. The court then proceeded to make orders under section 66G of the Conveyancing Act 1919 (NSW) for the sale of the property and the appointment of trustees to hold the proceeds of sale.

The court ordered that the property be sold, and that the proceeds of the sale be held by the appointed trustees until further order of the court. The court also ordered that the costs of the proceedings be paid equally by the parties. The court's decision was based on the finding that the evidence presented was insufficient to establish a common intention to hold the property as joint tenants, and that the property was therefore held as tenants in common. The court's orders for the sale of the property and the appointment of trustees were made pursuant to section 66G of the Conveyancing Act 1919 (NSW), which provides for the sale of property held by trustees in common.

Orders