Hutchison v Turnbull

[2006] NSWSC 686

CITATION:	Hutchison v Turnbull [2006] NSWSC 686
HEARING DATE(S):	04/07/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	07/04/2006
DECISION:	Application dismissed with costs.
CATCHWORDS:	CONVEYANCING - Land Titles under the Torrens System - Caveats against Dealings - Application to extend caveat - Respondent owned house into which applicant moved and established a relationship that lasted 2.5 years - In that time applicant contributed $8,000 to mortgage repayments and an unspecified amount on repairs and renovations - Caveat claimed a constructive trust - No evidence that house to become a joint investment - No evidence of intention of respondent to hold in trust for applicant to extent of his contributions - Whether unconscionable for respondent to sell her house unencumbered - Whether caveat should be treated as protecting a resulting trust or an equitable charge - Whether a serious issue to be tried - Whether balance of convenience favoured extension of the caveat
LEGISLATION CITED:	Property (Relationships) Act 1984
CASES CITED:	Muschinski v Dodds (1985) 160 CLR 583 Windella (NSW) Pty Ltd v Hughes (1999) 49 NSWLR 158 Morris v Morris (1982) 1 NSWLR 61
PARTIES:	Paul Hutchison - Plaintiff Loren Julie Turnbull - Defendant
FILE NUMBER(S):	SC 3539/06
COUNSEL:	Ms L Goodchild - Plaintiff Mr G McVay - Defendant
SOLICITORS:	Dribbus Kovacevic Lawyers - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 4 JULY 2006

3539/06 PAUL HUTCHISON v LOREN JULIE TURNBULL

EX TEMPORE JUDGMENT

1 The plaintiff and the defendant were in a relationship which lasted for approximately two and a half years. The relationship broke down.

2 The defendant was advised that the plaintiff intended to sell a property, and the plaintiff lodged a caveat over it. A lapsing notice was served. The caveat, unless extended, will expire today.

3 The plaintiff has brought an application for the extension of the caveat. The caveat identifies a claimed interest in the land in these terms:

“The caveator claims an equitable interest pursuant to a constructive trust arising from payment by the caveator of mortgage repayments and other sums of money towards the property."

4 The affidavit supporting the application indicates that the property was that of the defendant, she having acquired it under a Family Court order following the breakdown of her marriage.

5 The plaintiff moved into the house and contributed $8,000 to mortgage repayments and an unspecified sum on what he described as extensive renovations contributed from a $60,000 payout from IMB. In addition, he said he paid handymen for extensive work, and he painted the fence of the property.

6 The Statement of principle concerning a constructive trust is that of Deane J, with whom Mason J agreed, in Muschinski v Dodds (1985) 160 CLR 583 at 620:

“[The circumstances giving rise to a constructive trust] can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do."

7 In my view there is no evidence of unconscionability in the defendant seeking to sell her house, notwithstanding the contributions made by the plaintiff to which I have referred.

8 There is no suggestion that the defendant acknowledged that by such contributions the property was to become the joint property of she and the plaintiff, nor that he should obtain any equitable interest as a result of those contributions.

9 The contribution of $8,000 over two and a half years is hardly the sort of contribution that would be characterised as that of a joint venturer.

10 It was submitted that I should infer from the evidence that there was an intention that by making the contributions the plaintiff was to gain an equitable interest in the property in proportion to his contributions under a resulting trust.

11 It was pointed out, correctly in my view, that the Court may overlook a misdescription in a caveat if an equitable interest of another sort is established (Windella (NSW) Pty Ltd v Hughes (1999) 49 NSWLR 158 at [26]-[27]). But even if I construe the caveat as claiming an equitable interest in the nature of a resulting trust, there is nothing in the material before me, apart from the bare fact of the contributions, which would lead me to the view that it was intended by the defendant that she should hold her property in trust for the plaintiff by reason, alone, of his contributions.

12 Nor in circumstances where the property was the defendant’s before the relationship began and the plaintiff has appropriate remedies under the Property (Relationships) Act 1984, does it seem to me that it would be unconscionable to allow the defendant to sell the property without acknowledging an interest in it of the plaintiff.

13 The same, it seems to me, applies to a claim to an equitable charge. In Morris v Morris (1982) 1 NSWLR 61 such a charge was made where a father contributed to the extension of a house owned by his son and daughter-in-law and it was held unconscionable for them to have the benefit of the extension without recompense to him for his costs. In those circumstances, a charge was held to be an appropriate remedy. A relatively small contribution to the defendant’s mortgage and an unspecified contribution to repairs and renovations to her house is insufficient, in my view, to make it unconscionable for the property to remain unencumbered to the plaintiff with respect to those contributions.

14 It was said that a caveat does not prevent a sale, it merely protects the interest of the caveator. But in this case the caveat claims an equitable interest without specification of value of that interest, and in those circumstances the property is, from a practical point of view, unsaleable if the caveat remains.

15 In my view, the balance of convenience favours the sale of the property from which any order that might be made under the Property (Relationships) Act 1984 could be satisfied. There is no evidence that, if any such order were made in favour of the plaintiff, the defendant would be incapable of paying the amount of the order.

16 In my view, the lack of any evidence of any matter from which unconscionability on the part of the defendant could be inferred leads me to the view that there is no serious issue to be tried.

17 The fact that there is no evidence that the defendant is incapable of paying out any order that might be made in favour of the plaintiff leads me to the view that the balance of convenience favours the lapsing of the caveat.

18 In those circumstance, I dismiss the summons. I order the plaintiff to pay the defendant's costs.

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