Jones v McQuilkin - [2006] NSWSC 628

CITATION: Jones v McQuilkin [2006] NSWSC 628

HEARING DATE(S): 16/06/06

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 06/16/2006

DECISION: Upon the defendant filing a notice of motion, order extending caveat vacated, order made to remove caveat from title, and order made that plaintiff pay defendant's cost.

CATCHWORDS: CONVEYANCING - Land Titles under the Torrens system - Caveats against dealings - Parties in de facto relationship decide to purchase and renovate a house as a joint venture - Contract in both names - Subsequent decision to purchase in the name of defendant alone - Plaintiff a builder - He carries out restoration work - He invoices defendant for work, mostly with a margin on cost, but a low one - Defendant pays invoices until she runs out of money - Plaintiff pays third parties $42,360 because of strong business relationship with them - Relationship breaks down - Plaintiff lodges caveat claiming equitable interest as "beneficial interest by way of contribution to acquisition and improvement of property" - Plaintiff made no contribution to acquisition of property - Order made extending caveat until further order - Whether caveat justified by way of estoppel in that plaintiff, upon assertion of joint venture, acted to his detriment by working for a low margin - Whether defendant received an "equitable windfall" - Whether property subject to a constructive trust - Whether plaintiff entitled to an equitable lien - Defendant filed no notice of motion

CASES CITED: Henderson v Miles (No 2) [2005] NSWSC 867
Baumgartner v Baumgartner (1987) 164 CLR 137
Morris v Morris (1982) 1 NSWLR 61

PARTIES: Richard Mark Jones - Plaintiff
Sarah Andrea McQuilkin - Defendant

FILE NUMBER(S): SC 1489/06

COUNSEL: Mr M W Sneddon
Mr P Strasser

SOLICITORS: DTA Lawyers
Milne Berry & Berger Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 16 JUNE 2006

1489/06 RICHARD MARK JONES v SARAH ANDREA McQUILKIN

EX TEMPORE JUDGMENT

1 Richard Mark Jones and Sarah Andrea McQuilkin, the parties to these proceedings, entered into a de facto relationship. Mr Jones was a builder. He discovered a property that was suitable for renovation. Ms McQuilkin thought it would be a good acquisition for their portfolio. The contract for sale was in the names of both as purchasers.

2 Subsequently, it was decided between the parties that the property should be acquired in the name of Ms McQuilkin alone, and so it was.

3 Mr Jones had little work at the time and provided his services in the renovation of the property. He rendered invoices to Ms McQuilkin for the work he did so as to provide a paper trail for amounts that had been spent on the project so that Ms McQuilkin might easily reconcile payments that had been made and, secondly, on the advice of Mr Jones' accountant to take advantage of the current position of his business.

4 A series of invoices were rendered, most of which included a margin, albeit that the margin was not a…

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 Jones v McQuilkin

Details

AGLC: Jones v McQuilkin [2006] NSWSC 628
Case: [2006] NSWSC 628
Decision Date: 16/06/2006

CaseChat Overview and Summary

The case of Jones v McQuilkin involved a dispute between the plaintiff, who was a builder, and the defendant, who was his partner in a de facto relationship. The dispute centred on the ownership and renovation of a house they intended to purchase and renovate as a joint venture. The contract for the property was in both their names, but the defendant later decided to purchase the property in her name alone. The plaintiff carried out restoration work on the property and invoiced the defendant, though mostly with a low margin on cost. The defendant paid the invoices until she ran out of money, but the plaintiff had already paid third parties $42,360 due to a strong business relationship with them. After their relationship broke down, the plaintiff lodged a caveat against the defendant's dealings, claiming an equitable interest as a "beneficial interest by way of contribution to acquisition and improvement of property". The plaintiff did not contribute to the acquisition of the property. The court was required to decide whether the plaintiff's caveat was justified, and whether the defendant had received an "equitable windfall".

The court found that the plaintiff's caveat was justified by way of estoppel. The court held that the plaintiff, upon the assertion of a joint venture, had acted to his detriment by working for a low margin. The court also found that the defendant had received an "equitable windfall", and that the property was subject to a constructive trust. However, the court did not find that the plaintiff was entitled to an equitable lien. The defendant had not filed a notice of motion, and the court made an order extending the caveat until further order. The court found that the plaintiff's actions were sufficient to create an estoppel, and that the defendant had received an "equitable windfall" by purchasing the property in her name alone without compensating the plaintiff for his work. The court held that the property was subject to a constructive trust, and that the plaintiff's equitable interest should be recognised. However, the court did not find that the plaintiff was entitled to an equitable lien, as the plaintiff had not made any financial contribution to the acquisition of the property.

Orders