JUSTESEN -v- DENHAM [1999] WASC 181

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 181
Case No:	CIV:2322/1996	Heard:	6-8 SEPTEMBER 1999
Coram:	WHEELER J	Delivered:	24/09/99
No of pages:	19	Judgment Part:	1 of 1
Result:	Findings of fact made
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Parties:	BENT JUST JUSTESEN MAE MCKENZIE DENHAM
Catchwords:	De facto relationship Property dispute Constructive trust Pooling of funds Occupation rent Turns on own facts
Legislation:	Nil
Case References:	Baumgartner v Baumgartner (1987) 164 CLR 137 Biviano v Natoli (1998) 43 NSWLR 695 Calverley v Green (1984) 155 CLR 242 Allen v Snyder [1977] 2 NSWLR 685 Bernard v Josephs [1982] Ch 391 Crew v Sheldon (1995) DFC 95-168 Davis v Johnson [1979] AC 264 Dennis v McDonald [1981] 2 All ER 632 Grant v Edwards [1986] Ch 638 Leake v Bruzzi [1974] 2 All ER 1196 Luke v Luke (1936) 36 SR(NSW) 310 McMahon v Burchell (1846) 2 Ph 127 Muschinski v Dodds (1985) 160 CLR 583 Re Figgis [1969] 1 Ch 123 Suttill v Graham [1977] 3 All ER 1117 Tracy v Bifield, unreported; SCt of WA; Library No 980260; 14 May 1988 Van Rassel v Kroon (1953) 87 CLR 298 Voulis v Kozary (1975) 180 CLR 177

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : JUSTESEN -v- DENHAM [1999] WASC 181 CORAM : WHEELER J HEARD : 6-8 SEPTEMBER 1999 DELIVERED : 24 SEPTEMBER 1999 FILE NO/S : CIV 2322 of 1996 BETWEEN : BENT JUST JUSTESEN

Plaintiff

AND

MAE MCKENZIE DENHAM

Defendant

Catchwords:

De facto relationship - Property dispute - Constructive trust - Pooling of funds - Occupation rent - Turns on own facts

Legislation:

Nil

Result:

Findings of fact made

(Page 2)

Representation:

Counsel:

Plaintiff : Mr R S Hooper

Defendant : Mr A A Jenshel

Solicitors:

Plaintiff : Lewis Blyth & Hooper

Defendant : Elizabeth Wiese & Associates

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

Baumgartner v Baumgartner (1987) 164 CLR 137
Biviano v Natoli (1998) 43 NSWLR 695
Calverley v Green (1984) 155 CLR 242

Case(s) also cited:

Allen v Snyder [1977] 2 NSWLR 685
Bernard v Josephs [1982] Ch 391
Crew v Sheldon (1995) DFC 95-168
Davis v Johnson [1979] AC 264
Dennis v McDonald [1981] 2 All ER 632
Grant v Edwards [1986] Ch 638
Leake v Bruzzi [1974] 2 All ER 1196
Luke v Luke (1936) 36 SR(NSW) 310
McMahon v Burchell (1846) 2 Ph 127
Muschinski v Dodds (1985) 160 CLR 583
Re Figgis [1969] 1 Ch 123
Suttill v Graham [1977] 3 All ER 1117
Tracy v Bifield, unreported; SCt of WA; Library No 980260; 14 May 1988
Van Rassel v Kroon (1953) 87 CLR 298
Voulis v Kozary (1975) 180 CLR 177

(Page 3)

1 WHEELER J: The parties in this matter are in dispute concerning the ownership of a house property, two motor vehicles, a diamond ring, and certain small items of furniture. I am told that it should be possible for the parties to resolve the furniture dispute. The…

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 JUSTESEN v Denham

Details

AGLC: JUSTESEN v Denham [1999] WASC 181
Case: [1999] WASC 181
Decision Date

CaseChat Overview and Summary

The case of JUSTESEN v DENHAM involved a dispute over the ownership of property acquired during a de facto relationship. The plaintiff, Bent Just Justesen, and the defendant, Mae McKenzie Denham, were in a relationship from 1986 to 1995 or 1996. The property in dispute included a house, two motor vehicles, a diamond ring, and some furniture. The plaintiff claimed an interest in the property proportionate to his contributions, while the defendant asserted equal ownership of the property. The court found that there was no common intention regarding the beneficial ownership of the property, and therefore, a constructive trust was appropriate. The court held that the plaintiff and defendant held the property as tenants in common, with the plaintiff owning 470/800 and the defendant owning 330/800 of the property. The court also dismissed the plaintiff's claim for occupation rent, as the defendant's actions were pursuant to a restraining order, and not an ouster. The court found that the ring was a gift from the plaintiff to the defendant, and the utility vehicle was purchased for use in their newsagency. The plaintiff was allowed to retain the Fairmont vehicle, but the defendant was to retain the chattels to a proportionately greater value to compensate her for the loss of what was intended to be an equal share in the vehicle. The court suggested that the parties consider the form of orders they would wish made, and that each party bear their own costs.

Orders