DISTRICT COURT OF QUEENSLAND
CITATION:
King & Anor v Fister & Anor [2020] QDC 333
PARTIES:
ANDREW KING AND JODI KING
(Plaintiffs)
v
KAREN AMANDA FISTER
(First Defendant)
And
CHRISTOPHER ROBERT HALL
(Second Defendant)
FILE NO/S:
14/2018
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
Cairns
DELIVERED ON:
22 December 2020
DELIVERED AT:
Cairns
HEARING DATE:
27 and 28 July 2020
JUDGE:
Fantin DCJ
ORDER:
1. I declare that the sum of $64,032.90 held on trust by the defendants’ solicitors is held on trust for the plaintiffs, and is to be paid to the plaintiffs.
2. No order is made for equitable damages.
3. The defendants’ counterclaim is dismissed.
4. By 4pm Monday 18 January 2021 the parties file and serve submissions of no more than three pages as to costs (to be determined on the papers).
5. Liberty to apply on two business days’ notice.
CATCHWORDS:
EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – COMMON INTENTION – where siblings agreed that one party would buy a property in which the other would live with his family and ultimately acquire the property – where the occupier made payments and undertook improvements to the property – where the occupier did not acquire the property – where the other sibling took possession and sold the property – whether the agreement reached between the parties and their subsequent conduct support a finding that there was a common intention constructive trust – whether the net proceeds of sale of the property are held on a constructive trust for the occupier
LEGISLATION:
Civil Proceedings Act2011 (Qld) s 58
Evidence Act1977 (Qld) s 92
Property Law Act1974 (Qld) s 11
Residential Tenancies and Rooming Accommodation Act2008 (Qld)CASES:
Baumgartner v Baumgartner (1987) 164 CLR 137
Baumgartner v Baumgartner (1985) 2 NSWLR 406Byrnes v Kendle (2011) 243 CLR 253
Calverley v Green (1984) 155 CLR 242
Clancy v Salienta Pty Ltd [2000] NSWCA 248
Gissing v Gissing [1971] AC 886
Grant v Edwards [1986] 2 All ER 426
Green v Green (1989) 17 NSWLR 343
Iman Ali Islamic Centre v Iman Ali Islamic Centre Inc [2018] VSC 413
Muschinski v Dodds (1985) 160 CLR 583
Nathan v Williams & Anor [2020] QCA 138
Shepherd v Doolan [2005] NSWSC 42COUNSEL:
C Ryall for the plaintiffs
M Jonsson QC for the first and second defendants
SOLICITORS:
Preston Law for the plaintiffs
Murray Lyons for the defendants
Introduction
This is a family dispute between a brother and sister, and their respective partners. The sister (Karen[1]) and her partner (Christopher) bought a house for her brother (Andrew) and his family to live in. They intended that Andrew would ultimately acquire the house from them. Andrew agreed to make certain payments with respect to the house. For several years, Andrew and his family lived in the house. They made payments against the mortgage and paid rates and other expenses. They maintained and improved the property. Over time, Karen and Christopher grew frustrated that Andrew…
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- AGLC
- King v Fister [2020] QDC 333
- Case
- [2020] QDC 333
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to determine was whether the agreement between the parties and their subsequent conduct supported the existence of a common intention constructive trust. The court also had to decide whether the net proceeds of the sale of the property were held on a constructive trust for King. The court considered whether the conduct of the parties demonstrated an intention that King would acquire an interest in the property, and whether there was a common intention that the property would be held on trust for King.
The court found that the agreement between the parties and their subsequent conduct demonstrated a common intention that King would acquire an interest in the property. The court held that the payments made by King and the improvements he undertook to the property demonstrated his intention to acquire an interest in the property. The court further found that Fister’s conduct in taking possession of the property and selling it without transferring ownership to King was inconsistent with the common intention that King would acquire the property. The court held that the net proceeds of the sale of the property were held on a constructive trust for King.
The court ordered that the sum of $64,032.90 held on trust by the defendants’ solicitors was held on trust for King, and was to be paid to him. The court dismissed King’s claim for equitable damages and the defendants’ counterclaim. The court ordered the parties to file and serve submissions of no more than three pages as to costs, to be determined on the papers. The court also granted liberty to apply on two business days’ notice.
Orders
Orders of the court
1. I declare that the sum of $64,032.90 held on trust by the defendants’ solicitors is held on trust for the plaintiffs, and is to be paid to the plaintiffs.
2. No order is made for equitable damages.
3. The defendants’ counterclaim is dismissed.
4. By 4pm Monday 18 January 2021 the parties file and serve submissions of no more than three pages as to costs (to be determined on the papers).
5. Liberty to apply on two business days’ notice.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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