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King v Fister

King v Fister

Case [2020] QDC 333 22 December 2020

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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 406

Byrnes 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 42

COUNSEL:

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…

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 King v Fister

Details

AGLC: King v Fister [2020] QDC 333
Case: [2020] QDC 333
Decision Date: 22 December 2020

CaseChat Overview and Summary

The case of King v Fister involved a dispute between siblings over a property that one of them had purchased. The plaintiff, King, and the defendant, Fister, had an agreement where Fister would purchase a property with the intention that King and his family would live in it, and that King would eventually acquire the property. However, Fister took possession of the property and sold it without transferring ownership to King. King sought a declaration that the net proceeds of the sale were held on trust for him. The matter was heard in the Supreme Court of New South Wales.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

King v Fister [2020] QDC 333

Most Recent Citation

King v Fister [2022] QCA 47

Cases citing this decision · 2 of 2 shown

King v Fister
[2022] QCA 47 Para 3

…DAVIS J : This is an appeal and cross-appeal from a judgment given in the District Court in Cairns.[1] [1] King & Anor v Fister & Anor [2020] QDC 333.…
King v Fister (No. 2)
[2021] QDC 4 Para 1

…This judgment deals with the costs of the proceeding I determined on 22 December 2020 in King & Anor v Fister & Anor [2020] QDC 333.…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Green v Green
[2024] NSWSC 1442 Para 1

…iated with the loan facility to acquire the property and their improvements to the property. [31] Shepherd [2005] NSWSC 42 at [37]; Green v Green (1989) 17 NSWLR 343 at [355]. [32] Shepherd [2005] NSWSC 42 at [38], cited with approval by the Queensland Court of Appeal in Nathan at [96].…
Nathan v Williams
[2020] QCA 138 Para 1

…ples with respect to common intention constructive trusts by Brown J in Nathan v Williams & Anor at [24] – [25] and later in those reasons.[28] [28][2020] QCA 138 (‘ Nathan ’).…
Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc
[2018] VSC 413 Para 1

…Doolan [2005] NSWSC 42 at [30] (‘ Shepherd ’). [30] Shepherd [2005] NSWSC 42 at [31]; Iman Ali Islamic Centre v Iman Ali Islamic Centre Inc [2018] VSC 413 at [402], [477] (‘ Iman Ali Islamic Centre ’).…
Byrnes v Kendle
[2011] HCA 26 Para 1

…ion which their words and conduct would reasonably convey to an objective bystander.[41] [41] Gissing v Gissing [1971] AC 886, 906; Byrnes v Kendle (2011) 243 CLR 253, 263 (French CJ), 274–7 (Gummow and Hayne JJ), 289–90 (Heydon and Callinan JJ).…
Shepherd v Doolan
[2005] NSWSC 42 Para 1

…on the basis of that agreement or common intention.[30] [29] Muschinski v Dodds (1985) 160 CLR 583, 615-616 (‘ Muschinski ’); Shepherd v Doolan [2005] NSWSC 42 at [30] (‘ Shepherd ’). [30] Shepherd [2005] NSWSC 42 at [31]; Iman Ali Islamic Centre v Iman Ali Islamic Centre Inc [2018] VSC 413 at [402], [477] (‘ Iman…
Parsons v McBain
[2001] FCA 376

…iance on the common intention occur, and not, as a remedy, from the date of the court’s judgment: Parsons v McBain (2001) 109 FCR 120; 192 ALR 772; [2001] FCA 376. Where Y’s detrimental reliance consists of acts or omissions occurring over a period of time, the constructive trust will arise when the acts or omiss…
Clancy & v Salienta Pty Ltd
[2000] NSWCA 248 Para 1

…properly be not a separate principle but a manifestation, in particular circumstances, of a proprietary estoppel.[39] [39] Clancy v Salienta Pty Ltd [2000] NSWCA 248 [200] per Stein JA (‘ Clancy ’).…
Baumgartner v Baumgartner
[1987] HCA 59

…cies and Rooming Accommodation Act 2008 (Qld) CASES: Baumgartner v Baumgartner (1987) 164 CLR 137 Baumgartner v Baumgartner (1985) 2 NSWLR 406 Byrnes 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…
Muschinski v Dodds
[1985] HCA 78 Para 1

…er established that the plaintiff has acted to his or her detriment on the basis of that agreement or common intention.[30] [29] Muschinski v Dodds (1985) 160 CLR 583, 615-616 (‘ Muschinski ’); Shepherd v Doolan [2005] NSWSC 42 at [30] (‘ Shepherd ’). [30] Shepherd [2005] NSWSC 42 at [31]; Iman Ali Islamic Centre v I…
Calverley v Green
[1984] HCA 81

…ater when the relationship had broken down. Far safer, is a scrutiny of the conduct of the parties at the relevant time: see Currie v Hamilton [1984] 1 NSWLR 687 at 691. This is not to confuse the distinction drawn by Glass JA in Allen v Snyder between an unarticulated but actual intent (upon which the law wil…
[1971] AC 886
[1971] AC 886 Para 1

…by the players, that is, the intention which their words and conduct would reasonably convey to an objective bystander.[41] [41] Gissing v Gissing [1971] AC 886, 906; Byrnes v Kendle (2011) 243 CLR 253, 263 (French CJ), 274–7 (Gummow and Hayne JJ), 289–90 (Heydon and Callinan JJ).…

Legislation cited in this decision · 4

Civil Proceedings Act 2011 (Qld)
58 2 mentions
Evidence Act 1977 (Qld)
92 2 mentions (from Para 1)
Property Law Act 1974 (Qld)
11 2 mentions (from Para 1)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld)
1 mention

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 406 Byrnes 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 42
COUNSEL:	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