SUPREME COURT OF QUEENSLAND
CITATION:
King & Anor v Fister & Anor [2022] QCA 47
PARTIES:
ANDREW ROBERT KING
JODI LEANE KING
(appellants/cross-respondents)
v
KAREN AMANDA FISTER
(first respondent/first cross-appellant)
CHRISTOPHER ROBERT HALL
(second respondent/second cross-appellant)FILE NO/S:
Appeal No 595 of 2021
DC No 14 of 2018DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
District Court of Queensland at Cairns – [2020] QDC 333 (Fantin DCJ)
DELIVERED ON:
5 April 2022
DELIVERED AT:
Brisbane
HEARING DATE:
10 May 2021
JUDGES:
Sofronoff P and Mazza AJA and Davis J
ORDERS:
1. Allow the appeal against the dismissal of the equitable damages claim.
2. Award equitable damages in favour of the appellants against the respondents calculated as the difference between the entitlement of the respondents ($20,370.80) and the sum they received ($37,821.08) being $17,450.28 with interest as calculated under s 58 of the Civil Proceedings Act2011 and Practice Direction 7 of 2013 from the date of sale of the property to the date of judgment on the appeal.
3. Dismiss the cross appeal.
4. Allow the appeal against the costs order.
5. Order the respondents to pay the appellants’ costs of the proceedings including the appeal and cross-appeal on the standard basis.
CATCHWORDS:
EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – COMMON INTENTION – ACTING TO DETRIMENT – where the parties formed a venture – where the respondents would purchase a house and borrow most of the money to effect the purchase – where the appellants would contribute to the purchase price – where the appellants would pay the payments due on the mortgage – where the appellants would pay outgoings and maintenance on the house – where the appellants would acquire a loan to pay out the existing mortgage and take a transfer of the title – where the respondents made further withdrawals on the loan account – where the venture failed – where the house was sold – whether the proceeds of sale were held pursuant to a constructive trust – where the trial judge found both a common intention constructive trust and a joint endeavour constructive trust – whether the respondents had to account for the further withdrawals – where the trial judge found that case not proved – where the appellants appealed against the dismissal of their claim concerning the redraws – where the respondents cross-appealed against the finding that the sale proceeds were held on constructive trust for the appellants – whether a common intention constructive trust was proved – whether a joint endeavour constructive trust was proved – whether account should be taken of the redraws – whether apportionment was required
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, followed
Clancy v Salienta Pty Ltd [2000] NSWCA 248, cited
Giumelli v Giumelli (1996) 196 CLR 101; [1999] HCA 10, followed
Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413, followed
Munro v Munro [2018] VSC…
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- AGLC
- King v Fister [2022] QCA 47
- Case
- [2022] QCA 47
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether a common intention constructive trust and a joint endeavour constructive trust were established, and whether the respondents had to account for the further withdrawals from the loan account. The court needed to determine if the trial judge's findings were correct and if the respondents should be ordered to pay equitable damages to the appellants.
The court found that the trial judge was correct in establishing a common intention constructive trust and a joint endeavour constructive trust. The court held that the respondents had to account for the further withdrawals from the loan account, as they were not entitled to those funds. The court also found that the respondents had received more than their entitlement from the sale proceeds, and therefore, the appellants were entitled to equitable damages. The court dismissed the respondents' cross-appeal and ordered them to pay the appellants' costs of the proceedings.
The court's final orders were to allow the appeal against the dismissal of the equitable damages claim, award equitable damages in favour of the appellants against the respondents, dismiss the cross-appeal, allow the appeal against the costs order, and order the respondents to pay the appellants' costs of the proceedings including the appeal and cross-appeal on the standard basis.
Orders
Orders of the court
1. Allow the appeal against the dismissal of the equitable damages claim.
2. Award equitable damages in favour of the appellants against the respondents calculated as the difference between the entitlement of the respondents ($20,370.80) and the sum they received ($37,821.08) being $17,450.28 with interest as calculated under s 58 of the Civil Proceedings Act 2011 and Practice Direction 7 of 2013 from the date of sale of the property to the date of judgment on the appeal.
3. Dismiss the cross appeal.
4. Allow the appeal against the costs order.
5. Order the respondents to pay the appellants’ costs of the proceedings including the appeal and cross-appeal on the standard basis.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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