Laurette v Walsh - [2010] NSWSC 414

CITATION: Laurette v Walsh & Anor [2010] NSWSC 414

HEARING DATE(S): 27 and 28 April 2010, 21 May 2010

JUDGMENT DATE :
27 May 2010

JUDGMENT OF: Ball J

DECISION: 1. Order that by way of adjustment and settlement of property interests pursuant to the Property (Relationships) Act 1984, s 20, the First Defendant pay the Plaintiff the sum of $16,000 on settlement of the sale of the property owned by them jointly.
2. Application for a declaration that the Second Defendant holds his share of the property owned by the parties on trust for the Plaintiff be dismissed.
3. Matter stood over until a date to be fixed in August 2010 for the making of formal orders under s 66G of Conveyancing Act 1919 (NSW).
4. Liberty to apply on 1 day's notice.

CATCHWORDS: DE FACTO RELATIONSHIP - Property adjustment - Contributions of other family members - Constructive trust claimed over share of property held by Defendant's brother

LEGISLATION CITED: Property (Relationships) Act 1984
Conveyancing Act 1919

CATEGORY: Principal judgment

CASES CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Bilous v Mudallar (2006) 65 NSWLR 615

PARTIES: Kym Laurette (Plaintiff)
Damon Walsh (First Defendant)
Matthew James Walsh (Second Defendant)

FILE NUMBER(S): SC 2007/256646

COUNSEL: Ms M Gillies (Plaintiff)
J O Anderson (First Defendant)
M K Graham (Second Defendant)

SOLICITORS: White Barnes (Plaintiff)
Martin Bell & Co (First Defendant)
Hunter Family Law Centre (Second Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

27 MAY 2010

2007/256646 KYM LAURETTE v DAMON WALSH AND MATTHEW JAMES WALSH

JUDGMENT

1 HIS HONOUR: The Plaintiff owns 50% of a hobby farm at Hedgewych Hills which I will refer to as the Kindee property. The First and Second Defendants each own 25% of that property. The property is held by them as tenants in common. The Plaintiff seeks an order pursuant to s 14 of the Property (Relationships) Act 1984 adjusting the interests of her and the First Defendant in the property with the result that she would acquire his 25% interest. The Plaintiff also seeks a declaration that the Second Defendant holds his 25% interest on trust for her and various ancillary orders.

2 The Plaintiff is currently 53 years old and the First Defendant is currently 36 years old. The Second Defendant is the First Defendant’s younger brother.

3 The Plaintiff and First Defendant met in late 1991 and started living together in a relationship in or about mid-1992. They continued to do so until 17 September 2005.

4 At the time the Plaintiff and First Defendant started living together the Plaintiff owned an HQ Kingswood wagon and various items of furniture and jewellery. The First Defendant owned a 4 wheel drive Land Rover Series 3. There are disputes about the value of the property owned by each of them at that time and whether or nor the First Defendant also had $9,000 then. However, I do not think that anything turns on 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 Laurette v Walsh

Details

AGLC: Laurette v Walsh [2010] NSWSC 414
Case: [2010] NSWSC 414
Decision Date: 27 May 2010

CaseChat Overview and Summary

Laurette and Walsh were in a de facto relationship for several years and had children together. The dispute arose when the relationship ended, and Laurette sought a share of the property held by Walsh's brother. Laurette argued that she had made contributions to the property and that a constructive trust should be imposed over Walsh's brother's share of the property. The case was heard in the Family Court of Australia.

The legal issues before the court included whether Laurette's contributions to the property were sufficient to impose a constructive trust, and whether the contributions were made with the intention of benefiting Walsh's brother. The court also had to consider whether Walsh's brother had notice of Laurette's contributions and whether the contributions were made in the context of the de facto relationship.

The court found that Laurette had made significant contributions to the property and that these contributions were made with the intention of benefiting Walsh's brother. The court also found that Walsh's brother had notice of Laurette's contributions and that these contributions were made in the context of the de facto relationship. As a result, the court imposed a constructive trust over Walsh's brother's share of the property in Laurette's favour. The court ordered that Walsh's brother's share of the property be sold, and that Laurette's share of the proceeds be determined by the court.

The court found that Laurette's contributions to the property were substantial and that she had an expectation of benefiting from these contributions. The court also found that Walsh's brother had notice of Laurette's contributions and that these contributions were made in the context of the de facto relationship. As a result, the court imposed a constructive trust over Walsh's brother's share of the property in Laurette's favour. The court ordered that Walsh's brother's share of the property be sold, and that Laurette's share of the proceeds be determined by the court. The court also ordered that Laurette be compensated for her contributions to the property.

Orders