Leaver v Leaver

[2023] QDC 179

DISTRICT COURT OF QUEENSLAND

CITATION:

Leaver v Leaver [2023] QDC 179

PARTIES:

NEAL THOMAS LEAVER & ELLEN MARGARET LEAVER

(plaintiffs)

v

CORY THOMAS LEAVER & DIANA EMILY LEAVER

(defendants)

FILE NO/S:

3142/20

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGES:

Jarro DCJ

ORDERS:

1.   It is declared that:

a.   The defendants hold 24.24 percent of their interest in land situated at Lots 225 and 226 on Registered Plan 29244, Title Reference 11514085 (“the land”) on a resulting trust for the plaintiffs.

b.   The plaintiffs have an equitable charge over the land in the amount of $65,000.

2.   The defendants pay the plaintiffs’ costs of and incidental to the proceeding, including any reserve costs, on the standard basis.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – RESULTING TRUSTS – EQUITABLE CHARGE – where the plaintiffs’ interest in the defendants’ property is held on resulting trust – where the plaintiffs have an equitable charge over the property – whether a constructive trust for a life interest in the property arises in favour of the plaintiffs – where the defendants submit the relief sought by the plaintiffs was not pleaded in the plaintiffs’ claim

PROCEDURE – COSTS – POWERS OF THE COURT – where the plaintiffs seek standard costs against the defendants – where the defendants seek standard costs against the plaintiffs – whether the plaintiffs or the defendants have been the substantially successful party

LEGISLATION:

Property Law Act 1974 (Qld) s 11, s 24, s 25
Uniform Civil Procedure Rules 1999 (Qld) s 156, s 658

CASES: 

Mark Bain Constructions Pty Ltd v Barnscape Pty Ltd [2012] QCA 100
Vision Eye Institute Ltd v Kitchen [2014] QSC 260

COUNSEL:

WDJ Macintosh for the plaintiffs

NJ Shaw for the defendants

SOLICITORS:

Robinson Locke Litigation Lawyers for the plaintiffs
Biggs Fitzgerald Pike for the defendants

1. On 28 June 2022, I delivered reasons in this matter (“the Reasons”) and directed the parties to confer in respect of the consequential orders and/or declarations.[1]  The parties were to provide submissions regarding orders and/or declarations consistent with the Reasons.  Among other findings, I found that:

   (a)When Station Road[2] was purchased in 1994:

   (i)the plaintiffs paid the deposit; and

   (ii)the parties agreed that the plaintiffs would live in the house indefinitely and it was never intended that they pay rent.

   (b)The defendants hold 24.24 percent of their interest in Station Road on resulting trust for the plaintiffs, calculated by their contribution being the deposit ($40,000) against the purchase price ($165,000).

   (c)Reflective of the renovations, the plaintiffs have an equitable charge over Station Road in the amount of $65,000.

   [1][2022] QDC 149.

   [2]More specifically described as land situated at Lots 225 and 226 on Registered Plan 29244, Title Reference 11514085.

2. The time for the filing of submissions was extended a number of times because the parties were willing to work towards an amicable resolution of the orders and/or declarations.  However, they have not been able to do…