Leaver v Leaver

[2022] QDC 149

DISTRICT COURT OF QUEENSLAND

CITATION:

Leaver v Leaver [2022] QDC 149

PARTIES:

NEAL THOMAS LEAVER AND ELLEN MARGARET LEAVER

(plaintiffs)

v
CORY THOMAS LEAVER AND DIANA EMILY LEAVER

(defendant)

FILE NO/S:

3142/20

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

28 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 – 24 February 2022

JUDGES:

Jarro DCJ

ORDER:

1.   There is judgment for the plaintiffs. 

2.   Within 21 days of these reasons, the parties are to provide written submissions regarding orders and/or declarations consistent with findings that:

a.   When Station Road was purchased in 1994:

  i.   the plaintiffs paid the deposit;

  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 per cent 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.

3.   Within 21 days of these reasons, the parties are to provide written submissions as to costs.

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – UNCONSCIONABLE CONDUCT – CONSTRUCTIVE TRUSTS – where the plaintiffs and defendants operated a family business – where the family business paid for family members mortgages - where the plaintiffs paid a deposit of $40,000 for the property, and the balance to be funded by mortgage taken in the name of the defendants - where the defendants are the registered proprietors of the property – where it was alleged the plaintiffs contributed to the conservation and improvement of the property – where the defendants denied the plaintiffs an interest in the property - whether plaintiffs have beneficial ownership of property – whether it would be unconscionable to deny the plaintiff a beneficial interest in the property – whether a constructive trust should be imposed over the property

EQUITY – EQUITABLE DEFENCES – LACHES or ACQUIESCENCE – whether defence of laches or acquiescence is established - whether the plaintiffs delayed in bringing their claims to the disadvantage of the defendants

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. This matter involving once close family members requires the determination of the extent to which the plaintiffs have, if any, beneficial ownership of certain land registered in the names of the defendants.  The plaintiffs, Neal and Ellen Leaver, seek a declaration that their son Cory Leaver and daughter-in-law Diana Leaver hold land located at 132 Station Road, Deagon (“Station Road”) on trust for them.  

2. Station Road was purchased in March 1994 from a third party.  Cory and Diana Leaver are the registered proprietors.  Neal and Ellen Leaver have lived there since then. 

3. Neal and Ellen claim that at the time of the Station Road purchase, it was the common intention of the parties that:

   (a)Station Road would be purchased in…