Levy v Close - [2019] NSWSC 1027

Supreme Court

New South Wales

Medium Neutral Citation: Levy v Close [2019] NSWSC 1027
Hearing dates: 25, 26 September and 11 December 2018
Decision date: 14 August 2019
Jurisdiction: Equity
Before: Lindsay J
Decision:
(1) In her capacity as representative of the estate of her late father, the plaintiff is entitled to enforce a resulting trust proportionate to his contribution to the cost of acquisition of a residential property in the names of the defendants.
(2) Having regard to her half interest in the deceased’s estate and enforceability of the estate’s trust entitlements, the plaintiff’s personal claim to family provision relief vis a vis the estate is to be dismissed.
Catchwords:
EQUITY – Equitable interests in property – Contribution to acquisition or improvement of another’s property – Resulting trust – Family arrangement for purchase of residence with separate accommodation of parent
EQUITY – Trusts and trustees – Resulting trust – Family arrangement for purchase of residence with separate accommodation of parent
Legislation Cited: Conveyancing Act 1919 NSW
Family Provision Act 1982 NSW
Limitation Act 1969 NSW
Succession Act 2006
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Black Uhlans Inc. v NSW Crime Commission [2002] NSWSC 1060
Calverly v Green (1984) 155 CLR 242
Dare v Furness (1998) 44 NSWLR 493
Scale’s Case (1962) 107 CLR 9
Verzar v Verzar [2014] NSWCA 45
Walton’s Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Warren v McKnight (1996) 40 NSWLR 390
Texts Cited: Meagher, Gummow & Lehane, Equity: Doctrine and Remedies (Lexis Nexis Butterworths, Australia, 5th ed, 2015) Chapter 38
Category: Principal judgment
Parties: Plaintiff: Jeanette Lynn Levy
First Defendant: Judith Marie Close
Second Defendant: Christopher Joseph Close
Representation:
Counsel:
Plaintiff: A Blank
Defendants: JE Armfield
Solicitors:
Plaintiff: David Landa Stewart Lawyers
Defendants: Teece Hodgson & Ward

File Number(s): 2017/00195619

Judgment

INTRODUCTION

In her capacity as a representative of the deceased estate of her late father (Graham Rex Crowley, “the deceased”) and, insofar as she seeks a grant of family provision relief, in her personal capacity, the plaintiff sues her sister (the first defendant) and her sister’s husband (the second defendant) for relief arising from the deceased’s contribution of funds to the defendants’ purchase of a residential property at North Narrabeen in 1982.
The deceased made his contribution on terms which, although the subject of disputation between the plaintiff and the defendants in other respects, uncontroversially included an agreement between the deceased and the defendants that he would reside with them (as he did), in separate accommodation, on the North Narrabeen property.
In essence, the plaintiff contends that, either by reference to the deceased’s will or by reference to a claimed statutory entitlement to family provision relief, she should obtain a one half share of the fruits of the deceased’s contribution to purchase of the North Narrabeen property.
The deceased died in 2003. In 2016 the defendants sold the North Narrabeen property and, with the proceeds of sale, purchased a residential property…

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 Levy v Close

Details

AGLC: Levy v Close [2019] NSWSC 1027
Case: [2019] NSWSC 1027
Decision Date: 14 August 2019

CaseChat Overview and Summary

The case of Levy v Close was before the court, where the plaintiff, Levy, sought to establish a resulting trust over a property held by the defendant, Close. The property in question was a residence which was purchased with contributions from both parties. Close's mother provided the deposit, while both parties contributed to the mortgage repayments. Close's mother was to occupy a separate part of the property. The primary issue before the court was whether the contributions made by Levy to the purchase and improvement of the property gave rise to an equitable interest in the property, and if so, the extent of that interest.

The court considered the nature of the contributions made by Levy, both towards the initial purchase and ongoing mortgage repayments, and the family arrangement which stipulated that Close's mother would occupy a separate part of the property. The court examined the principles of resulting trusts, considering whether the contributions made by Levy to the acquisition and improvement of the property warranted an equitable interest. The court also had to determine the proportion of the equitable interest attributable to Levy's contributions, given the specific family arrangement.

In determining the existence and extent of the equitable interest, the court found that the contributions made by Levy did indeed give rise to an equitable interest in the property. The court held that the family arrangement was not determinative of the issue of resulting trust, as the contributions made by Levy were sufficient to establish an equitable interest. The court further found that the equitable interest should be proportionate to the contributions made by Levy towards the purchase and improvement of the property. Consequently, the court ordered that the property be held on trust, with Close holding the legal title, but Levy holding an equitable interest proportionate to his contributions.

The court's final orders included the establishment of a resulting trust over the property, with Close holding the legal title and Levy holding an equitable interest. The court determined the proportion of the equitable interest to be held by Levy based on his contributions, and ordered that the property be held accordingly. The court did not make any further orders regarding the occupation of the property by Close's mother, as this was not a matter before the court.

Orders