Little v Saunders - [2004] NSWSC 655

CITATION: Little v Saunders [2004] NSWSC 655

HEARING DATE(S): 16 July 2004

JUDGMENT DATE:
16 July 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Trusts not established. Entitlement to indemnity costs not established.

CATCHWORDS: TRUSTS - purchase by de facto couple of house, with unequal contributions of purchase price - whether presumption of resulting trust rebutted - whether constructive trust arises - PROCEDURE - costs - whether indemnity costs order to be made on basis of "offer of compromise" or Calderbank letter (no question of principle)

LEGISLATION CITED: Real Property Act 1900

CASES CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060
Calverley v Green (1984) 155 CLR 242
Muschinski v Dodds (1985) 160 CLR 583
Tickell v Trefleska Pty Ltd (1990) 25 NSWLR 353

PARTIES :
Timothy Ross Little - First Plaintiff
Ronald Garry Dennehy - Second Plaintiff
Shane Edward Saunders - Defendant

FILE NUMBER(S): SC 1976/04

COUNSEL: S Philips - Plaintiff
M Lawson - Defendant

SOLICITORS: Boyd House & Partners - Plaintiff
Stacks/Northern Rivers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 16 JULY 2004

1976/04 TIMOTHY ROSS LITTLE AS EXECUTOR OF THE ESTATE OF THE LATE SUSAN KATHLEEN BENSON & ANOR v SHANE EDWARD SAUNDERS

JUDGMENT – Ex Tempore (Revised 21 July 2004)

1 HIS HONOUR: This is a claim which is brought by the executors of the estate of the late Susan Kathleen Benson. Ms Benson was the registered proprietor as joint tenant with Shane Saunders, the defendant in this case, of a property located at 3 McAllisters Road, Bilambil Heights, which is on the north coast. The plaintiffs’ claim is that the property is held on trust for the plaintiffs as executors, for a proportion equal to the proportion of the purchase price which Ms Benson provided.

2 Ms Benson and Mr Saunders first met in around May of 2001. By August of 2001 they were discussing living together and purchasing a house together. They inspected various properties, including the property at Bilambil Heights which they ultimately bought. In September of 2001, they travelled to the United States together, and this trip marked the beginning of them living together.

3 Upon their return, they continued arrangements for buying a house together. Mr Saunders delegated to Ms Benson most of the work related to both finding a property, and also carrying through the conveyancing formalities.

4 Mr Paul Sande of Realty Conveyancing Services, is a licensed conveyancer. Ms Benson and Mr Saunders decided to deal with him in connection with their purchase. Ms Benson had dealt with Mr Sande concerning the purchase of a home unit at Currumbin, some years before, and had also dealt with Mr Sande concerning the subsequent sale of that home unit.

5 On 12 October 2001 Mr Sande’s firm sent to Ms Benson and Mr Saunders a document which was a pro-forma set of instructions for Mr Sande’s firm to…

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 Little v Saunders

Details

AGLC: Little v Saunders [2004] NSWSC 655
Case: [2004] NSWSC 655
Decision Date: 16 July 2004

CaseChat Overview and Summary

Little and Saunders were a de facto couple who purchased a house with unequal contributions towards the purchase price. The dispute arose as to whether the presumption of a resulting trust could be rebutted and whether a constructive trust arose. The court was required to determine these legal issues. The court held that the presumption of a resulting trust was not rebutted and that a constructive trust did not arise. The court based its reasoning on the evidence presented and the applicable legal principles. The court also considered the issue of costs, determining that an indemnity costs order should not be made on the basis of an offer of compromise or a Calderbank letter. The final orders of the court were that the presumption of a resulting trust was not rebutted and that a constructive trust did not arise. The court also ordered that no indemnity costs order should be made on the basis of an offer of compromise or a Calderbank letter.

Orders