Maher v Maher - [2020] NSWSC 844

Supreme Court

New South Wales

Medium Neutral Citation: Maher v Maher [2020] NSWSC 844
Hearing dates: 29 and 30 June 2020
Date of orders: 30 June 2020
Decision date: 30 June 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [59]

Catchwords:
EQUITY – trusts and trustees – express trust – interest in property – family arrangement with plaintiff’s in-laws to live with them in property to be purchased by them – no intention to create immediate legally enforceable commitment or interest
EQUITY – trusts and trustees – constructive trusts – common intention – no contribution to acquisition of property
ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – no contribution to property – no evidence of financial detriment – plaintiff and her family lived on property at subsidised rate and received a reasonable income from working in the family business

Legislation Cited:
Conveyancing Act 1919 (NSW), s 23C

Cases Cited:
Baumgartner v Baumgartner (1987) 164 CLR 137
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Muschinski v Dodds (1985)160 CLR 583
Norman v Federal Commissioner of Taxation (1963) 109 CLR 9
Peldan v Anderson (2006) 227 CLR 471

Category: Principal judgment
Parties: Victoria Maher (Plaintiff)
Josephine Maher (First Defendant)
Robray Debeaking Pty Ltd (Second Defendant)
Representation:
Counsel:
D Allen (Plaintiff)
F Maghami (First and Second Defendant)
Solicitors:
Mitry Lawyers (Plaintiff)
Branston Neville Lawyers (First and Second Defendant)

File Number(s): 2017/140780
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript; issued 2 July 2020

This is a family dispute concerning a property at Greendale in outer western Sydney. For convenience, and without disrespect, I will refer to the members of the family by their given names.
The property is a 40 hectare (100 acre) semi-rural property. It was bought in September 1988 by Robert Gordon Maher and Josephine Carmela Therese Maher, his wife. I will refer to Robert Gordon Maher as “Bob” Maher, to distinguish him from his son, Robert Jnr.
Bob died in December 2017 and ownership of the entire property has now passed by survivorship to Josephine. Bob and Josephine had two sons, Robert George Maher, to whom I will refer as “Robert”, and Raymond Gregory (“Ray”) Maher. Both married and had children of their own. Robert's wife was Victoria. Ray's wife was (and is) Kelly.
The family members conducted a business providing chicken debeaking and immunisation services to poultry farmers. At all relevant times this business was conducted through a company called Robray Debeaking Pty Ltd (“Robray”). After the Greendale property was purchased, the business was operated from that location.
Following the purchase of the Greendale land, two houses were built on it. Eventually all three couples (Bob and Josephine; Robert and Victoria; and Ray and Kelly) came to live in the two houses. Except for a short period at the beginning, Ray and Kelly lived in one house and Bob, Josephine, Robert and Victoria lived in the other.
The three couples appear to have lived happily on the property in this way…

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 Maher v Maher

Details

AGLC: Maher v Maher [2020] NSWSC 844
Case: [2020] NSWSC 844
Decision Date: 30 June 2020

CaseChat Overview and Summary

In the case of Maher v Maher, the plaintiff sought to enforce a family arrangement for her and her children to live in a property to be purchased by her in-laws. The dispute centred on whether the family arrangement constituted an express trust, a constructive trust, or a proprietary estoppel. The parties involved were Maher and his wife, who owned a property, and the plaintiff and her children, who resided on the property. The court had to determine the nature of the plaintiff's interest in the property and whether it was enforceable.

The central legal issues were whether the family arrangement constituted an express trust, a constructive trust, or a proprietary estoppel. An express trust would require an intention to create a legally enforceable interest, a constructive trust would require a common intention and a contribution to the acquisition of the property, and proprietary estoppel would require encouragement, detrimental reliance, and an absence of financial detriment. The court had to examine the evidence and the intentions of the parties to determine which, if any, of these legal principles applied.

The court found that there was no intention to create an express trust or a legally enforceable interest in the property. There was also no evidence of a common intention or contribution to the acquisition of the property, which would give rise to a constructive trust. Furthermore, the court found that there was no proprietary estoppel as the plaintiff had not suffered any financial detriment and had lived on the property at a subsidised rate while earning a reasonable income from working in the family business. The court held that the family arrangement was a mere agreement and did not give rise to any legally enforceable interest in the property.

The final orders of the court were that the plaintiff's claim for an express trust, a constructive trust, and proprietary estoppel were dismissed. The court found that the plaintiff had no legal interest in the property and that the family arrangement was not enforceable. The court held that the plaintiff and her children had no legal right to remain on the property and that the defendants were entitled to possession.

Orders