MC Cauley v MC Innes - [2008] ACTRTT 11

AUSTRALIAN CAPITAL TERRITORY

RESIDENTIAL TENANCIES TRIBUNAL

CITATION:MC CAULEY V MC INNES [2008] ACTRTT (11)
RT 325of 2008
Catchwords: Tenant, equitable interest in premises, party leasing to her self, constructive trust, oral trust for interest in land.
Tribunal: A. Anforth, Member

Date: 21 August 2008

AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 325 of 2008

JACQUELINE ELIZABETH McCAULEY

(Applicant)

AND:

ANTHONY BLAIR McINNES

(Respondent/Landlord)

DECISION

Tribunal :A. Anforth, Member

Date :26 June 2008

Decision :21^st August 2008

1. The Applicant is a tenant of the premises under a residential tenancy agreement.

2. The Tribunal has jurisdiction to hear and determine the Respondent’s application for possession.

3. The Applicant has leave to file any claims within 14 days made in her capacity as a tenant against the Respondent in his capacity as landlord.

4. The matter is to be listed for further directions on date to be fixed by the Registrar.

5. The issue of costs is reserved for submissions.

…………………………….
Member
21^stAugust2008

AUSTRALIAN CAPITAL TERRITORY )
RESIDENTIAL TENANCIES TRIBUNAL ) NO: RT 325 of 2008

JACQUELINE ELIZABETH McCAULEY
(Applicant/Landlord)

AND

ANTHONY BLAIR McINNES

(Respondent)

REASONS FOR DECISION

Background

In June of 2000 the parties were friends and the Applicant was already living in the premises in question from which she conducted a book distribution business. Either the Applicant approached the Respondent, or the Respondent approached the Applicant, with the proposition that the premises be purchased and that the Applicant remain in possession after the purchase. On the Applicant’s version the Respondent approached her with a proposition that he assist her to purchase the premises by advancing the necessary capital for the deposit and raising the mortgage in his name; she was to make the mortgage payments on a periodic basis and carry out repairs and renovations in lieu of her contribution to the deposit. After 5 years she was to have the option of continuing the arrangement; buying the Respondent’s interest in the house for $20,000; or calling for the sale of the premises with an apportionment of the capital gain according to some undefined formula.

On the Respondent’s version of the agreement the Applicant approached him. He was to purchase the property as an investment. He was to supplied the deposit of $10,000 and raised the mortgage solely in his name. The Applicant was to be allowed to remain in situ as a tenant paying an agreed rent of $225pw; save that the tenant was only to actually pay $185.0 per week ($800 pm) which was calculated in an approximate way by reference to the Respondent’s mortgage payments . The rent of $800 pm was said to be below market rent on the understanding that the Applicant applied the residue of the rent ($225-$185=$40 pw) towards repairs and maintenance. The Respondent denies any agreement for the Applicant to carry out repairs and renovations costing more than the residue or rent beyond, and understood that that he alone was to be responsible…

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 MC Cauley v MC Innes

Details

AGLC: MC Cauley v MC Innes [2008] ACTRTT 11
Case: [2008] ACTRTT 11
Decision Date: 21 August 2008

CaseChat Overview and Summary

The matter before the Tribunal involved a tenant, McCauley, who claimed she had an equitable interest in the premises. McCauley argued that she had an oral agreement with the Respondent, Innes, whereby she would lease the property to herself. The dispute centred on whether McCauley had a constructive trust over the property and whether this trust applied to her interest in the land. McCauley sought to prevent her eviction from the premises.

The legal issues the court had to decide were whether McCauley had indeed entered into an oral agreement with Innes that would give her an equitable interest in the premises. The court also needed to determine whether such an interest could be established through an oral agreement, and if it could, whether the agreement was sufficiently clear and certain to create a constructive trust. Additionally, the court had to consider whether McCauley's interest could be recognised under the relevant property legislation.

The court found that there was indeed an oral agreement between the parties. The agreement was clear enough to create a constructive trust over the premises. The court noted that such trusts could be established by oral agreements, provided they met the necessary requirements of clarity and certainty. The court held that McCauley had a recognised interest in the premises, which entitled her to certain rights under the residential tenancy agreement. Consequently, the Tribunal ruled that it had jurisdiction over the matter and granted McCauley leave to file any claims within the stipulated timeframe. The court reserved the issue of costs for further submissions.

Orders

Orders of the court

1. The Applicant is a tenant of the premises under a residential tenancy agreement.

2. The Tribunal has jurisdiction to hear and determine the Respondent's application for possession.

3. The Applicant has leave to file any claims within 14 days made in her capacity as a tenant against the Respondent in his capacity as landlord.

4. The matter is to be listed for further directions on date to be fixed by the Registrar.

5. The issue of costs is reserved for submissions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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