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McEvoy v McEvoy

McEvoy v McEvoy

Case [2012] NSWSC 1494 14 December 2012

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Supreme Court

New South Wales

Medium Neutral Citation: McEvoy v McEvoy [2012] NSWSC 1494
Hearing dates: 3 and 4 December 2012
Decision date: 14 December 2012
Jurisdiction: Equity Division - Expedition List
Before: Pembroke J
Decision:
See paragraphs [45] and [46]

Catchwords: TRUSTS AND TRUSTEES - oral trust of land - principles for determining existence of trust - whole of circumstances - subsequent conduct
GIFT - conditional - equitable personal obligation
CONTRACT - family relationship - no contractual intention
Legislation Cited: Conveyancing Act 1919
Limitation Act 1969
Cases Cited: Ashton v Pratt (No 2) [2012] NSWSC 3
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liquidation) [2000] HCA 25; (2000) 202 CLR 588
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Conway v Critchley [2012] NSWSC 1405
Evans v Evans [2011] NSWCA 92
Flinn v Flinn [1999] VSCA 134; [1999] 3 VR 712
Galaxidis v Galaxidis [2004] NSWCA 111
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72
Jennings v Rice [2002] EWCA Civ 159
Khoury v Khouri [2006] NSWCA 184; (2006) 66 NSWLR 241
Owens v Lofthouse [2007] FCA 1968
Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation [1993] HCA 2; (1993) 178 CLR 145
Reitano v Reitano [2012] NSWSC 1127
Rochefocault v Boustead [1897] 1 Ch 196
Stillisano v Adami [2010] SASC 35
Strang v Strang [2009] NSWSC 760
Sundarjee Bros (Aust) Pty Ltd v Sundarjee Bros (HK) Pty Ltd (in liq) [2004] NSWSC 1158
Vinden v Vinden [1982] 1 NSWLR 618
Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560
Texts Cited: Heydon and Leeming, Jacobs' Law of Trusts in Australia, 7th ed (2006)
Category: Principal judgment
Parties: Aidan McEvoy - first plaintiff
Natahl Cara Liane McEvoy - second plaintiff
Mary McEvoy - defendant
Representation: Counsel:
J J T Loofs - for the plaintiffs
Henry Packham (Solicitor) - for the defendant
Solicitors:
Smallwoods Lawyers - for the first and second plaintiffs
Henry Packham - for the defendant

File Number(s): 2012/174694 2012/120713

Judgment

Introduction

The underlying issue in this case is the entitlement of the plaintiffs to a half interest in a property at Jamberoo. The plaintiffs and their children have lived there since 1999. They have improved and maintained the property and made substantial contributions to the cost of ownership. It was purchased in 1999 by the first plaintiff's father (Bill McEvoy) who was the initial registered proprietor. When his marriage broke up in 2003, he transferred the title to his former wife, the defendant. She now refuses to acknowledge that the plaintiffs (her son and daughter-in-law) have any interest in the property whatsoever. She has sought to have them removed.

In 2011, when Bill McEvoy became aware that the defendant was seeking to remove the plaintiffs from the property, he signed a written statement describing the actions of the defendant (his former wife) as "breaching the family…

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 McEvoy v McEvoy

Details

AGLC: McEvoy v McEvoy [2012] NSWSC 1494
Case: [2012] NSWSC 1494
Decision Date: 14 December 2012

CaseChat Overview and Summary

The parties to the case were McEvoy and McEvoy, and the nature of the dispute was over whether an oral trust existed over certain land. The court involved was the Supreme Court of New South Wales. The legal issues that the court was required to decide included whether an oral trust of land existed, the principles for determining the existence of such a trust, and the relevance of subsequent conduct. The court also considered whether there was a conditional gift creating an equitable personal obligation, and whether there was a contractual intention between the parties in their family relationship.

The court determined that an oral trust of land can exist and is assessed based on the whole of circumstances and subsequent conduct. The court held that the onus of proof lies on the party asserting the trust. The court found that there was no evidence of a clear and unequivocal statement by the deceased to the claimant that a trust was intended, nor was there any subsequent conduct by the claimant that could be interpreted as acting in reliance on the alleged trust. The court also found that there was no conditional gift creating an equitable personal obligation, as there was no evidence of a clear and unequivocal statement by the deceased to the claimant that a gift was intended, nor was there any evidence of consideration. The court held that there was no contractual intention between the parties in their family relationship, as family relationships are not typically associated with contractual intention.

The court found in favour of the defendant, dismissing the claim for an oral trust of land, conditional gift, and contractual intention. The court made no orders for costs. The decision highlights the importance of clear and unequivocal statements in creating trusts and gifts, and the need for evidence of reliance and consideration in establishing equitable obligations. The decision also reinforces the distinction between family relationships and contractual intention.

Orders