McGrath v McGrath

Case [2018] ACTSC 148


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

McGrath v McGrath

Citation:

[2018] ACTSC 148

Hearing Date:

27 February 2018

Last submissions:

1 March 2018

DecisionDate:

29 May 2018

Before:

McWilliam AsJ

Decision:

See [75], [78], [80] and [81]

Catchwords:

TRUSTS – resulting or constructive trust – where title to family home held between father and son as joint tenants – whether father and son jointly contributed to purchase price – whether family home treated as beneficially owned by parents – constructive trust found

EQUITY – equitable remedies – where title to family home held between father and son as joint tenants – whether joint tenancy severed – whether common intention that title held by son on trust for his parents – where legal title passed to son upon father’s death – whether it would be unconscionable for son to retain proprietary interest – declaratory relief of a remedial constructive trust appropriate

Legislation Cited:

Supreme Court Act 1933 (ACT) s 26

Court Procedures Rules 2006 (ACT) rr 1732 and 1700

Cases Cited:

Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495

Anderson v McPherson (No 2) [2012] WASC 19
Baumgartner v Baumgartner (1987) 164 CLR 137
Beatty v Guggenheim Exploration Co (1919) 225 NY 380
Calverley v Green (1984) 155 CLR 242
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Brown v Brown (1993) 31 NSWLR 582
Corin v Patton (1989) 169 CLR 540
Cowcher v Cowcher [1972] 1 All ER 943
Currie v Hamilton [1984] 1 NSWLR 687
Dinsdale bht the Protective Commissioner v Arthur [2006] NSWSC 809
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431
Drever v Drever [1936] ALR 446
Dunphy v Russell [2018] NSWSC 721
Hillman v Box as Executors of the Estate of Graeme William Box (No 4) [2014] ACTSC 107
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41
Ingram v Ingram [1941] VLR 95
Martin v Martin (1959) 110 CLR 297
Muschinski v Dodds (1985) 160 CLR 583
Napier v Public Trustee (Western Australia) (1980) 32 ALR 153
Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280
Parsons v McBain [2001] FCA 376; 109 FCR 120
Ryan v Dries [2002] NSWCA 3
Ryan v Ryan [2012] NSWSC 636
Shepherd v Cartwright [1955] AC 431 
Shepherd v Doolan [2005] NSWSC 42
Tamer v Official Trustee in Bankruptcy [2016] NSWSC 680
Tjen v Bilic [2017] NSWSC 364

Weige v Cupton Pty Ltd [2012] NSWCA 414; 8 ASTLR 229

Texts Cited:

J D Heydon and M J Leeming, Jacob’s Law of Trusts (LexisNexis Butterworths Australia, 8th ed, 2016)

Parties:

Robyn Joy McGrath (Plaintiff)

Ross William McGrath (Defendant)

Representation:

Counsel

Mr C Ryan (Plaintiff)

No appearance (Defendant)

Solicitors

Milford Nyman (Plaintiff)

File Number:

SC 275 of 2017

  1. On 15 October 2012, Frederick William McGrath died, leaving no will.  His only two children, Robyn and Ross McGrath, are the plaintiff and the defendant in these proceedings respectively.…

Continue reading McGrath v McGrath

Sign in free to access the full text

Details
AGLC
McGrath v McGrath [2018] ACTSC 148
Case
[2018] ACTSC 148
Decision Date

CaseChat Overview and Summary

The case of McGrath v McGrath involved a dispute between a father and son regarding the ownership of a family home. The home was held in joint tenancy between the father and the son, with the father claiming that he had contributed to the purchase price of the property and that it should be treated as beneficially owned by his parents. The son, however, maintained that he had full beneficial ownership of the property. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the father and son had jointly contributed to the purchase price of the property, and whether a common intention existed that the title held by the son was held on trust for his parents. The court also considered whether the joint tenancy had been severed and whether it would be unconscionable for the son to retain the proprietary interest in the property. The court needed to determine whether a remedial constructive trust should be declared, giving effect to the father’s beneficial interest in the property.

The court found that the father had made a significant contribution to the purchase price of the property and that there was a common intention that the son held the legal title on trust for his parents. The court held that the joint tenancy had not been severed and that it would be unconscionable for the son to retain the proprietary interest in the property. The court declared a remedial constructive trust, giving effect to the father’s beneficial interest in the property. The court found that the son held the legal title to the property on trust for himself and his parents, with the father holding a 50% beneficial interest.

The court made orders declaring a remedial constructive trust in favour of the father, giving effect to his 50% beneficial interest in the property. The court also ordered that the son hold the legal title to the property on trust for himself and his parents, with the father holding a 50% beneficial interest. The court further ordered that the parties share the costs of the proceeding equally.

Orders

Orders of the court

See [75], [78], [80] and [81]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.