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 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 |
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.…
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- McGrath v McGrath [2018] ACTSC 148
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- [2018] ACTSC 148
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CaseChat Overview and Summary
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
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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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