McGregor v Nicol - [2003] NSWSC 332

CITATION: McGregor v Nicol [2003] NSWSC 332

HEARING DATE(S): 3 and 4 April 2003

JUDGMENT DATE:
23 April 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Davies AJ at 1

DECISION: Paragraph 39.

CATCHWORDS: EQUITY - resulting trust - no general presumption of advancement between siblings - siblings provided purchase moneys - another sibling lived in property - whether presumption of resulting trust rebutted

LEGISLATION CITED: Evidence Act 1995, s72
Family Provision Act 1982

CASES CITED: Calverley v Green (1984) 155 CLR 242
Napier v Public Trustee (Western Australia) (1980) 32 ALR 153
Noack v Noack [1959] VR 137
Wirth v Wirth (1956) 98 CLR 228

PARTIES :
Sandra June McGregor (First Plaintiff/Cross Defendant)
Colleen Leslie Lenton (Second Plaintiff/Cross Defendant)
Leanne Nicol (Defendant/Cross Claimant)

FILE NUMBER(S): SC 4106/02

COUNSEL: Mrs D Coulton (Plaintiffs/Cross Defendants)
Mr B Antcliffe (Defendant/ Cross-Claimant)

SOLICITORS: Vizzone Ruggero & Associates (Plaintiffs/Cross Defendants)
T.H. Drake & Associates (Defendant/Cross Claimant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

DAVIES AJ

WEDNESDAY 23 APRIL 2003

4106/02 SANDRA JUNE MCGREGOR & ANOR V LEANNE NICOL

REASONS

1 The plaintiffs, Sandra June McGregor and Colleen Leslie Lenton, are the registered proprietors of a block of land at San Remo on which a house has been erected. The defendant was the de facto partner of the plaintiffs’ brother Robert, and is now the administratrix of his estate. Robert and the defendant occupied the property prior to his death and the defendant has remained in possession.

2 The plaintiffs seek an order for possession of the premises. The defendant seeks, inter alia, a declaration that the plaintiffs hold the legal title in trust for Robert’s estate and a declaration that Robert’s estate is entitled to the whole of the beneficial interest in the property.

3 As the principles of resulting trust are well established, it is sufficient for me to cite the words of Gibbs CJ in Calverley v Green (1984) 155 CLR 242 at 246, where His Honour said:

Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship, presumed to be a resulting trust in favour of the other or others. For the presumption to…

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 McGregor v Nicol

Details

AGLC: McGregor v Nicol [2003] NSWSC 332
Case: [2003] NSWSC 332
Decision Date: 23 April 2003

CaseChat Overview and Summary

The case of McGregor v Nicol involved siblings who inherited a property from their parents. The siblings, McGregor and Nicol, had contributed to the purchase of the property, but Nicol had resided in the house for some time. The siblings disagreed over the nature of the ownership interest in the property and the matter was brought before the court. The central legal issue was whether a resulting trust was applicable to the property and if so, whether the presumption of a resulting trust had been rebutted. The court needed to determine whether the contributions made by the siblings to the purchase price of the property gave rise to a resulting trust and if so, whether this presumption was rebutted by Nicol’s occupation of the property.

The court examined the legal principles surrounding resulting trusts and the absence of a general presumption of advancement between siblings. It found that the contributions made by the siblings to the purchase price of the property did indeed give rise to a resulting trust. However, the court held that the presumption of a resulting trust was rebutted by the fact that Nicol had lived in the property. The court determined that Nicol's occupation of the property provided evidence of an intention to benefit Nicol personally, rather than holding the property on trust for the other siblings. The court found that Nicol's occupation was sufficient to rebut the presumption of a resulting trust, and thus the property was held on trust for Nicol.

The court's decision was based on the specific circumstances of the case and the evidence presented regarding the contributions made by the siblings and Nicol’s occupation of the property. The court held that the presumption of a resulting trust was rebutted by Nicol’s occupation of the property, and accordingly, Nicol held the property on trust for herself. The court did not find it necessary to consider the broader principle of advancement between siblings as the specific circumstances of the case provided sufficient evidence to resolve the matter. The court's decision was grounded in the specific contributions made and the occupation of the property, which together rebutted the presumption of a resulting trust in favour of Nicol.

Orders