Merker & Ors v Merker & Anor

In the case of Merker & Ors v Merker & Anor, the plaintiffs sought to establish a common intention constructive trust over a property, alleging that their parents had obtained a loan to purchase a half-share in 1985 and that the plaintiffs had subsequently repaid the loan. The plaintiffs further argued that the land was transferred to one of the children in 2014 with knowledge of this constructive trust. The defendants, including one of the children, opposed the claims on various grounds, including the in personam exception to indefeasibility, the inapplicability of equitable compensation, and the lack of a proprietary estoppel claim. The defendants also challenged the plaintiffs' amendments to their statement of claim and argued that the claims were barred by limitation periods and laches.

The primary legal issues before the court were whether the plaintiffs' common intention constructive trust claim could succeed, whether the defendants' transfer of the land was a knowing receipt of trust property, and whether the plaintiffs' delay in bringing the claims prejudiced the defendants. The court also considered whether the plaintiffs' amendments to their statement of claim should be disallowed and whether the claims were barred by limitation periods and laches.

The court found that the plaintiffs' common intention constructive trust claim failed because there was no evidence of a common intention that the plaintiffs would gain a proprietary interest in the land. The bequest to Arnold in Verona's 2005 Will, which was inconsistent with the alleged common intention, suggested that the arrangement was more likely a loan than a contribution towards a shared interest in the property. The court also found that the common law in personam exception to indefeasibility did not assist the plaintiffs in relation to the first limb of Barnes v Addy. Furthermore, the court held that the plaintiffs' claim for equitable compensation was not viable because registration defeated their proprietary interest. The court rejected the plaintiffs' proprietary estoppel claim, finding that the defendants were not trustees or fiduciaries and that the plaintiffs' expectation of ownership was based on their mother's representation, not the defendants'. The court further held that the plaintiffs' amendments to their statement of claim did not change the factual and legal basis of their case and that the delay in bringing the claims did not prejudice the defendants.

The court dismissed the defendants' application to disallow the plaintiffs' amendments to their statement of claim. However, the court granted summary judgment in favour of the defendants on the plaintiffs' claims for a common intention constructive trust and proprietary estoppel. The court found that the plaintiffs had no real prospect of succeeding on these claims and that there was no need for a trial. The court ordered that judgment be entered in favour of the defendants against the plaintiffs on the specified paragraphs of the prayer for relief in the amended statement of claim.