SUPREME COURT OF QUEENSLAND
CITATION:
Merker & Ors v Merker & Anor [2022] QCA 277
PARTIES:
TERRY DESMOND MERKER
(first appellant)
CAROLYN VERONA HASEMANN
(second appellant)
VALERIE DAWN MERKER
(third appellant)
GREGORY WAYNE MERKER
(fourth appellant)
v
MARILYN PATRICIA MERKER
(first respondent)
THE ESTATE OF ARNOLD RONALD MERKER (DECEASED)
(second respondent)FILE NO/S:
Appeal No 14574 of 2021
SC No 13095 of 2020DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane – [2021] QSC 285 (Dalton J)DELIVERED ON:
23 December 2022
DELIVERED AT:
Brisbane
HEARING DATE:
20 May 2022
JUDGES:
McMurdo and Bond JJA and Kelly J
ORDERS:
1. Appeal be allowed.
2. The orders made on 9 November 2021, whereby the respondents were given judgment against the appellants on paragraphs 1 and 3 of the prayer for relief in the amended statement of claim and the appellants were ordered to pay four fifths of the respondents’ costs on the summary judgment application, be set aside.
3. The respondents pay the appellants’ costs of the summary judgment application and the costs of the appeal, including those resulting from the notice of contention.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENTS: STAY OR DISMISSAL OF PROCEEDINGS – where, in the Trial Division, the respondents (then defendants) applied for summary judgment under r 293 of the Uniform Civil Procedure Rules – where the respondents were successful at first instance – whether the statement of claim and the evidence presented an arguable case which should be permitted to go to trial
EQUITY – EQUITABLE REMEDIES – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – COMMON INTENTION – where the appellants and the second respondent were siblings (“the siblings”) – where the siblings’ parents obtained a loan to purchase a half-share in property – where the siblings agreed to repay the loan by monthly repayments on the basis that each sibling would acquire an equal interest in the property – where the parents transferred the property to the second respondent for natural love and affection – where the second respondent transferred the property to himself and to the first respondent, his wife – where, upon the second respondent’s death the first respondent became registered owner of the property – where the appellants contend that they have an equitable interest in the property or a portion of the property pursuant to a common intention constructive trust – whether there is evidence to support the existence of a common intention constructive trust – whether the case for a common intention constructive trust should go to trial
EQUITY – EQUITABLE REMEDIES – TRUSTS AND TRUSTEES – CONSTRUCTIVE TRUSTS – OTHER PARTICULAR CASES – where the appellants and the second respondent were siblings – where the siblings’ parents obtained a loan to purchase a half-share in property – where the siblings agreed to repay the loan by monthly repayments on the basis that…
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- AGLC
- Merker v Merker [2022] QCA 277
- Case
- [2022] QCA 277
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the appellants had presented an arguable case that should proceed to trial, despite the respondents' application for summary judgment. This involved examining the evidence to see if it supported the existence of a common intention constructive trust, a joint endeavour constructive trust, or an equity arising from the act of the registered proprietor that would negate the indefeasibility of the first respondent's title. The court had to consider whether there was sufficient evidence to support each of these claims and whether the case should be allowed to proceed to trial.
The court concluded that the appellants had presented an arguable case on each of the claims, and thus the summary judgment application should be dismissed. The evidence was deemed sufficient to support the existence of a common intention constructive trust, a joint endeavour constructive trust, and an equity arising from the act of the registered proprietor. The court found that the appellants had demonstrated that there was a common intention that they would acquire equal interests in the property, that there was a joint endeavour to repay the loan, and that the first respondent had participated in the joint endeavour. The court determined that these matters should be explored further at trial.
The court ordered that the appeal be allowed, the previous orders granting summary judgment to the respondents be set aside, and the respondents pay the appellants' costs of the summary judgment application and the costs of the appeal. This decision meant that the case would proceed to trial, allowing the appellants the opportunity to further establish their claims in relation to the property.
Orders
Orders of the court
1. Appeal be allowed.
2. The orders made on 9 November 2021, whereby the respondents were given judgment against the appellants on paragraphs 1 and 3 of the prayer for relief in the amended statement of claim and the appellants were ordered to pay four fifths of the respondents’ costs on the summary judgment application, be set aside.
3. The respondents pay the appellants’ costs of the summary judgment application and the costs of the appeal, including those resulting from the notice of contention.
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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