JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17 March 2017
DATE OF JUDGMENT:	10 August 2018
CASE MAY BE CITED AS:	Miller v Martin & ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 444

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REAL PROPERTY ― Co-ownership of land ― Statutory application for sale of co-owned land and division of proceeds ― Determination of nature and extent of co-ownership ― Formation of non-commercial but profit making partnership between co owners as friends ― Purchase of beach house as leisure asset ― Co-owners registered as tenants in common in equal shares ― Whether interest of two owners held on resulting trust for third co-owner ― Money to purchase land originated from third co-owner being in charge of partnership affairs ― Dispute over identifying source of money ― Whether presumption of resulting trust in favour of third owner was rebutted by intention to treat source money as partnership funds and intention for land to be beneficially owned by all three co-owners ― Objective evidence and admissions of intention ― Finding by Victorian Civil and Administrative Tribunal that presumption of resulting trust rebutted and no other basis for construing a trust ― Appeal from finding dismissed ― Appeal allowed residually on Tribunal’s omission to consider statutory claim for sale and adjustment of interests according to payment of certain expenses ― Property Law Act 1958 (Vic) (No 6344), ss 225, 228, 233.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendants	Mr D G Collins QC with Mr R Squirrel	GE Law Services Pty Ltd (formerly Goddard Elliott & Co)

HIS HONOUR:

Two or more persons may concurrently own and be entitled to possession and enjoyment of one piece of land. The two typical forms of co-ownership are the tenancy in common in which each co-owner has a proportionate interest in the land, and, the joint tenancy in which each co-owner has a right shared with the others to the whole of the land.

Disputes may arise between co-owners about their interest in the land or its extent, typically following a breakdown of a personal relationship or a venture that was the basis of the acquisition in the first place, and the bringing into account moneys or outgoings that were paid or payable in owning the land. In that situation, a co‑owner may request the Victorian Civil and Administrative Tribunal under s 225 of the Property Law Act of Victoria (‘the Act’) to order a sale of the land and the division of the sale proceeds amongst the co‑owners, or, to order a physical division of the land amongst them, or, to order a combination of both. All co-owners are party to such a proceeding. The Tribunal is given the power under s 228(1) of the…

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 Miller v Martin

Details

AGLC: Miller v Martin [2018] VSC 444
Case: [2018] VSC 444
Decision Date: 10 August 2018

CaseChat Overview and Summary

Miller v Martin involved a dispute between co-owners of a beach house over the nature and extent of their co-ownership. The matter was before the Court of Appeal of the Supreme Court of Victoria. The initial decision had been made by the Victorian Civil and Administrative Tribunal (VCAT), which found that the presumption of a resulting trust in favour of one of the co-owners was rebutted by the intention to treat the source of the purchase money as partnership funds and the intention for the land to be beneficially owned by all three co-owners. Miller and another person appealed the VCAT decision, and Martin cross-appealed, arguing that the Tribunal had omitted to consider a statutory claim for sale and adjustment of interests according to payment of certain expenses.

The legal issues in the case focused on the nature of the co-ownership and whether the property was held on a resulting trust for one of the co-owners. The Court had to determine whether the presumption of a resulting trust in favour of the third co-owner was rebutted by the intention to treat the source of the purchase money as partnership funds and the intention for the land to be beneficially owned by all three co-owners. The Court also had to consider whether the VCAT had failed to address a statutory claim for sale and adjustment of interests according to payment of certain expenses under the Property Law Act 1958 (Vic).

The Court of Appeal found that the presumption of a resulting trust in favour of the third co-owner was indeed rebutted by the intention to treat the source of the purchase money as partnership funds and the intention for the land to be beneficially owned by all three co-owners. The Court held that there was sufficient objective evidence and admissions of intention to support this conclusion. However, the Court also found that the VCAT had omitted to consider a statutory claim for sale and adjustment of interests according to payment of certain expenses under the Property Law Act 1958 (Vic). The Court allowed the appeal residually on this basis and remitted the matter back to the VCAT for further consideration.

The final orders of the Court of Appeal were that the appeal was dismissed in relation to the rebutting of the presumption of a resulting trust, but allowed residually on the Tribunal’s omission to consider the statutory claim for sale and adjustment of interests according to payment of certain expenses. The matter was remitted back to the VCAT for further consideration in light of these findings.

Orders