Miner and Gilchrist and Anor - [2008] FamCA 917

FAMILY COURT OF AUSTRALIA

MINER & GILCHRIST AND ANOR

[2008] FamCA 917

FAMILY LAW – PROPERTY – Transfer of proceedings from Supreme Court of New South Wales – Jurisdiction to hear the claim not contested - Whether a constructive trust – Equitable tracing

Family Law Act 1975 (Cth)

Barnes v Addy (1874) LR 9 Ch App 244
Brandy v Stapleton (1952) 88 CLR 322
Commonwealth Bank of Australia v Saleh [2007] NSWSC 903
Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Foskett v McKeown [2001] 1 AC 102
James Roscoe (Bolton) Ltd v Winder [1915] 1 Ch 62
Kak Loui Chan v Zacharia (1984) 154 CLR 178
Muschinski v Dodds [1986] 160 CLR 583
Re Diplock [1948] Ch 465
Re Hallett’s Estate; Knatchbull v Hallett (1880) 13 Ch D 696
Re Oatway [1903] 2 Ch 356
Re Tilley’s Will Trusts; Burgin v Croad [1967] Ch 1179; [1967] 2 All ER 303; [1967] 2 WLR 1533

PLAINTIFF:

Mr Miner

1^st RESPONDENT:

Mr Gilchrist

2^nd RESPONDENT:

Mrs Gilchrist

FILE NUMBER:

PAF

856

2005

DATE DELIVERED:

3 October 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

15-16 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maiden SC

SOLICITOR FOR THE APPLICANT:

Williamson Solicitors

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE 1^ST RESPONDENT:

Watson Stafford

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Schroeder

SOLICITOR FOR THE 2^ND RESPONDENT:

Matthews Dooley & Gibson

Orders

A declaration that the husband held a one half interest in the property situated at M upon trust for Mr Miner from no later than the last day of December 1997 until the sale of the property on 15 August 2003. Thereafter the husband held the sum of $334,078 upon trust for Mr Miner.
A declaration that the husband and wife (and each of them) held the proceeds of $277,651 from the sale of the M property upon trust for Mr Miner.
A declaration that the husband and the wife are indebted to Mr Miner in the sum of $277,651 together with interest calculated under the Civil Procedure Act 2005 (NSW) from 15 August 2005 until judgment.
A declaration that the husband is indebted to Mr Miner in the additional sum of $56,427 together with interest calculated under the Civil Procedure Act 2005 (NSW) from 15 August 2005 until judgment.
In partial satisfaction of their liability to Mr Miner the parties cause the amount standing to their credit in the controlled money account held by the wife’s solicitors, Matthews Dooley & Gibson, and being the balance of the proceeds of sale of the property at B to be paid forthwith to Mr Miner.
The Court notes that the plaintiff Mr Miner subject to the question of costs which he is yet to consider does not propose to pursue the parties for any further money which may be…

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.

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Details

Case: [2008] FamCA 917
Decision Date: 3 October 2008

CaseChat Overview and Summary

In the matter of *Miner and Gilchrist and Anor*, Justice Le Poer Trench considered a dispute concerning beneficial interests in property and the resulting proceeds of sale. Mr Miner sought declarations that the husband held a half interest in a property at M upon trust for him, and that the husband and wife held the proceeds of sale of that property upon trust for him.

The court was required to determine the nature of the beneficial ownership of the property at M and the extent to which the husband and wife were indebted to Mr Miner for the proceeds derived from its sale. Further, the court needed to address the disposition of funds held in a controlled money account representing the balance of proceeds from the sale of another property at B, and the outstanding liabilities of the husband and wife to Mr Miner.

Justice Le Poer Trench declared that the husband held a one-half interest in the M property on trust for Mr Miner from late 1997 until its sale in August 2003, and thereafter held $334,078 on trust for Mr Miner. The court further declared that the husband and wife held $277,651 from the sale of the M property on trust for Mr Miner, and that they were jointly and severally indebted to Mr Miner for this sum, plus interest. Additionally, the husband was declared indebted to Mr Miner for a further $56,427, plus interest. In partial satisfaction of these liabilities, the husband and wife were ordered to pay the balance of the proceeds from the sale of the B property, held in a controlled money account, to Mr Miner. The court noted Mr Miner's intention not to pursue further recovery after this payment, subject to costs. Finally, proceedings between the husband and wife under section 79 of the *Family Law Act 1975* (Cth) were listed for further mention.

Orders

Orders of the court

A declaration that the husband held a one half interest in the property situated at M upon trust for Mr Miner from no later than the last day of December 1997 until the sale of the property on 15 August 2003. Thereafter the husband held the sum of $334,078 upon trust for Mr Miner.

A declaration that the husband and wife (and each of them) held the proceeds of $277,651 from the sale of the M property upon trust for Mr Miner.

A declaration that the husband and the wife are indebted to Mr Miner in the sum of $277,651 together with interest calculated under the Civil Procedure Act 2005 (NSW) from 15 August 2005 until judgment.

A declaration that the husband is indebted to Mr Miner in the additional sum of $56,427 together with interest calculated under the Civil Procedure Act 2005 (NSW) from 15 August 2005 until judgment.

In partial satisfaction of their liability to Mr Miner the parties cause the amount standing to their credit in the controlled money account held by the wife’s solicitors, Matthews Dooley & Gibson, and being the balance of the proceeds of sale of the property at B to be paid forthwith to Mr Miner.

The Court notes that the plaintiff Mr Miner subject to the question of costs which he is yet to consider does not propose to pursue the parties for any further money which may be owing to him after payment of the funds currently held by the parties in the controlled money account being the remaining proceeds from the sale of the B property.

The proceedings between the husband and the wife under section 79 of the Family Law Act 1975 (Cth) be listed for further mention before me at a time arranged by the legal representatives for the husband and the wife with my Associate.

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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