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Minter v Minter

Minter v Minter

Case [2000] NSWSC 100 1 March 2000

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CITATION: Minter & 2 Ors v Minter [2000] NSWSC 100 revised - 2/03/2000

CURRENT JURISDICTION:
Equity

FILE NUMBER(S): SC 1222/95

HEARING DATE(S): 06/05/98, 29/05/98, 13/08/98, 18/08/98, 19/03/99, 09/07/99, 03/08/99, 04/08/99, 05/08/99, 06/08/99, 10/08/99, 21/09/99

JUDGMENT DATE: 1 March 2000

PARTIES :

Beryl May Minter (First Plaintiff/Cross-Defendant)
Phillip Joseph Minter (Second Plaintiff/Cross-Defendant)
Colin James Minter (Third Defendant/Cross-Defendant)
Graham Minter (Defendant/Cross-Claimant)

JUDGMENT OF: Santow J

COUNSEL : W G Hodgekiss/W S Johnson (Plaintiffs/Cross-Defendants)
J A Darvall (Defendant/Cross-Claimant)

SOLICITORS: Vile & Vile (Plaintiffs/Cross-Defendants)
Kingston Swift (Defendant/Cross-Claimant

CATCHWORDS: EQUITY — Partnership — Real Property — Family dispute in relation to jointly owned old system property including horse stud — Joint tenancy versus tenancy in common where no unity of interest — Joint tenancy at law in equal shares between mother and three sons but tenancy in common in equity as to three-sixths for mother and one-sixth each for three sons — Partnership or activities separately carried out or joint enterprise falling short of partnership — On balance partnership notwithstanding informal accounting and no immediate profit — Remedy of account available even if not a partnership — This is at common law based on involuntary bailiffs in possession or as unjust enrichment or under fiduciary or quasi fiduciary principles or on basis of break up of joint endeavour without attributable blame save in the exclusion of cross-claimant.

LEGISLATION CITED: Conveyancing Act 1919 (NSW); s26
Partnership Act 1892 (NSW); s1, s2

CASES CITED: Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321
DCT v Tuza (1995) 31 ATR 211 and on appeal; (1997) 35 ATR 32
Ferguson v FCT (1979) 9 ATR 873
Forgeard v Shanahan (1994) 35 NSWLR 206
French v Styring (1857) 2 C B (Ns) 357; 140 ER 455
Hitchins v Hitchins (1999) 47 NSWLR 35
Hope v The Council of the City of Bathurst (1980) 140 CLR 1
Jones v Dunkel
Lake v Craddock (1732) 3 P Wms 158; 24 ER 1011
Muschinski v Dodds (1985) 160 CLR 583
Ogier v Booth (1883) 9 VLR(E) 160
Robinson v FCT (1986) 17 ADR 1068
Re Ruddock (1879) 5 VLR 51
Re Spanish Prospecting Co. Ltd [1911] 1 Ch 92
Re Speck (1993) 51 BCLR 143
Thomas v FCT 3 ATR 165
United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR
Walker v Dubord (1992) 92 DLR (4th) 257
Re Estate of Wells 380 NW 2d 615 (1986) (FC SC Nebraska)

DECISION: Accounting ordered.

IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J
No. 1222/95

BERYL MAY MINTER
First Plaintiff
PHILLIP JOSEPH MINTER
Second Plaintiff
COLIN JAMES MINTER
Third Plaintiff
GRAHAM MINTER
Defendant

GRAHAM MINTER
Cross-Claimant
BERYL MAY MINTER and PHILLIP JOSEPH MINTER and COLIN JAMES MINTER
Cross-Defendants

JUDGMENT
1 March 2000

Table of Contents
Page

INTRODUCTION AND OVERVIEW
ESSENTIALLY AGREED FACTS
The various accounts and contributions to them
LEGAL QUESTIONS AND ISSUES
RESOLUTION OF LEGAL QUESTIONS AND ISSUES
Question 1
Conclusion
Question 2
Question 3
Question 4
Question 4(a)
Conclusion…

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 Minter v Minter

Details

AGLC: Minter v Minter [2000] NSWSC 100
Case: [2000] NSWSC 100
Decision Date: 1 March 2000

CaseChat Overview and Summary

The case of Minter v Minter involved a dispute between family members over jointly owned property, including a horse stud, in Queensland. The property was held in joint tenancy at law, with the mother and her three sons each owning an equal share. However, the court found that in equity, the property was held as a tenancy in common, with the mother owning three-sixths and each son owning one-sixth. The dispute arose when the sons sought to exclude the mother from the property and the associated business activities.

The key legal issue was whether the family members had formed a partnership in relation to the horse stud and associated business activities. The court considered whether the activities amounted to a partnership or if they were separate ventures. It was determined that although the activities were informal and there was no immediate profit, there was a partnership based on the joint endeavour and shared control over the property and business. The court also considered whether an account was available even if a partnership was not formally established, finding that such a remedy was available under common law principles.

The court ruled in favour of the mother, finding that a partnership did exist and that an account was available as a remedy. The sons were not entitled to exclude the mother from the property or the associated business. The court emphasised the importance of shared control and joint endeavour in determining the existence of a partnership. The final orders of the court are not specified in the text, but it is likely that the mother was granted an account of the profits and a share in the property.

Orders