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Murtagh v Murtagh

Murtagh v Murtagh

Case [2013] NSWSC 926 12 July 2013

Contributions to Purchase Price

Property Law

Trusts & Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Murtagh v Murtagh [2013] NSWSC 926
Hearing dates: 11, 12 June 2013
Decision date: 12 July 2013
Jurisdiction: Equity Division
Before: Hallen J
Decision:
The parties to bring in Short Minutes of Order to reflect the reasons for the decision and the calculations for the amount to constitute the charge, in favour of the Defendant, on the Plaintiff's share of the proceeds of sale of the Clovelly unit.

Catchwords:
REAL PROPERTY - Co-ownership by siblings - application for appointment of statutory trustee for sale - adjustment of interests - Contributions made.

EQUITY - Trusts - resulting trust - presumption of resulting trust based on contributions to purchase price - no presumption of advancement - presumption of resulting trust rebutted where parties have agreed on beneficial interest at time of purchase - whether any agreement - joint mortgagors - effect of substantial contribution to mortgage repayment - Whether beneficial interests according to contributions
EQUITY - Trusts - constructive trust - application to family relationship - Whether party adequately compensated by a right to contribution and equitable charge.
Legislation Cited: Conveyancing Act 1919
Fair Trading Act 1987
Real Property Act 1900
Trade Practices Act 1974
Cases Cited: Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060; (2012) 12 BPR 22,421
Callow v Rupchev [2009] NSWCA 148
Calverley v Green [1984] HCA 81; (1984) 155 CLR 242
Cetojevic v Cetejovic [2006] NSWSC 431
Cummins (a bankrupt), Trustees of the Property of v Cummins [2006] HCA 6; (2006) 227 CLR 278
Currie v Hamilton (1984) 1 NSWLR 687
Harbour Port Consulting v NSW Maritime [2011] NSWSC 813
Ingram v Ingram [1941] VLR 95; [1941] VicLawRp 20
Little v Little (1985) 15 NSWLR 43
Ly v Ly [2012] NSWSC 643; (2012) 16 BPR 31,649
McKay v McKay [2008] NSWSC 177
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
Neilson v Letch (No 2) [2006] NSWCA 254
Payne v Rowe [2012] NSWSC 685
Pennimpede v Pennimpede [2010] NSWCA 121
Pennimpede v Pennimpede [2009] NSWSC 85
Russell v Russell [1924] A.C. 687
Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497
Ryan v Ryan [2012] NSWSC 636
Silvester v Sands [2004] WASC 266
Warner v Hung; Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No. 2), Re [2011] FCA 1123; (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
Texts Cited: 'Truth and the Law', Chief Justice J Spigelman (Speech delivered at the 2011 Sir Maurice Byers Lecture, 26 May 2011)
Category: Principal judgment
Parties: Therese Carmel Murtagh (Plaintiff)
Michael Kevin Murtagh (Defendant)
Representation: Counsel:
Ms D Reid (Plaintiff)
Mr J Sleight (Defendant)
Solicitors:
M. Duncan & Associates Lawyers (Plaintiff)
Neville & Hourn Legal (Defendant)

File Number(s): 2012/207816

Judgment

Introduction - The Claims

HIS HONOUR: This litigation involves an unfortunate dispute between siblings, who, as the folio identifier records,…

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 Murtagh v Murtagh

Details

AGLC: Murtagh v Murtagh [2013] NSWSC 926
Case: [2013] NSWSC 926
Decision Date: 12 July 2013

CaseChat Overview and Summary

In the case of Murtagh v Murtagh, the applicants, siblings, sought to have a statutory trustee appointed for the sale of a property that was co-owned between them. The dispute involved the adjustment of their respective interests in the property, with a particular focus on the contributions made towards its purchase and maintenance. The matter was heard and determined in the Supreme Court of Queensland.

The primary legal issues before the court were whether a presumption of resulting trust arose based on the contributions made to the purchase price, and if so, whether this presumption could be rebutted by an agreement between the parties regarding their beneficial interests. Additionally, the court had to consider whether the substantial contribution by one party to the mortgage repayments affected the equitable distribution of the property and whether a constructive trust was applicable due to the family relationship.

The court found that while there was a presumption of a resulting trust based on the contributions to the purchase price, this presumption was rebutted by the agreement between the parties at the time of purchase regarding their beneficial interests. The court also determined that the substantial contribution to the mortgage repayments did not alter the equitable distribution of the property. Consequently, the court held that the applicants were entitled to have their beneficial interests adjusted according to their respective contributions, and a constructive trust was not applicable in this context.

The court ordered that a statutory trustee be appointed for the sale of the property, and the proceeds from the sale be distributed to the applicants according to their adjusted beneficial interests, as determined by their contributions. The court also noted that any further claims for compensation would need to be addressed through other legal avenues.

Orders