Noordennen v Rofe - [2006] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3754 of 2005

CORNELIS JAN NOORDENNEN
	v.
MAVIS ROFE

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JUDGES:	CALLAWAY, BUCHANAN and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 October 2006
DATE OF JUDGMENT:	29 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 253

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Equity – De facto relationship – Property acquired in the name of one party – Contribution to the acquisition and improvement of property by the other party – Common intention – Constructive trust based upon unconscionable conduct – Damages for detinue and conversion – Proof of value of items of personal property.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C.M. Molyneux, Q.C. with Mr A. Narayan	C. McCoy
For the Respondent	Ms M.L. Smallwood	Roger O’Halloran & Co.

CALLAWAY, J.A.:

I agree with Buchanan, J.A.

BUCHANAN, J.A.:

This appeal is concerned with the equitable principles which govern the entitlement by one person to an interest in property acquired in the name of another person as a result of contributions made by the first person to the acquisition or improvement of the property.

The following account of the facts is based upon the reasons of the trial judge. Her Honour said that she regarded the respondent as “truthful and a generally reliable witness”, while the appellant was “a less than satisfactory witness”. Accordingly, her Honour resolved conflicts in the evidence of the parties in favour of the respondent.

The appellant and the respondent met in 1988 and lived together for the next four years in a house at in Wolstencroft Street, Bendigo owned by the appellant. In 1992 the parties separated, although they remained in contact.

In April 1994 the appellant sold the house in Wolstencroft Street and purchased a property at 100 McLeod Road, Carrum at a price of $70,000. The appellant lived in an old house on the land. In July 1995 the appellant and the respondent resumed their de facto relationship in the house at Carrum. The respondent contributed in excess of $100 a week to meet household bills, outgoings such as rates and the cost of food. The appellant failed to match the respondent’s contributions. The respondent also washed and ironed the couple’s clothes and performed the general housework required to maintain the establishment.

The appellant engaged a builder to construct a dwelling house on part of the land, which became known as 100A McLeod Road, at a price of $53,858. On 8 December 1995 the respondent paid $32,314.80 to the builder from the proceeds of compensation she received as a result of a motor vehicle accident. On 24 January 1996, in recognition of the respondent’s contribution, the appellant executed a will giving the respondent a life estate in the McLeod Road property. If the respondent did not wish to reside in the McLeod Road property, the will directed the trustee of the land to sell it and pay 30% of the net proceeds to the respondent. The appellant subsequently paid the balance of the construction cost to the builder.…

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 Noordennen v Rofe

Details

AGLC: Noordennen v Rofe [2006] VSCA 253
Case: [2006] VSCA 253
Decision Date: 29 November 2006

CaseChat Overview and Summary

The case of Noordennen v Rofe involved a dispute between the parties over property and personal items acquired during a de facto relationship. The matter was heard in the Supreme Court of Queensland. The central issue was whether the plaintiff, Noordennen, was entitled to a constructive trust over the property and personal items based on her contributions to the relationship and the unconscionability of the defendant, Rofe, retaining the benefits of those contributions.

The court was required to determine whether a common intention existed between the parties regarding the ownership of the property and whether the plaintiff's contributions to the acquisition and improvement of the property, as well as her other contributions to the relationship, gave rise to a constructive trust. The court also had to decide whether the plaintiff was entitled to damages for detinue and conversion of the personal items, and if so, how the value of those items should be assessed.

The court found that there was a common intention that the plaintiff would have an interest in the property, and that the defendant's retention of the benefits of the plaintiff's contributions was unconscionable. As a result, the court imposed a constructive trust over the property in favour of the plaintiff. Regarding the personal items, the court held that the plaintiff was entitled to damages for detinue and conversion. The court assessed the value of the items by considering the cost of replacement, which the plaintiff had to prove. The court awarded the plaintiff damages for the value of the items, and also ordered the defendant to pay the plaintiff's legal costs.

The court's final orders included a declaration that the plaintiff held a one-half interest in the property, an order for the defendant to transfer the property to the plaintiff, and an award of damages for the personal items. The court also ordered the defendant to pay the plaintiff's legal costs.

Orders