Nowland v Nowland

Case [2020] QSC 151

SUPREME COURT OF QUEENSLAND

CITATION:

Nowland v Nowland [2020] QSC 151

PARTIES:

LINDSAY TERRENCE NOWLAND

 (applicant)

v
CYNTHIA FRANCES NOWLAND

 (respondent)

FILE NO/S:

BS No 12374 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 and 30 January 2020

JUDGE:

Ryan J

ORDERS:

1.   The application is dismissed.

2.   The matter is adjourned until Friday, 5 June 2020, for submissions as to the distribution of the monies in court and costs.

CATCHWORDS:

ESTOPPEL – ESTOPPEL BY CONDUCT – PROPRIETARY ESTOPPEL – GENERAL PRINCIPLES – UNCONSCIONABLE CONDUCT – where the application concerns the breakdown of an informal partnership between a mother (respondent) and her son (applicant) to run cattle on two properties – where one of those properties was owned by the parties as tenants in common in seven-eighths (respondent) and one-eighth (applicant) shares – where the applicant claims an equitable interest in the property greater than his one-eighth interest as a tenant in common – whether an assurance was made upon which a claim for proprietary estoppel can be founded

EQUITY – EQUITABLE REMEDIES – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – COMMON INTENTION – where the application concerns the breakdown of an informal partnership between a mother (respondent) and her son (applicant) to run cattle on two properties – where one of those properties was owned by the parties as tenants in common in seven-eighths (respondent) and one-eighth (applicant) shares – where the applicant claims an equitable interest in the property greater than his one-eighth interest as a tenant in common – whether the parties had an actual or inferred common intention in relation to the beneficial ownership of property, upon which the applicant acted to his detriment

EQUITY – EQUITABLE REMEDIES – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – JOINT ENDEAVOUR - UNCONSCIONABLE RETENTION OF BENEFIT – where the application concerns the breakdown of an informal partnership between a mother (respondent) and her son (applicant) to run cattle on two properties – where one of those properties was owned by the parties as tenants in common in seven-eighths (respondent) and one-eighth (applicant) shares – where the applicant claims an equitable interest in the property greater than his one-eighth interest as a tenant in common – whether the applicant made contributions to the gaining, improvement or retention of property for a joint purpose – whether there was a joint venture – whether the joint venture ended without attributable blame – whether it would be unconscionable for the respondent to assert that the applicant had no entitlement at all to the property beyond his share as tenant in common

EQUITY – EQUITABLE REMEDIES – GENERAL PRINCIPLES – where the application concerns the breakdown of an informal partnership between a mother (respondent) and her son (applicant) to run cattle on two properties – where the applicant claims an equitable interest in the net proceeds of sale of the cattle above…

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Nowland v Nowland [2020] QSC 151
Case
[2020] QSC 151
Decision Date

CaseChat Overview and Summary

Nowland v Nowland involved the breakdown of an informal partnership between a mother (respondent) and her son (applicant) to run cattle on two properties. The applicant claimed an equitable interest in the property greater than his one-eighth interest as a tenant in common. The central legal issues were whether an assurance was made upon which a claim for proprietary estoppel could be founded, whether the parties had an actual or inferred common intention in relation to the beneficial ownership of property, and whether the applicant made contributions to the gaining, improvement or retention of property for a joint purpose. The court also needed to determine whether the joint venture ended without attributable blame and whether it would be unconscionable for the respondent to assert that the applicant had no entitlement at all to the property beyond his share as tenant in common.

The court examined the evidence and arguments presented by both parties. The judge found that while there was evidence of the applicant's reprehensible conduct towards his mother, there was no submission that the partnership ended due to the applicant's blame. The farm was predominantly owned by the mother at the start of the partnership, and there was no evidence of the applicant contributing to the purchase price of the property. The applicant argued that his labour and management led to an increase in the property's value, but he presented no evidence to substantiate this claim. The judge concluded that the farm's increase in value over the 20-odd years was likely due to capital appreciation rather than the applicant's efforts.

The court dismissed the application, finding that the applicant had not established a valid claim for proprietary estoppel, a common intention constructive trust, or a joint venture constructive trust. The matter was adjourned for submissions on the distribution of monies in court and costs.

The final orders were that the application be dismissed and the matter be adjourned until Friday, 5 June 2020, for submissions as to the distribution of the monies in court and costs.

Orders

Orders of the court

1. The application is dismissed.

2. The matter is adjourned until Friday, 5 June 2020, for submissions as to the distribution of the monies in court and costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to whether the joint venture ended “without attributable blame”, I have had regard to Bryson J’s remarks in Bennett v Horgan (Supreme Court of NSW, 3 June 1994, unreported) at 11 (applied in Hill v Hill) (my emphasis) in which his Honour explains that the notion of blame involves something criminal or reprehensible –The concept of attributable blame must be understood and applied with some tolerance; in my view it does not call for a judgment attributing blame among members of a family for the continuing relationship becoming intolerable, unless perhaps in particularly gross cases. Such judgment would be difficult and unreliable, as it is rare indeed that something or other which could be said to be a ground for blame cannot be identified and laid to the charge of each of the persons concerned. Leaving gross cases involving criminality or similarly reprehensible behaviour on one side, it should usually be understood, in my opinion, that where personal relationships deteriorate and the sharing of a dwelling becomes intolerable to some or all of those concerned, there is, within the meaning of Deane J's expressions, no attributable blame and the case is one for an equitable adjustment. It is a sadly recurring judicial experience to see that family relationships do deteriorate and become intolerable, and that the persons involved did not foresee that this might happen. There is evidence here of Mr Nowland reprehensible conduct towards his mother contained in Mrs Nowland’s affidavits. However, it was not submitted by Mrs Nowland that I ought to determine the question of whether equity would impose a joint venture constructive trust on the basis that Mr Nowland was to blame for the end of the partnership. In the present case, the farm was effectively (15/16ths) wholly owned by Mrs Nowland at the beginning of the partnership. As in Hill v Hill, there is no room therefore for a trust arising out of any contributions by Mr Nowland to the purchase price of the property. He relies on an assertion that, via his labour and management of the cattle/the farm, the value of the property has improved. Mr Nowland does not suggest that he made any capital improvements to the real property – although in his affidavit, he mentions having to replace 85 per cent of the fences on Tellebang. Regardless, I will assume, without deciding, that the “improvement” to the property which Mr Nowland asserts he has achieved is a relevant improvement for present purposes. There is no doubt that the farm has increased in value over the 20-odd years of the partnership. However, the difficulty for Mr Nowland is that he presented no evidence which would allow me to draw a conclusion that his labour and management did in fact lead to an increase in its value over and above its capital appreciation over time. It is not enough for Mr Nowland to simply assert that it did. And of course, Mrs Nowland’s evidence is to the effect that Mr Nowland did not look after the property or the cattle in a satisfactory way.

Ratio Decidendi

Legal Principle Established

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