Owen v Stone - [2000] QCA 56

SUPREME COURT OF QUEENSLAND

CITATION: Owen v Stone [2000] QCA 56

PARTIES: PETER MARK STONE
(plaintiff/respondent)
v
MARION RUTH OWEN
(defendant/appellant)

FILE NO/S: Appeal No 2071 of 1999
DC No 329 of 1996

DIVISION: Court of Appeal

PROCEEDING: General civil appeal

ORIGINATING COURT:
District Court at Southport

DELIVERED ON: 7 March 2000

DELIVERED AT: Brisbane

HEARING DATE: 17 November 1999

JUDGES: McMurdo P, Pincus and Thomas JJA
Judgment of the Court

ORDER:
Appeal allowed. Order below varied as follows:

(a)   by replacing "40 per cent" with "30 per cent" in paragraphs 1, 2 and 6(c);

(b)   by replacing the word "of" in the last line of paragraph 1 with "and";

(c)    by replacing the word "of" in the first line of paragraph 2 with "to";

(d)   by replacing paragraph 6(d) with the following:

"(d) In payment of the sum of $7,421 to the plaintiff representing $11,421 on the plaintiff's claim less $4,000 on the cross claim; and …".

Respondent to pay the appellant’s costs of the appeal to be assessed.

CATCHWORDS:
EQUITY – TRUSTS AND TRUSTEES – CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – proceedings between former de facto partners – defendant holding property subject to constructive trust in favour of plaintiff – whether 60 per cent/40 per cent apportionment justified – Baumgartner v Baumgartner (1987) 164 CLR 137, Muschinski v Dodds (1985) 160 CLR 583 discussed – actual contributions of the parties to the property assessed – other contributions unquantified but probably equal – apportionment altered to 70 per cent/ 30 per cent – whether plaintiff entitled to additional money for defendant having benefit of sole occupation and renting of property – principles relating to money claims by co-tenants under property law distinguished – in cases where level of equitable interest is in issue, if one party is effectively excluded from trust property, excluding party consequently derives benefit from use of that property, and economic benefit is reasonably capable of assessment, adjustment should generally be made in favour of deprived party – relief not limited to fortuitous circumstance that the excluding party happens to be trustee

Baumgartner v Baumgartner (1987) 164 CLR 137, considered
Boviano v Natoli (1998) 43 NSWLR 695, considered
Crew v Sheldon (1995) DFC 95-168, considered
Forgeard v Shanahan (1994) 35 NSWLR 206, considered
Fuller v Meehan [1999] QCA 37; CA No 1323 of 1998, 26 February 1999, applied
Marriott v Franklin (1993) 60 SASR 457, considered
Muschinski v Dodds (1985) 160 CLR 583, applied
Tracey v Bitfield (1998) 23 Fam LR 260, considered

COUNSEL: Mr R Hamwood QC for the appellant
Mr GTW Miller QC for the respondent

SOLICITORS: Hopgood Ganim for the appellant
Jones Mitchell for the respondent

THE COURT: These proceedings are between former de facto partners who resided together for about 12 years and separated in November 1993. There were no children of the relationship. The only substantial asset acquired during the relationship…

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 Owen v Stone

Details

AGLC: Owen v Stone [2000] QCA 56
Case: [2000] QCA 56
Decision Date: 7 March 2000

CaseChat Overview and Summary

The parties to the appeal were Owen, the appellant, and Stone, the respondent. The dispute arose between the former de facto partners regarding the equitable division of a property they had owned together. The case was heard in the Supreme Court of Queensland, which had previously determined the property should be divided in a 60 per cent to 40 per cent ratio in favour of the appellant. The respondent appealed this decision, arguing for a 50 per cent to 50 per cent division. The court was tasked with determining the appropriate division of the property between the parties and whether the appellant was entitled to additional compensation for the respondent's occupation of the property.

The primary legal issue before the court was the appropriate apportionment of the equitable interest in the property between the parties. The court was required to consider the contributions made by each party, both financial and otherwise, in determining the appropriate division. The court also needed to determine whether the appellant was entitled to additional compensation for the respondent's occupation of the property, and if so, how much that compensation should be. The court had to balance the principles of equity and the need for a fair outcome with the specific circumstances of the case.

The court found that the contributions of the parties to the property were not entirely quantifiable, but that the appellant's actual financial contributions were greater than those of the respondent. The court also found that the other contributions made by the parties were likely equal, but that the respondent had derived an economic benefit from the property by occupying it alone. The court held that, in cases where one party is effectively excluded from the trust property, and the excluding party consequently derives a benefit from the use of that property, and the economic benefit is reasonably capable of assessment, an adjustment should generally be made in favour of the deprived party. The court adjusted the apportionment of the property to 70 per cent to the appellant and 30 per cent to the respondent. The court also found that the appellant was entitled to additional compensation of $7,421 for the respondent's occupation of the property.

The final orders of the court were to allow the appeal, vary the previous order of the Supreme Court of Queensland to reflect the new apportionment of the property, and order the respondent to pay the appellant's costs of the appeal. The court's decision emphasised the importance of a fair outcome in cases involving former de facto partners and the need to consider all contributions, both quantifiable and not, in determining the appropriate division of property.

Orders

Orders of the court

Appeal allowed. Order below varied as follows:

(a) by replacing "40 per cent" with "30 per cent" in paragraphs 1, 2 and 6(c);

(b) by replacing the word "of" in the last line of paragraph 1 with "and";

(d) by replacing paragraph 6(d) with the following:

"(d) In payment of the sum of $7,421 to the plaintiff representing $11,421 on the plaintiff's claim less $4,000 on the cross claim; and …".

Respondent to pay the appellant’s costs of the appeal to be assessed.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Owen v Stone [2000] QCA 56
PARTIES:	PETER MARK STONE (plaintiff/respondent) v MARION RUTH OWEN (defendant/appellant)
FILE NO/S:	Appeal No 2071 of 1999 DC No 329 of 1996
DIVISION:	Court of Appeal
PROCEEDING:	General civil appeal
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	7 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 1999
JUDGES:	McMurdo P, Pincus and Thomas JJA Judgment of the Court
ORDER:	Appeal allowed. Order below varied as follows: (a) by replacing "40 per cent" with "30 per cent" in paragraphs 1, 2 and 6(c); (b) by replacing the word "of" in the last line of paragraph 1 with "and"; (c) by replacing the word "of" in the first line of paragraph 2 with "to"; (d) by replacing paragraph 6(d) with the following: "(d) In payment of the sum of $7,421 to the plaintiff representing $11,421 on the plaintiff's claim less $4,000 on the cross claim; and …". Respondent to pay the appellant’s costs of the appeal to be assessed.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – proceedings between former de facto partners – defendant holding property subject to constructive trust in favour of plaintiff – whether 60 per cent/40 per cent apportionment justified – Baumgartner v Baumgartner (1987) 164 CLR 137, Muschinski v Dodds (1985) 160 CLR 583 discussed – actual contributions of the parties to the property assessed – other contributions unquantified but probably equal – apportionment altered to 70 per cent/ 30 per cent – whether plaintiff entitled to additional money for defendant having benefit of sole occupation and renting of property – principles relating to money claims by co-tenants under property law distinguished – in cases where level of equitable interest is in issue, if one party is effectively excluded from trust property, excluding party consequently derives benefit from use of that property, and economic benefit is reasonably capable of assessment, adjustment should generally be made in favour of deprived party – relief not limited to fortuitous circumstance that the excluding party happens to be trustee Baumgartner v Baumgartner (1987) 164 CLR 137, considered Boviano v Natoli (1998) 43 NSWLR 695, considered Crew v Sheldon (1995) DFC 95-168, considered Forgeard v Shanahan (1994) 35 NSWLR 206, considered Fuller v Meehan [1999] QCA 37; CA No 1323 of 1998, 26 February 1999, applied Marriott v Franklin (1993) 60 SASR 457, considered Muschinski v Dodds (1985) 160 CLR 583, applied Tracey v Bitfield (1998) 23 Fam LR 260, considered
COUNSEL:	Mr R Hamwood QC for the appellant Mr GTW Miller QC for the respondent
SOLICITORS:	Hopgood Ganim for the appellant Jones Mitchell for the respondent