Pain v Pain

[2006] QSC 335

SUPREME COURT OF QUEENSLAND

CITATION:

Pain v Pain & Ors  [2006] QSC 335

PARTIES:

MALCOLM DOUGLAS PAIN
 (plaintiff)
v
WILLIAM DOUGLAS PAIN
 (first defendant)
DELMA MARY PAIN
(second defendant)
TAITLANDS PTY LTD (ACN 010 486 727)
(third defendant)

FILE NO/S:

BS 5078 of 2004

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court Queensland at Brisbane

DELIVERED ON:

8 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2006 – 7 August 2006

JUDGE:

Lyons J

ORDER:

1.        It is declared that the first, second and third            defendants have held the proceeds of sale of all the            properties as to an amount of $732,000 by way of a            constructive trust from the time of the sale. 

2.        That the first, second and third defendant’s pay to            the plaintiff an amount of $732,000 together with            interest from 16 July 2003.

3.        That the amount of $348,902 currently held on            trust from the proceeds of the sale of Shillingford,            together with interest thereon, should be paid to            the plaintiff’s solicitor’s trust account in partial            satisfaction of this award.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – CLASSIFICATION OF TRUSTS IN GENERAL – CONSTRUCTIVE TRUSTS - INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – whether a representation was made by the defendant to the plaintiff – whether it is unconscionable for the defendants to seek to rely on their legal rights – whether the plaintiff has an entitlement to the relief claimed

Austin v Keele (1987) 72 ALR 579 [considered]
Baumgartner v Baumgartner (1987) 164 CLR 137 [applied]
Flinn v Flinn [1999] 3 VR 712 [applied]
Muschinski v Dodds (1985) 160 CLR 583 [applied]
Rogers v Rogers [2001] VSC 141 [applied]
Swettenham v Wild [2005]QCA 264 [applied]

COUNSEL:

DB Fraser QC with A Moon for the plaintiff
GC Martin SC with JB Rolls for the first, second and third defendants

SOLICITORS:

Connolly Suthers Lawyers for the plaintiff
Damien Bourke and Associates for the first, second and third defendants

Introduction

1. LYONS J:  The plaintiff, Malcolm Pain, is now 39 years old and is the only son of the first and second defendants, Bill and Delma Pain.  They also have a daughter Vickie who is 37 years old.  The first and second defendants conducted farming operations in the Jandowae region of Queensland for almost 40 years.  They started on a farm known as Nardoo which they purchased on 28 September 1965, and the farming enterprise was subsequently expanded to include three other properties called Taitlands, Tanyannah and Shillingford.  The first property was initially used for peanut farming but the farming operations expanded after the other properties were purchased to include cattle grazing, dairy farming and grain growing.

1. This action arises because the plaintiff claims he worked on the farms all of his life without adequate recompense.  In particular he states that after he left school he worked over a sixteen year period without wages in reliance on a representation by the first and second defendants that one day the farms…