Payne v Rowe

In the matter of Payne v Rowe, the parties were siblings, both of whom were co-owners of a property, along with their mother. The dispute centred around the application for the appointment of statutory trustees for the sale of the property and the adjustment of the interests in the property. The court was required to decide several legal issues, including whether the non-occupying owner was entitled to an occupation fee, the applicability of certain principles from McKay v McKay and Callow v Rupchev, the attribution of contributions made by associated entities to the parties, the applicability of resulting trusts and remedial constructive trusts, the distinction between claims for constructive trusts and claims for debt or money had and received, the admissibility of evidence in connection with settlement negotiations, and the onus of proof.

The court found that the non-occupying owner was entitled to an occupation fee as there had been no exclusion from the property, and the principle in McKay v McKay and Callow v Rupchev was applicable to the "domestic relationship" between the brother, sister, and mother. The court also determined that contributions made by associated entities were attributable to the parties if they were made with the parties' knowledge and approval. In terms of trusts, the court found that a presumption of a resulting trust based on contributions to the purchase price was rebutted where the parties had agreed on the beneficial interest at the time of purchase. The court further found that the principle in Baumgartner applied to the family relationship, but the relevant "joint enterprise" had to be identified, and there had to be "attributable blame" for the failure of the joint enterprise. The court also found that the parties were adequately compensated by a right to contribution, and their respective contributions should be valued according to the increase in value of the property.

The court held that a claim for the imposition of a remedial constructive trust was subject to a limitation period and that the Limitation Act applied directly or by analogy. The court distinguished between a claim for a constructive trust and a claim for debt or action for money had and received, finding that the claim for a remedial constructive trust accrued when the party became aware of the relevant facts that gave rise to the claim. The court also found that evidence of communications in connection with an attempt to negotiate a settlement of the dispute was inadmissible, and admissions made in such communications were not admissible simply because they qualified other evidence adduced in proceedings. Finally, the court found that the onus of proof was on the defendant if the allegation was not simply a denial of an essential ingredient of the cause of action but a good defence.

The final orders of the court were that the non-occupying owner was entitled to an occupation fee, the contributions made by associated entities were attributable to the parties, and the parties were adequately compensated by a right to contribution. The court also found that the claim for the imposition of a remedial constructive trust was subject to a limitation period and that the Limitation Act applied directly or by analogy. Finally, the court held that evidence of communications in connection with an attempt to negotiate a settlement of the dispute was inadmissible, and the onus of proof was on the defendant if the allegation was not simply a denial of an essential ingredient of the cause of action but a good defence.