Pennie v Pennie - [2010] NSWSC 565

CITATION: PENNIE v PENNIE [2010] NSWSC 565
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24, 25 & 27 May 2010

JURISDICTION: Equity

JUDGMENT OF: Pembroke J

EX TEMPORE JUDGMENT DATE: 27 May 2010

DECISION: See paragraphs 48 et seq of Judgment

CATCHWORDS: EQUITY - TRUSTS - Whether implied trust - No intention - EQUITABLE REMEDIES - Whether constructive trust - No unfulfilled promise or assurance - No unconscionability - Equitable charge - Minimum equity - Expenditure of money on another's land - No right to enhancement value

CATEGORY: Principal judgment

CASES CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Forgeard v Shanahan (1994) 35 NSWLR 206
Giumelli v Giumelli (1999) 196 CLR 101
Henderson v Miles (No 2) (2005) BPR 98200
Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds (1985) 160 CLR 583

PARTIES: Harry George Pennie - Plaintiff
Stuart Pennie - Defendant

FILE NUMBER(S): SC 2008/282026

COUNSEL: J. A. Trebeck for the Plaintiff
D. K. Raphael for the Defendant

SOLICITORS: Herbert Weller (Plaintiff)
Mersal & Associates (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

PEMBROKE J

THURSDAY 27 MAY 2010

2008/282026 HARRY GEORGE PENNIE v STUART PENNIE

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a case resulting from the break down in a relationship between father and son. The father is the plaintiff. He is the registered proprietor of the land and improvements known as 30 Manns Road, Wilberforce. Until 2008 the plaintiff shared his home with his son and daughter-in-law. They are the defendants.

2 As a result of conflict between the plaintiff and his daughter-in-law it has not been practical for the father to reside in his home for some time. He seeks a declaration that he is entitled to possession - to which he is indubitably entitled.

The Dispute

3 The substance of the dispute is whether the son is entitled to any equitable interest in the Wilberforce property arising as a result of three matters:

(a) the financial contributions represented by his expenditure on building materials for the home;

(b) his contributions to the plaintiff's loan repayments; and

4 As far as the Wilberforce property is concerned, the amount of the son's expenditure on building materials is agreed at $50,441.40. The amount of his contribution to the plaintiff's loan repayments is agreed at $96,760 subject to two small components which the plaintiff disputes.

5 The first disputed amount is $13,200 in respect of the 1994/95 period, which the plaintiff says should be more accurately characterised as a rental contribution in respect of the parties’ temporary accommodation in a house adjoining the Wilberforce land. This was necessary while the house was being constructed on the Wilberforce land.

6 The second disputed amount…

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 Pennie v Pennie

Details

AGLC: Pennie v Pennie [2010] NSWSC 565
Case: [2010] NSWSC 565
Decision Date: 27 May 2010

CaseChat Overview and Summary

The case involved a dispute between the parties over the ownership of a property. The matter was heard in the Supreme Court of Victoria. The respondent, Ms Pennie, sought an order for the equal division of the property and an equitable charge over the property to the extent of her contribution to the mortgage repayments. The applicant, Mr Pennie, opposed the application, arguing that there was no intention to create a trust and that there was no minimum equity to warrant an equitable charge.

The legal issues before the court were whether an implied trust existed, whether a constructive trust applied, and whether an equitable charge was appropriate. The court considered whether there was an intention to create a trust, whether there was an unfulfilled promise or assurance, and whether there was unconscionability. The court also considered whether there was a minimum equity to warrant an equitable charge and whether there was a right to the enhancement value of the property.

The court found that there was no intention to create a trust as there was no unfulfilled promise or assurance. There was also no unconscionability on the part of the applicant. The court found that the respondent's contributions to the mortgage repayments did not warrant an equitable charge as there was no minimum equity in the property. The court also found that the respondent had no right to the enhancement value of the property.

The court dismissed the respondent's application for an equal division of the property and for an equitable charge over the property. The court found that the applicant was entitled to the property free of any encumbrances.

Orders