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Penya v Penya

Penya v Penya

Case [2025] NSWSC 805 23 July 2025

Proprietary Estoppel

Common Intention Constructive Trusts

Constructive Trust Following Failure of Joint Endeavour

Co-ownership

Statutory Trust for Sale

Property Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Penya v Penya [2025] NSWSC 805
Hearing dates: 8 – 11 October 2024
Date of orders: 23 July 2025
Decision date: 23 July 2025
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision:
2023/143366
See orders at [218].
2023/33949
See orders at [219].

Catchwords:
ESTOPPEL – proprietary estoppel by encouragement – where plaintiff is the daughter of the defendants who are co-owners of property – where plaintiff claims the defendants made repeated representations to her that, if she worked full-time in the parents’ real estate business without pay, she would be “given” the property and the business within her parents’ lifetime – where plaintiff did work in the business without pay for approximately 22 years – where first defendant (father) has sold the rent roll of the business and, in separate proceedings, seeks an order under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the property – where plaintiff claims the defendants are estopped from denying her alleged entitlement to have the property transferred to her, hold the property on constructive trust for her, and should account to her for proceeds of sale of the rent roll – Held: alleged representations were not made, proprietary estoppel claim fails
EQUITY – trusts – common intention constructive trusts – where plaintiff is the daughter of the defendants who are co-owners of property – where plaintiff claims the parties agreed or had the common intention that, if the plaintiff worked full-time in the parents’ real estate business without pay, she would be “given” the property and the business within her parents’ lifetime – where first defendant (father) has sold the rent roll of the business and, in separate proceedings, seeks an order under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the property – where plaintiff claims the defendants hold the property on constructive trust for her and should account to her for proceeds of sale of the rent roll – Held: alleged common intention or agreement not established, constructive trust claim fails
EQUITY – trusts –constructive trust following failure of alleged joint endeavour – where plaintiff is the daughter of the defendants who are co-owners of property – where plaintiff claims the parties were engaged in a joint endeavour to “enhance the material wellbeing of their family” pursuant to which the plaintiff worked in the parents’ real estate business without pay – where plaintiff claims the defendants have received a windfall benefit arising from applying revenue of the business to repay loans secured against the property – where first defendant (father) seeks in separate proceedings an order under s 66G of the Conveyancing Act 1919 (NSW) for the sale of the property – where plaintiff claims the defendants hold the property on constructive trust for her – where subject property was acquired prior to the commencement of the alleged joint endeavour – Held: alleged understanding or joint endeavour not established, constructive trust claim…

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 Penya v Penya

Details

AGLC: Penya v Penya [2025] NSWSC 805
Case: [2025] NSWSC 805
Decision Date: 23 July 2025

CaseChat Overview and Summary

The case of Penya v Penya involved the daughter, who was the plaintiff, and her parents, who were the defendants, who co-owned a property. The plaintiff claimed that her parents had made repeated representations to her that, if she worked full-time in their real estate business without pay, she would be given the property and the business within her parents' lifetime. She worked in the business without pay for approximately 22 years. The father, who was one of the defendants, had sold the rent roll of the business and was seeking an order under section 66G of the Conveyancing Act 1919 (NSW) for the sale of the property. The plaintiff claimed that the defendants were estopped from denying her entitlement to the property, that the property should be held on constructive trust for her, and that she should account for the proceeds of the sale of the rent roll.

The court was required to decide whether the defendants had made the alleged representations to the plaintiff, and whether there was a common intention or agreement that the plaintiff would be given the property and the business within her parents' lifetime. The court also needed to determine whether there was a joint endeavour to enhance the material wellbeing of their family, and whether the property should be held on constructive trust for the plaintiff following the failure of the alleged joint endeavour.

The court held that the alleged representations were not made and that the plaintiff's claim for proprietary estoppel by encouragement failed. The court also found that there was no evidence of an agreement or common intention that the plaintiff would be given the property and the business within her parents' lifetime, and that the constructive trust claim failed. The court further held that there was no evidence of a joint endeavour to enhance the material wellbeing of their family, and that the constructive trust claim following the failure of the alleged joint endeavour also failed. The court found that the property should be sold, and that trustees for sale should be appointed. The court did not consider it necessary to address the issue of the statutory trust for sale.

Orders