Pike & Anor v Tighe & Anor - [2017] HCATrans 127

[2017] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B5 of 2017

B e t w e e n -
JOSHUA JAMES PIKE AND NATALIE PATRICIA PIKE
Applicants
and
KIM LOUISE TIGHE AND MICHAEL JAMES TIGHE
First Respondents
TOWNSVILLE CITY COUNCIL
Second Respondent
Application for special leave to appeal

KIEFEL CJ
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2017, AT 11.12 AM

MR D.R. GORE, QC: May it please the Court, I appear with my learned friend, MR J.G. LYONS, for the applicants. (instructed by wilson/ryan/grose Lawyers)

KIEFEL CJ: Thank you. The first respondents have advised the Court that they do not seek to make oral submissions and will rely upon their written submissions, and the second respondent has filed a submitting appearance. Yes, Mr Gore.

MR GORE: Thank you, your Honour. Your Honours, in our submission, the Court of Appeal made two basic errors in its decision. The first was that in its view the power of the Planning and Environment Court to make enforcement orders under section 604(1) of the Sustainable Planning Act only arose upon the court being satisfied that the first respondents had committed the alleged development offence. That conclusion is at paragraph [22] at page 39 of the application book.

The second basic error was that the Court of Appeal decided that section 245 of the Sustainable Planning Act did not apply to the first respondents for two basic reasons: firstly, because they were not parties to the reconfiguration of the original lot approved by the development approval - that reason appears in paragraph [37] at page 45 of the application book; and secondly, because the obligation in condition 2 only had to be complied with at the time of registration of the survey plan. That reasoning appears in various places but chiefly in paragraphs [24] and [26] at page 40 of the application book, and in paragraph [36] at page 45 of the application book.

Your Honours, we submit that the two errors are interrelated but that the second error would probably be viewed as the more critical of the two. We submit by way of introductory submissions that the applicant’s argument on that second critical question is, we submit, supported by the two Queensland cases which were referred to by the Court of Appeal, the single judge decision of Peter Lyons Justice in Wirkus v Wilson Lawyers, and the Court of Appeal decision in Peet Flagstone, whereas there is no decision of any court that the Court of Appeal relied upon or could be pointed to that points the other way.

So, part of our argument is that the Court of Appeal have erred in their treatment of the two Queensland cases which we say are supportive of the applicant’s position. Further, we submit that ‑ ‑ ‑

KIEFEL CJ: Are you saying that creates an inconsistency for the Queensland…

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.

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Details

Case: [2017] HCATrans 127
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the Pike family (the appellants) and the Tighe family (the respondents) concerning the ownership of a parcel of land. The core of the disagreement revolved around whether the Tighe family held a beneficial interest in the land, despite the legal title being registered in the name of the Pike family.

The central legal issue before the High Court was whether the respondents had established a resulting trust over the land. Specifically, the court had to determine if the evidence demonstrated that the funds used to purchase the property were provided by the respondents, with the intention that the legal title be held by the appellants for the benefit of the respondents. This involved an examination of the principles governing resulting trusts, particularly in circumstances where parties are closely related.

The High Court applied the established principles of resulting trusts, which arise by operation of law where a transfer of property is made for no consideration, or where a purchaser pays part or all of the purchase price for property which is then vested in another. The court considered the presumption of advancement, which typically applies between spouses and parents and children, but found that the evidence did not support its application in this instance. Instead, the court focused on the intention of the parties at the time of the purchase, finding that the respondents had provided the purchase moneys with the intention of acquiring a beneficial interest in the land.

The High Court allowed the appeal, finding that a resulting trust had been established. The court ordered that the Pike family held the land on trust for the Tighe family.

Orders