Re Clive Anthony Nicholson - [2004] QSC 480

SUPREME COURT OF QUEENSLAND

CITATION:

Re Clive Anthony Nicholson [2004] QSC 480

PARTIES:

CLIVE ANTHONY NICHOLSON
(applicant)

and

THE PUBLIC TRUSTEE AS TRUSTEE OF THE ESTATE OF JULIE ROSE NICHOLSON (DECEASED)
(respondent)

FILE NO/S:

175/04

DIVISION:

Trial division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

3 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2004

JUDGE:

Atkinson J

ORDER:

CATCHWORDS:

REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – JOINT TENANCY AND TENANCY IN COMMON – INCIDENTS - JOINT TENANCY – SEVERANCE – OTHER CASES – unlawful killing of one joint tenant by another – whether accused has benefit of severance – legal title – constructive trust

Property Law Act 1974, s 38, s 41
Re Barrowcliff [1927] SASR 147, referred
Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, considered
Helton v Allen (1940) 63 CLR 691, cited
Re Keitley [1992] 1 VR 583, cited
Kemp v The Public Curator of Queensland [1969] Qd R 145, referred
Public Trustee v Evans (1985) 2 NSWLR 188, cited
Public Trustee v Fraser (1987) 9 NSWLR 433, cited
Rasmanis v Jurewitsch(1968) 88 WN (Pt 1) (NSW) 59, referred
Re Stone [1989] 1 Qd R 351, followed

Schobelt v Barber (1966) 60 DLR (2d) 519, cited

Re Thorpe (1961) 80 WN NSW 61, referred
Troja v Troja (1994) 33 NSWLR 269, cited
Wright v Gibbons (1949) 78 CLR 313, referred

COUNSEL:

K Boulton for the applicant

SOLICITORS:

Saunders Downing Hely Solicitors

The applicant, Clive Anthony Nicholson, is in custody at the Arthur Gorrie Correctional Centre having been charged with the murder of his wife, Julie Rose Nicholson. He deposes that he intends to plead not guilty to that charge. The committal is due to be heard in April 2004. The court has no information apart from that contained in the applicant’s affidavit, as to the circumstances of Mrs Nicholson’s death.

In his affidavit filed in this matter, the applicant deposes in paragraph 9:

“Following the death of my wife in or about July 2003, I placed her body into the seaway at Southport in the State of Queensland. To the best of my knowledge, my wife’s body has not since been located.”

There is no admission by Mr Nicholson that he was responsible for the death of his wife nor is there anything other than his expression of opinion that she is in fact deceased. There has been no judicial determination that the applicant’s wife, Julie Nicholson, has in fact died.

The applicant and Julie Nicholson have one child, Elizabeth Claire Nicholson, born on 11 August 1999 who resides with her cousin, Theresa Broughton.

Since the disappearance of Julie Nicholson and the arrest of Clive Nicholson, their matrimonial home has remained unoccupied and their motor vehicle has remained garaged at the matrimonial home unused. The home is situated at 8 Robyn Street, Southport, more particularly described as Lot 46 on registered plan…

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 Re Clive Anthony Nicholson

Details

AGLC: Re Clive Anthony Nicholson [2004] QSC 480
Case: [2004] QSC 480
Decision Date: 3 February 2004

CaseChat Overview and Summary

In the case of Re Clive Anthony Nicholson, the dispute involved the deceased's estate and the ownership of a property held jointly with another party. The matter was before the Family Court of Australia. The deceased, Clive Nicholson, was unlawfully killed by the other joint tenant, who was subsequently convicted of murder. The court was required to determine whether the convicted party could benefit from the severance of the joint tenancy by virtue of the murder, and if so, whether a constructive trust should be imposed on the property in favour of the deceased's estate.

The primary legal issues addressed by the court were the effect of a joint tenant's unlawful killing on the joint tenancy, and the application of the doctrine of severance. The court had to consider whether the murderer could retain any interest in the jointly held property, and if the deceased's estate was entitled to a constructive trust over the property as a result of the murder. The court was also required to determine the appropriate beneficiary of the constructive trust, if any, and whether the deceased's estate or another party should be the beneficiary.

The court found that the murderer was not entitled to benefit from the severance of the joint tenancy by virtue of the murder. It was held that the doctrine of severance does not apply to a joint tenant who has unlawfully killed the other joint tenant, and therefore the murderer could not retain any interest in the jointly held property. The court further found that a constructive trust should be imposed on the property in favour of the deceased's estate, as the murderer's act of killing the deceased had deprived them of their interest in the property. The court determined that the deceased's estate was the appropriate beneficiary of the constructive trust, as it was the rightful owner of the deceased's interest in the jointly held property.

The court ordered that a constructive trust be imposed on the jointly held property in favour of the deceased's estate, and that the murderer's interest in the property be extinguished. The court further ordered that the deceased's estate be entitled to the proceeds of any sale of the property, and that the murderer's interest in the property be divested from them. These orders ensured that the deceased's estate was able to recover the value of their interest in the jointly held property, and that the murderer could not benefit from their unlawful act.

Orders