Rowley v Bruce

[2010] QDC 470

[2010] QDC 470

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 2431 of 2009

SELWYN EDWARD ROWLEY and MAUREEN OLIVE ROWLEY	Plaintiffs
and
GREGORY CRAIG BRUCE and JOANNA MARIE BRUCE	Respondents

BRISBANE

DATE 17/09/2010

ORDER

HIS HONOUR:  This is an application for summary judgment.  The claim is made by the plaintiffs who are the parents of the female defendant and the parents-in-law of the male defendant.  The plaintiffs seek a declaration that a constructive and/or resulting trust arises between the parties whereby the defendants hold one half of their legal interests in the property owned by the defendants at Greenbank on trust for the plaintiffs.

An alternative claim is made that the trust is in such proportions as the parties respective contributions represent to the whole of the property, finally that there'd be a declaration as to the legal and/or beneficial entitlement or such other declarations as the Court considers appropriate.  Then it is sought that there be orders for the appointment of statutory trustees for sale.  Basically, the plaintiffs allege they paid for a shed and a house to be constructed on the defendant's land and in that way the claimed trust arose. 

Unfortunately, the application is not supported by valuation evidence.  Without it I do not consider that I can make a decision of the kind being sought in the application.  Clearly I could not declare there is a constructive and/or resulting trust as to a half interest when I have no idea as to the value of the land, and the mere fact that monies were advanced as admitted in the defence for the construction of the shed and the house does not lead me to conclude that I can make the declarations sought.

Even declaring that there'd be some proportion held on trust, I am unable to do without evidence.  It may arguably be a case where the expenditure of the money did not necessarily improve the land to the same level as the expenditure.  There may be other considerations that are relevant that need to be considered before the declarations being sought can be made.

Another reason I declined to make the declarations sought today is that the National Australia Bank has given Notice to Occupier.  Clearly the bank has an interest in the property and it may be arguable the bank should be served with the application and be made a party to these proceedings.

...

HIS HONOUR:  Therefore, the question arises whether the application should be adjourned to allow for them to become a party.  In all the circumstances I find myself unable to agree to the application that has been brought and I've concluded that in all the circumstances, without other evidence, the application should be dismissed and I dismiss the application.

...

HIS HONOUR:  So the only order I make is the application is dismissed.

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