S v W - [2004] QSC 212

SUPREME COURT OF QUEENSLAND

CITATION:

S v W [2004] QSC 212

PARTIES:

S
(plaintiff)
v
W
(defendant)

FILE NO/S:

BS 628 of 2004

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

23 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2004

JUDGE:

White J

ORDER:

Declare that:

(i) the plaintiff has a 20 per cent interest and the defendant has an 80 per cent interest in real property, described in these reasons as the Blackbutt land.1.

(ii) the plaintiff has a 48.8 per cent interest and the defendant has a 51.2 per cent interest in real property, Parish of Bribie, described in these reasons as the Diamond Valley land.

(iii) the plaintiff has no beneficial interest and the defendant has the whole of the beneficial interest in real property, described in these reasons as the Mt Julian property.

Subject to other order, or agreement between the parties, I order that the property mentioned in Order 1(ii) above to be vested in statutory trustees to be held by them on trust for public sale and to hold the proceeds of sale in the proportions set out in Order 1(ii).The costs of the sale are to be borne proportionally by the parties. A successful party may off-set the party’s declared interest in the land against the purchase price. 2.

Liberty to apply on the question of the appointment of trustees mentioned in Order 2.3.

Liberty to make submissions as to costs in writing within 7 days.4.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY –CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUST – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – de facto relationship of 9 years – where two properties were jointly owned – where one property owned solely by the defendant – where defendant’s property purchased prior to the relationship –where the parties pooled their incomes during the de facto relationship – financial and non-financial contribution – where the third property was purchased jointly after the parties had separated

Family Law Act 1975 (Cth)
Property Law Act 1974 (Qld)

Baumgartner v Baumgartner (1987) 164 CLR 137, followed
Black v Black (1991) 15 Fam L R 109, cited
Eves v Eves [1975] 1 WLR 1338, cited
Muschinski v Dodds (1985) 160 CLR 583, followed
Parij v Parij (1997) 72 SASR 153 (F.C.), considered
Read v Nicholls [2004] VSC 66, considered
Singer v Berghouse (1994) 181 CLR 201, cited

COUNSEL:

EJ Read for the plaintiff

The defendant appeared on her own behalf

SOLICITORS:

Schultz Toomey O’Brien Lawyers for the plaintiff

The defendant appeared on her own behalf

The parties were, according to their pleadings, in a de facto relationship as husband and wife between approximately 1982 and 1993. The evidence suggested that although they had known each other since 1982 they only began cohabiting in such a relationship in 1984. The plaintiff seeks declaratory orders and other relief relating to certain real…

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 S v W

Details

AGLC: S v W [2004] QSC 212
Case: [2004] QSC 212
Decision Date: 23 July 2004

CaseChat Overview and Summary

In the case of S v W, the plaintiff sought a declaration of beneficial interests in three properties jointly or severally owned with the defendant. The dispute arose out of a de facto relationship that lasted nine years, during which the parties pooled their incomes and contributed to the purchase of these properties. The properties in question were two jointly owned, one solely owned by the defendant which was purchased before the relationship, and another jointly owned after the relationship had ended.

The central legal issues were whether the plaintiff held a beneficial interest in the properties and, if so, to what extent. The court was required to determine whether an implied or constructive trust arose from the pooling of finances and contributions during the relationship, independent of the parties' intentions. The court had to assess the financial and non-financial contributions of both parties, the nature of their relationship, and the timing of property purchases in relation to the relationship.

The court found that the plaintiff had a beneficial interest in the jointly owned properties, with the extent of the interest reflecting their respective contributions. The court declared a 20 per cent interest for the plaintiff and an 80 per cent interest for the defendant in the Blackbutt land, and a 48.8 per cent interest for the plaintiff and a 51.2 per cent interest for the defendant in the Diamond Valley land. For the Mt Julian property, solely owned by the defendant prior to the relationship, the court found no beneficial interest for the plaintiff. The court ordered the Diamond Valley land to be vested in statutory trustees for sale, with the proceeds to be held in trust in the declared proportions. The costs of the sale were to be borne by the parties in proportion to their declared interests, with a successful party able to offset their declared interest against the purchase price. The court also granted liberty to apply for the appointment of trustees and to make written submissions on costs within seven days.

Orders

Orders of the court

Declare that:

(i) the plaintiff has a 20 per cent interest and the defendant has an 80 per cent interest in real property, described in these reasons as the Blackbutt land.1.

(ii) the plaintiff has a 48.8 per cent interest and the defendant has a 51.2 per cent interest in real property, Parish of Bribie, described in these reasons as the Diamond Valley land.

(iii) the plaintiff has no beneficial interest and the defendant has the whole of the beneficial interest in real property, described in these reasons as the Mt Julian property.

Subject to other order, or agreement between the parties, I order that the property mentioned in Order 1(ii) above to be vested in statutory trustees to be held by them on trust for public sale and to hold the proceeds of sale in the proportions set out in Order 1(ii).The costs of the sale are to be borne proportionally by the parties. A successful party may off-set the party’s declared interest in the land against the purchase price. 2.

Liberty to apply on the question of the appointment of trustees mentioned in Order 2.3.

Liberty to make submissions as to costs in writing within 7 days.4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	S v W [2004] QSC 212
PARTIES:	S (plaintiff) v W (defendant)
FILE NO/S:	BS 628 of 2004
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	23 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	16 July 2004
JUDGE:	White J
ORDER:	Declare that: (i) the plaintiff has a 20 per cent interest and the defendant has an 80 per cent interest in real property, described in these reasons as the Blackbutt land.1. (ii) the plaintiff has a 48.8 per cent interest and the defendant has a 51.2 per cent interest in real property, Parish of Bribie, described in these reasons as the Diamond Valley land. (iii) the plaintiff has no beneficial interest and the defendant has the whole of the beneficial interest in real property, described in these reasons as the Mt Julian property. Subject to other order, or agreement between the parties, I order that the property mentioned in Order 1(ii) above to be vested in statutory trustees to be held by them on trust for public sale and to hold the proceeds of sale in the proportions set out in Order 1(ii).The costs of the sale are to be borne proportionally by the parties. A successful party may off-set the party’s declared interest in the land against the purchase price. 2. Liberty to apply on the question of the appointment of trustees mentioned in Order 2.3. Liberty to make submissions as to costs in writing within 7 days.4.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY –CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUST – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – de facto relationship of 9 years – where two properties were jointly owned – where one property owned solely by the defendant – where defendant’s property purchased prior to the relationship –where the parties pooled their incomes during the de facto relationship – financial and non-financial contribution – where the third property was purchased jointly after the parties had separated Family Law Act 1975 (Cth) Property Law Act 1974 (Qld) Baumgartner v Baumgartner (1987) 164 CLR 137, followed Black v Black (1991) 15 Fam L R 109, cited Eves v Eves [1975] 1 WLR 1338, cited Muschinski v Dodds (1985) 160 CLR 583, followed Parij v Parij (1997) 72 SASR 153 (F.C.), considered Read v Nicholls [2004] VSC 66, considered Singer v Berghouse (1994) 181 CLR 201, cited
COUNSEL:	EJ Read for the plaintiff The defendant appeared on her own behalf
SOLICITORS:	Schultz Toomey O’Brien Lawyers for the plaintiff The defendant appeared on her own behalf