Scanlon v Mcleay

[2018] QDC 17

DISTRICT COURT OF QUEENSLAND

CITATION:

Christine Robyne Scanlon v Michelle Ann McLeay [2018] QDC 17

PARTIES:

CHRSTINE ROBYNE SCANLON
(applicant)

v

MICHELLE ANN MCLEAY
(respondent)

FILE NO.:

19 of 2014

DIVISION:

Civil

PROCEEDING:

Originating Application

DELIVERED ON:

28 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16 and 17 November 2017

JUDGE:

Rosengren DCJ

ORDER:

1.   I declare that the respondent holds her legal interest in the real property, described in these reasons as the Chermside property, on trust for the applicant to the extent of $49,000. 

2.   I will hear the parties as to the appropriate form of the orders for performance of the trust. 

3.   The originating application is otherwise dismissed.

4.   I will hear the parties as to costs.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – RESULTING TRUSTS – WHEN ARISING – JOINT PURCHASE OF LAND – UNCONSCIONABILITY – where the applicant and the respondent were de facto partners - where the applicant and respondent both contributed money towards the deposit for the purchase of the Chermside property – where the title of the Chermside property was in the respondent’s name only – whether the applicant’s contribution to the deposit was intended to be a gift – whether a resulting trust exists in favour of the applicant to the extent of her contribution to the deposit

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – UNCONSCIONABILITY whether the applicant’s financial contributions to the Chermside property entitle her to an equitable interest in the property by way of remedial constructive trust

Calverley v Green (1984) 155 CLR 242, cited
Vlahos Pty Ltd v Vlahos [2017] VSCA 166, cited
Gissing v Gissing [1971] AC 886, cited
Muschinski v Dodds (1985) 160 CLR 583, cited
Charles Marshall Pty Ltd v Grimsley (1965) 160 CLR 583, cited
Barker v Linklater & Anor [2007] QCA 363, cited
Hardman v Hardman [2002] QSC 112, cited

Baumgartner v Baumgartner (1987) 164 CLR 137, cited
Clancy v Salienta Pty Ltd (2000) 11 BPR 20,425, cited
Drever v Drever [1936] ALR 446, cited

COUNSEL:

T O’Brien for the applicant
D Topp for the respondent

SOLICITORS:

MacDonald Law for the applicant
Advance Family Lawyers for the respondent

[1]          The parties were in a personal relationship between approximately May 2008 and September 2013.  They commenced co-habiting in March 2010, after a property was purchased at 10 Monserrat St, Chermside (‘the Chermside property’).  While the respondent is the registered proprietor of the Chermside property, the applicant contributed $49,000 to the deposit and made other payments to the respondent’s mortgage account.   She also paid for the installation of blinds and a fence.

[2]          By an originating application filed on 17 April 2014, the applicant seeks declaratory and other equitable relief relating to the Chermside property arising out of the abovementioned contributions. 

[3]          On 18 November 2015, Dorney DCJ QC ordered that the affidavits filed in the proceedings be treated as pleadings.  Directions were also made in…