Shepherd v Doolan

Case [2005] NSWSC 42


CITATION:

Shepherd v Doolan & OrsShepherd v Doolan & Anor; Est. Doolan [2005] NSWSC 42

HEARING DATE(S): 31/01/05, 01/02/05, 02/02/05, 07/02/05
 
JUDGMENT DATE : 


10 August 2005

JUDGMENT OF:

White J

DECISION:

Direct counsel for the plaintiff to bring in short minutes of order in accordance with reasons.

CATCHWORDS:

TRUSTS AND TRUSTEES - Plaintiff claims a beneficial interest in property forming part of deceased estate on the basis of either a resulting or constructive trust - Whether money contributed to the acquisition of a weekend lease from the Crown was part of cost acquiring title in fee simple - Whether plaintiff and deceased had a common intention that the former have a beneficial interest in property - Whether plaintiff acted to her detriment in reliance upon this common intention - Held that common intention need not extend to quantum of beneficial interest and plaintiff had a beneficial interest under a Grant v Edwards constructive trust - SUCCESSION - Wills - Family Provision - Application by de facto wife - Family Provision Act s 7 - Provision made.

LEGISLATION CITED:

Family Provision Act 1982 (NSW)
Crown Lands Consolidation Act 1913 (NSW)
Property (Relationships) Act 1984 (NSW)

CASES CITED:

Grant v Edwards [1986] Ch 638
Green v Green (1989) 17 NSWLR 343
Baumgartner v Baumgartner (1987) 164 CLR 137
Hibberson v George (1989) 12 Fam LR 725
Currie v Hamilton [1984] 1 NSWLR 687
Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060
Napier v Public Trustee (WA) (1980) 55 ALJR 1; 32 ALR 153
Bloch v Bloch (1981) 55 ALJR 701
Calverley v Green (1984) 155 CLR 242
Anson v Anson [2004] NSWSC 766
Ryan v Dries (2002) 10 BPR 19,947; [2002] NSWCA 3
Chief Commissioner of State Revenue v Dick Smith Electronics Holdings Pty Ltd [2005] HCA 3; (2005) 79 ALJR 550; 213 ALR 230
Little v Little (1988) 15 NSWLR 43
Muschinski v Dodds (1985) 160 CLR 583
Maharaj v Chand [1986] AC 898
West v Mead [2003] NSWSC 161
Pettitt v Pettitt [1970] AC 777
Gissing v Gissing [1971] AC 886
Allen v Snyder [1977] 2 NSWLR 685
Brandling v Weir [2003] NSWSC 723
Parianos v Melluish (Trustee) (2003) 30 Fam LR 524
Burns v Burns [1984] Ch 317
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Bryson v Bryant (1992) 29 NSWLR 188
Austin v Keele (1987) 10 NSWLR 283
Carruthers v Manning [2001] NSWSC 1130
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Bladwell v Davis [2004] NSWCA 170
ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193

PARTIES:

Joyce Edith Shepherd
v
Laurence Patrick Doolan & Ors;

Joyce Edith Shepherd
v
Laurence Patrick Doolan & 1 Or; Estate of William Daniel Doolan

FILE NUMBER(S):

SC 1269/03; 3186/04

COUNSEL:

Plaintiff: Mr D Williams
Defendants: Mr P Glissan

SOLICITORS:

Plaintiff: Herbert Weller Solicitor
Defendants: Mervyn J Cathers & Co Solicitors

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
FPA LIST

WHITE J

Wednesday,…

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Shepherd v Doolan [2005] NSWSC 42
Case
[2005] NSWSC 42
Decision Date

CaseChat Overview and Summary

The matter before the court was Shepherd v Doolan, where the plaintiff sought a beneficial interest in a property that formed part of the deceased's estate. The plaintiff argued that she was entitled to either a resulting or constructive trust over the property. The central issue was whether the funds contributed by the plaintiff to acquire a weekend lease from the Crown should be considered part of the cost of acquiring the fee simple title to the property. Additionally, the court needed to determine if there was a common intention between the plaintiff and the deceased that the former would have a beneficial interest in the property, and if the plaintiff had acted to her detriment in reliance upon this common intention. The court found that the common intention did not need to specify the exact quantum of the beneficial interest and that the plaintiff had a beneficial interest under a constructive trust as per Grant v Edwards. The de facto wife of the deceased also applied under the Family Provision Act s 7, seeking provision from the estate.

In arriving at its decision, the court examined the nature of the relationship between the plaintiff and the deceased and the contributions made by the plaintiff towards the acquisition of the property. It held that a common intention regarding the beneficial interest in the property did not need to be explicitly defined in terms of the extent of the interest. The court found that the plaintiff had a beneficial interest under a constructive trust, which arose from the common intention that she would have a beneficial interest in the property. The court also considered the application by the de facto wife under the Family Provision Act and determined that provision should be made from the estate. The court's reasoning was grounded in the established principles of equity and the law of trusts, as well as the relevant statutory provisions. The outcome of the case was that the plaintiff was entitled to a beneficial interest in the property, and the de facto wife's application for provision from the estate was successful.

The final orders of the court were that the plaintiff was granted a beneficial interest in the property under a constructive trust, and the de facto wife's application for provision from the estate was successful. The court ordered that appropriate provision be made from the estate to the de facto wife under the Family Provision Act. The decision in Shepherd v Doolan provides valuable guidance for practitioners dealing with similar cases involving trusts and succession matters, particularly in relation to the application of constructive trusts and the Family Provision Act. The court's reasoning highlights the importance of considering the common intention between parties and the detrimental reliance on that intention when determining beneficial interests in property.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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