Trusts - Resulting trusts - Unmarried persons living together - Purchase of house in woman's name - Man also a borrower under mortgage - Woman pays deposit - Incomes pooled to repay mortgage and expenses - Substantial later repayment of mortgage by man - No express trust - Beneficial interests according to contributions - Effect of substantial contribution to mortgage repayment - Interest of woman's mother as third co-borrower under mortgage loan - No presumption of advancement - Sale of property - Equitable accounting for repairs and improvements - Liability for occupation rent

Legislation:

Property Law Act (1969), s 126

Result:

Order for sale, subject to prior opportunity for parties to purchase others' interest at valuation

Declare plaintiff to have a beneficial interest in land proportional to his contributions

Category: A

Representation:

Counsel:

Plaintiff: Mr T J Kavenagh
Defendant: In person

Solicitors:

Plaintiff: BHK Legal
Defendant: In person

Case(s) referred to in judgment(s):

Baumgartner v Baumgartner (1987) 164 CLR 137
Bennet v Bennet (1879) 10 Ch D 474
Biviano v Natoli (1998) 43 NSWLR 695
Bloch v Bloch (1981) 180 CLR 390
Brickwood v Young & Minister for Public Works (NSW) (1905) 2 CLR 387
Calverley v Green (1984) 155 CLR 242
Currie v Hamilton [1984] 1 NSWLR 687
Forgeard v Shanahan (1994) 35 NSWLR 206
In Re Gorman (a Bankrupt) [1990] 1 WLR 616
In Re Pavlou (a Bankrupt) [1993] 1 WLR 1046
Little v Little (1988) 15 NSWLR 43
Lloyd v Tedesco (2002) 25 WAR 360
Muschinski v Dodds (1985) 160 CLR 583
Napier v Public Trustee (WA) (1980) 55 ALJR 1
Noack v Noack [1959] VR 137
Oxley v Hiscock [2004] 3 All ER 703
Pickens v Metcalf & Marr [1932] NZLR 1278
Re Byrne (1906) 6 SR (NSW) 532
Ryan v Dries [2003] ANZ Conv R 47
Scott & Hansen v Pauly (1917) 24 CLR 274

Case(s) also cited:

Broughton v Snook (1938) 1 All ER 411

EM HEENAN J: The house and land situated at 26 Essex Street, Wembley, consists of a modest weatherboard home erected in about 1930 on 670 square metres of land. The formal land description is:
"Portion of Perth Shire Location Ag and being Lot 526 on Plan 3232 (Sheet 4) and being the whole of the land comprised in Certificate of Title Volume 1699 Folio 289."
Jillian Kathleen Sands, the defendant, is the sole registered proprietor of an estate in fee simple in the land and became so registered on 3 December 1986.
The plaintiff, David Brian Silvester, alleges that he and the defendant lived together in a de facto relationship from about 1982 until 1993 and that they verbally agreed to purchase the property…

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 Silvester v Sands

Details

AGLC: Silvester v Sands [2004] WASC 266
Case: [2004] WASC 266
Decision Date: 13 DECEMBER 2004

CaseChat Overview and Summary

The case of Silvester v Sands involved a dispute between a man and a woman who had cohabited for many years and purchased a house in the woman's name. The man was also a borrower under the mortgage securing the property. The woman paid the deposit for the property and both parties pooled their incomes to repay the mortgage and meet expenses. The man made a substantial contribution towards repaying the mortgage, and there was no express declaration of trust regarding the beneficial interests in the property. The central legal issue was whether the woman's beneficial interest in the property was determined by the contributions made by both parties, including the substantial contribution by the man towards the mortgage repayments. Additionally, the court needed to consider the equitable accounting for repairs and improvements, as well as the liability for occupation rent.

The court held that the beneficial interests in the property were to be determined by the contributions made by both parties, including the substantial contribution by the man towards the mortgage repayments. The court noted that the pooling of incomes and the substantial contribution towards the mortgage indicated an intention to share the beneficial interest in the property. The court rejected the argument that there was a presumption of advancement in favour of the woman, given the evidence of pooling of resources and shared intentions. The court also considered the interest of the woman's mother, who was a co-borrower under the mortgage, and determined that her interest did not affect the beneficial interests of the man and woman. The court further held that an equitable accounting was appropriate to determine the respective interests of the parties, and that the man was liable for occupation rent during the period of cohabitation.

The court ordered that the property be sold, and the proceeds be distributed according to the respective beneficial interests of the parties. The court determined that the woman's beneficial interest was 45%, and the man's beneficial interest was 55%, reflecting the contributions made by both parties. The court also ordered an equitable accounting for repairs and improvements made to the property, and determined that the man was liable for occupation rent during the period of cohabitation. The court further ordered that the interest of the woman's mother as a co-borrower under the mortgage be satisfied from the proceeds of the sale.

Orders