Smith v Ward

[2000] QDC 29

DISTRICT COURT OF QUEENSLAND

CITATION:	Smith v Ward [2000] QDC 029
PARTIES:	SUZANNE MARY SMITH(Plaintiff) V DAVID JOHN WARD (Defendant)
FILE NO/S:	4399 of 1998
DIVISION:	District Court
PROCEEDING:	Action
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	10 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	1-3 March 2000
JUDGE:	P.D. Robin, Q.C., D.C.J.
ORDER:	Declaration of beneficial entitlement in the house, as to one half, made in favour of the plaintiff
CATCHWORDS:	Constructive trust – de facto relationship – plaintiff invited into defendant’s house and resided with him there for more than 8½ years, they had a son together – plaintiff obtains declaration of beneficial entitlement in house, as to one half, fails to obtain such a declaration in respect of defendant’s business in which she had been employed, on wages
COUNSEL:	Mr P Favell for the plaintiff Mr G Page SC for the defendant
SOLICITORS:	Macfie Curlewis Spiro for the plaintiff Anderssen & Co for the defendant

1. The parties lived in a de facto relationship at No. 14 Bridge Street, Albion until September 1992, when the plaintiff Mrs Smith left, taking with her their son, who had been born in July 1985. The parties had continuing contact, not only to do with their son, but also through the plaintiff’s continuing to work in an upholstery and furniture business which traded as John Brown Design from 14 Bridge Street and (from a date in the first part of 1993) in a factory nearby in Hudson Street. About May 1993, that employment ended, perhaps in accordance with legal advice.

1. The plaintiff began these proceedings by a Supreme Court writ issued 9^th January 1994 seeking declaration of a 50% beneficial interest in the house property mentioned and in “all of the goodwill, fixtures and fittings, plant and chattels, stock in trade, sundry debtors and other assets” of the business and ancillary relief, including appointment of a trustee or trustees on the statutory trust for sale under s.38 and following sections of the Property Law Act 1974. In the circumstances, and given the time that has elapsed, the parties agreed it would be inappropriate to proceed directly to order sales in the event of the plaintiff’s success, and that any declarations made could appropriately be accompanied by an intimation from the Court of the sum of money Mr Ward might pay to acquire or extinguish Mrs Smith’s interests.

1. By agreement of the parties, the action was transferred to the District Court in October 1998.

1. About 1983, Miss Smith and Mr Ward met through an organisation which provided social support for people who found themselves without partners. She had four children, and it seemed all but the youngest daughter had left, or would shortly leave home, which was a rented Housing Commission residence at Enoggera. Mr Ward had a daughter who lived with her mother, but regularly came to stay with him. The plaintiff’s case is that she and the defendant, by the things they did, if not expressly, pooled their assets…