Stenholm v Rimland
[2014] QDC 148
•20 June 2014 ex tempore
DISTRICT COURT OF QUEENSLAND
CITATION: | Stenholm v Rimland [2014] QDC 148 |
PARTIES: | RODNEY HOWARD STENHOLM (Applicant) v LINA RIMLAND (Respondent) |
FILE NO/S: | 2129/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 20 June 2014 ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 June 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. The originating application continue as if it is a claim. 2. The Applicant pay the Respondent’s costs of the application on an indemnity basis. 3. The Applicant file and serve his Statement of Claim by 4 July 2014. 4. The Respondent file and serve her Defence and Counter-claim, if any, by 1 August 2014. 5. The Applicant file and serve his Reply and Answer by 15 August 2014. |
CATCHWORDS: | PRACTICE - ORIGINATING APPLICATION - where the Applicant seeks recovery of possession of property - whether the originating application provides for appropriate form of relief for the Applicant EQUITY - EQUITABLE REMEDIES - UNCONSCIONABILITY - where it was submitted that the Respondent in reliance on an assumption acted to the Respondent’s detriment by expending amounts of money for the maintenance and repair of the property - whether the Applicant’s assertion that the property is the Applicant’s sole property to the exclusion of any interest held by the Respondent amounts to unconscionable conduct - whether any unconscionable conduct on the facts ought to attract the intervention of equity and the imposition of a constructive trust and/or estoppel LIMITATION OF ACTIONS - APPLICATION OF STATUTES OF LIMITATION - whether the limitation period for the Applicant to recover possession of the property has expired Legislation District Court of Queensland Act 1967 (Qld) s 68(1)(b)(xi) |
COUNSEL: | Mr S Fisher on behalf of the Applicant Mr MF Bonasia on behalf of the Respondent |
SOLICITORS: | Romans and Romans Lawyers for the Applicant Hatzis Lawyers for the Respondent |
HIS HONOUR: This is an application pursuant to section 68, subsection (1), paragraph (b), sub-subsection (xi) of the District Court Act 1967[1] for an order that the Respondent give the Applicant possession and for the Applicant to recover possession of the property located at 38 Turton Street, Sunnybank. The application is opposed.
[1] District Court of Queensland Act 1967 (Qld).
The parties were former de facto partners. Their relationship commenced in 1975 or 1976. They commenced cohabitating in 1976. In 1978, the Applicant relocated to Moree in New South Wales. When the Applicant and the Respondent formed their relationship, the Respondent already had two children from a previous relationship. During the late 1970s and early 1980s, the Applicant and the Respondent had three children together. In 1982, the parties relocated to Brisbane at Romilly Street. Then, in 1984, the property at 38 Turton Street, Sunnybank was purchased.
There is no dispute it was put solely in the name of the Applicant. There is a dispute as to what contribution the Respondent may have made towards the purchase of the property. That dispute would be a matter that would need to be resolved if this application were to proceed as the Respondent contends. The parties, though, separated in 1987 and between 1987 and 1997, the Applicant paid the rates on the property to the Brisbane City Council. He has also paid rates on the property totalling $33,397.38 between 1997 and March 2014. As the evidence shows, the Applicant via his solicitors requested the Respondent to vacate the property and deliver up possession of it to the Applicant on 3 April 2014. On 4 June 2014, this application was filed, by which the Applicant has sought to recover possession of the property.
There is no dispute that the parties separated in 1987. It is also not disputed that the provisions of the Property Law Act[2] state – and the Commonwealth legislation relating to the breakdown of relationships does not apply to the circumstances of the parties. The Applicant contends that, generally speaking, the Respondent has simply been in possession of the property under a licence and that licence has been terminated. In effect, the Applicant claims that the Respondent is a trespasser and has no basis to resist the application.
[2] Property Law Act 1974 (Qld).
While the Applicant might dispute this, the evidence before me from the Respondent, if accepted, is that the Respondent has financially contributed to the property. During 1984 and 1987, she was a stay-at-home mother contributing financially with the proceeds of sale of her land in Amberley, Queensland. After the Applicant’s departure in 1987, she was the sole person who financially maintained and cared for the property. Further, she spent significant amounts of money on the upkeep of the property. Between 1988 and 2013, she says she spent $24,783.72 on the property.
In addition, the Respondent says that she made non-financial contributions to the property. Again, if this is accepted, she was responsible for locating the property and was involved in the negotiations for its purchase. Further, over the 27 years, she was responsible for raising the children. She was also responsible for the upkeep of the property and the yard. There were also contributions by both parties financial and otherwise to the acquisition of the property and making it their home. This was done as a joint relationship.
Therefore it is submitted by Mr Bonasia on behalf of the Respondent that the Applicant’s assertion that the property is his sole property to the exclusion of any interest held by the Respondent amounts to unconscionable conduct, which ought to attract the intervention of equity and the imposition of a constructive trust. In addition, Mr Bonasia submits that an estoppel arises in this matter. That is, the Respondent has relied on an assumption that she has a legal and equitable interest in the property.
Her assumption in that regard was adduced, it is said, by the Applicant’s agreement with the Respondent that the property would be jointly owned at the time of purchase and in his conduct in failing to respond to the Respondent’s solicitor’s letter in 1988 and taking no action for 27 years while allowing the Respondent to believe she had that entitlement. Therefore, in reliance on that assumption, it is submitted the Respondent acted to her detriment in that she has expended significant amounts of money in the maintenance and repair of the property and she has left employment to care for the Applicant and the children.
Therefore, it is submitted that the Court will be required to conduct an examination of the evidence and facts in order to determine the minimum equity required to do justice to the Respondent. In addition, Mr Bonasia submits that the limitation period has expired for seeking possession of the property. Whether that is so will depend upon the resolution of questions of fact. He submits that that ought to be determined at a trial.
In the end, having considered the competing arguments and having considered the evidence before me both from the Applicant and from the Respondent, I accept Mr Bonasia’s submissions on behalf of the Respondent. There is an arguable dispute here that there is a constructive trust and that the Respondent has made contributions which should be recognised.
Further, there has been possession of the property over 27 years with other incidents, such as solicitors’ letters which have not been responded to, which could lead to an estoppel. Again, arguably, the limitation period may have expired. I do not accept that this is an appropriate matter to be determined on an applications day by way of originating application. There are matters that require to be identified by both parties as to their rights and they are best identified in pleadings to be exchanged between the parties. I do not accept this is a straightforward matter of the Respondent having a licence which has been terminated.
I conclude there is an arguable case here of a constructive trust or that there is an estoppel or that the limitation period has expired. It is for these reasons, then, that I dismiss the application and order that proceedings continue as if started by claim. I also order that the Applicant file and serve his statement of claim by 4 July 2014, the Respondent file and serve her defence and counter-claim, if any, by 1 August 2014 and the Applicant file and serve his reply and answer by 15 August 2014. I will hear Mr Fisher if those dates are sought to be altered but I will hear you also, Mr Fisher, on the question of costs.
MR FISHER: Yes. As your Honour pleases. Your Honour, may I just consider the form of the orders?
HIS HONOUR: Yes.
MR FISHER: Your Honour has said a moment ago that the application should be dismissed but also that the – essentially, there are to be pleadings to be exchanged. My submission in that respect, if I may make one, if it’s not too late ‑ ‑ ‑
HIS HONOUR: Yes.
MR FISHER: ‑ ‑ ‑ is that, really, what my friend proposes in his proposed order 2 – so number 1 should not be made, in my respectful submission. The proceedings which are an originating application should continue as if started by claim so that the originating application stands as a claim. And then the timetabling orders that your Honour has intimated are, with respect, acceptable to the Applicant. So in my submission, it’s not an appropriate order for – that this application be dismissed. It should be, in a sense, converted into ‑ ‑ ‑
HIS HONOUR: Yes.
MR FISHER: It should be allowed – the order should be, in my submission – the originating application should stand as a claim and then we be ordered to file the statement of claim.
HIS HONOUR: Yes. What do you say about that, Mr Bonasia?
MR BONASIA: Your Honour, that’s sensible. I’ve got no submissions in relation to it.
HIS HONOUR: Well, look. All right. I’ll take order 1 out and then I’ll simply order – I’ll renumber 2 as 1:
The originating application continues as if it is a claim.
And then number 3 is the one about costs. That’ll become number 2. And then the directions – well, I should renumber them 3, 4 and 5. But yes, all right. So what do you say about the costs?
HIS HONOUR: In the end, this matter – considering that the parties have been together for many years, it would be apparent that there would be claims by the Respondent to an entitlement to the property. To my mind, not only has the Applicant lost, he was put on notice that the Respondent would bear her own costs if a timetable could be agreed to progress the matter on the basis of claim and statement of claim and defence and counter-claim and reply and answer.
To my mind, the Applicant has been unreasonable in not accepting the offer that was made, even though it was made yesterday. It clearly could have saved a lot of costs. I’ve come to the view, therefore, that the order that should be made is that the Applicant pay the Respondent’s costs of the application on an indemnity basis. And there will be an order then as per the draft, initialled by me and left with the papers. Yes. Nothing further, then? No. Thank you.
MR BONASIA: No. Thank you, your Honour.
HIS HONOUR: Yes. Thank you.
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