Swettenham v Wild - [2004] QSC 420

SUPREME COURT OF QUEENSLAND

CITATION: Swettenham v Wild [2004] QSC 420
PARTIES: LEONARD THOMAS GEORGE SWETTENHAM
(plaintiff)
v
ROSE-MARIE BEVERLY WILD
(defendant)
FILE NO: BS6780 of 2003
DIVISION: Trial Division
PROCEEDING Trial
DELIVERED ON: 29 November 2004
DELIVERED AT: Brisbane
HEARING DATE: 22 and 23 November 2004
JUDGE: Mullins J
ORDER:

1. That the defendant pay the plaintiff equitable compensation of $45,000 for the plaintiff’s entitlement to reside in the self contained flat in the house on the real property described as Lot 413 on RP 223343 County of Ward Parish of Gilston (“the property”) for the remainder of the plaintiff’s life.
2. It is declared that the defendant holds the property subject to an equitable charge in favour of the plaintiff to secure the payment by the defendant to the plaintiff of the equitable compensation of $45,000.
CATCHWORDS: EQUITY – GENERAL PRINCIPLES – EQUITABLE ESTATES AND INTERESTS – GENERALLY – NATURE OF EQUITABLE ESTATES AND INTERESTS – plaintiff entered into arrangement with his daughter that he would contribute the majority of purchase price for a house with granny flat on condition that he could reside in granny flat for remainder of his life – where property purchased in plaintiff’s name but daughter and husband made mortgage payments into plaintiff’s account – where plaintiff subsequently transferred property to daughter – where family dispute led to irretrievable breakdown in relationship – where plaintiff moved out of granny flat – whether presumption of advancement applied to transfer of property to daughter – whether plaintiff’s equitable interest in the property was limited to a right to reside in granny flat for the rest of his life – whether it would be unconscionable for daughter to deny plaintiff his equitable interest in the property – whether plaintiff entitled to an equitable charge to secure payment of equitable compensation equal to the value of the entitlement to reside in granny flat for life
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Lawrence v Branch [2002] WASCA 292
Muschinski v Dodds (1985) 160 CLR 583
COUNSEL: KF Boulton for the plaintiff ME Pope for the defendant
SOLICITORS: Hunter Solicitors for the plaintiff
Michael McMillan for the defendant

MULLINS J: The plaintiff claims a declaration that he holds an equitable interest in real property situated at 2 Rob Roy Court, Nerang in the State of Queensland (“the property”), being Lot 413 on RP 223343, County of Ward, Parish of Gilston and a determination of the extent of his interest. A house which incorporates a self contained flat referred to as the “granny flat” is situated on the property. The defendant acknowledges that the plaintiff has an interest in the property which is enforceable in equity to the extent only of the right to reside in the granny flat for the remainder of his life. The defendant submits that the plaintiff is entitled to equitable compensation for the present value of the cost for the plaintiff to rent similar accommodation to the granny flat for the…

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 Swettenham v Wild

Details

AGLC: Swettenham v Wild [2004] QSC 420
Case: [2004] QSC 420
Decision Date: 29 November 2004

CaseChat Overview and Summary

The case of Swettenham v Wild involved the plaintiff, who had purchased a house with a self-contained flat with the intention that his daughter, the defendant, would ultimately benefit from the property. The plaintiff intended to reside in the flat for the remainder of his life, and he arranged for the mortgage payments to be made by the defendant and her husband. After the property was transferred to the plaintiff, a family dispute led to a breakdown in their relationship, and the plaintiff was asked to move out of the flat. The primary issue was whether the presumption of advancement applied to the transfer of the property to the defendant, and whether the plaintiff’s equitable interest was limited to his right to reside in the flat for the remainder of his life. Another issue was whether it would be unconscionable for the defendant to deny the plaintiff his equitable interest in the property. The court needed to determine if the plaintiff was entitled to an equitable charge to secure payment of equitable compensation equal to the value of his entitlement to reside in the flat for life.

The court examined the evidence presented by both parties and found that the plaintiff’s intention at the time of purchasing the property was to benefit the defendant by ultimately giving the property to her. The court found that the plaintiff’s actions, such as selling his assets in Victoria and relocating to Queensland, demonstrated his intent to benefit his children during his lifetime rather than waiting until his death. The court also considered the terms of the plaintiff’s will, which confirmed his intention to give the property to the defendant. The court concluded that the presumption of advancement did not apply to the transfer of the property to the defendant. The court found that the plaintiff’s equitable interest was limited to his right to reside in the flat for the remainder of his life, and that it would be unconscionable for the defendant to deny the plaintiff this interest.

The court ordered that the defendant pay the plaintiff equitable compensation of $45,000 for the plaintiff’s entitlement to reside in the self-contained flat for the remainder of his life. The court declared that the defendant holds the property subject to an equitable charge in favour of the plaintiff to secure the payment of the equitable compensation. This charge ensures that the plaintiff’s equitable interest is protected and that he receives the compensation he is entitled to. The court’s decision recognised the plaintiff’s contributions to the purchase of the property and his intention to benefit his daughter, and sought to provide a fair outcome for both parties.

Orders

Orders of the court

That the defendant pay the plaintiff equitable compensation of $45,000 for the plaintiff’s entitlement to reside in the self contained flat in the house on the real property described as Lot 413 on RP 223343 County of Ward Parish of Gilston (“the property”) for the remainder of the plaintiff’s life.

It is declared that the defendant holds the property subject to an equitable charge in favour of the plaintiff to secure the payment by the defendant to the plaintiff of the equitable compensation of $45,000.

Background

Background to the litigation

This litigation arose after the relationship between the plaintiff and the defendant broke down. The recollection of each of the plaintiff and the defendant about the events prior to the breakdown seems to have been affected or coloured by the deep resentment each of these parties bears the other, as a result of the breakdown. I have therefore endeavoured throughout these reasons to explain, when it has been necessary, why I have preferred some evidence over other evidence. Facts The plaintiff lived in Victoria with his wife. By 1998 he formed the intention of coming to Queensland to live after his wife who was dying at that stage passed away. The defendant and her family had been living in a rented house at Nerang for some time, when the plaintiff expressed the intention to the defendant and her husband in 1998 of buying a house property on the Gold Coast which had a self contained flat, so that the defendant and her family could live in the house and he could live in the self contained accommodation. The plaintiff’s wife died in 1999. He sold his house in Victoria. The plaintiff gave to his other son Alan the sum of $100,000 and a car, a caravan and some whitegoods and gave the sum of $170,000 to Barry. Both the plaintiff and the defendant located the property as suitable for purchase. The plaintiff entered into a contract to purchase it for the sum of $232,000. The plaintiff decided he would put in the sum of $190,000 towards the purchase of the property. The plaintiff organised for a home loan from the Australia and New Zealand Banking Group Limited (“ANZ”) for the sum of $55,000 to enable the balance of the purchase price to be paid, some expenses to be paid and for a car to be purchased for the defendant’s husband. The intention of the plaintiff, the defendant and the defendant’s husband was that the defendant and her husband would meet the repayments under the mortgage. The transfer of the title of the property to the plaintiff was registered on 20 June 2000. There was a conflict in the evidence between the plaintiff and the defendant and her husband, as to why the property was purchased in the plaintiff’s name. I am satisfied, having regard to the evidence of the plaintiff’s distribution of some of his assets to his sons and the arrangements that were made for the defendant and her husband to make the payments under the mortgage given by the plaintiff over the property, that it was the plaintiff’s intention at the time of purchasing the property to benefit the defendant ultimately by giving the property to her, whether under his will or by way of gift in his lifetime. It was apparent from the plaintiff’s actions in selling up his assets in Victoria and re-locating to Queensland that he was intent on benefiting his children during his lifetime, rather than having them wait until he passed away, before they obtained their inheritance. The intent to benefit the defendant by giving her the property was confirmed by the terms of the will which the plaintiff made on 26 November 2000 whereby he gave the property to the defendant.

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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