Swettenham v Wild

Case [2005] QCA 264

SUPREME COURT OF QUEENSLAND

CITATION:

Swettenham v Wild  [2005] QCA 264

PARTIES:

LEONARD THOMAS GEORGE SWETTENHAM (plaintiff/appellant)
v
ROSE-MARIE BEVERLEY WILD
(defendant/respondent)

FILE NO/S:

Appeal No 11135 of 2004
SC No 6780 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2005

JUDGES:

McMurdo P, Williams JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal allowed.1.    

Set aside the orders made at first instance.2.    

Declaration that Rose-Marie Beverley Wild holds her legal ownership of Lot 413 on RP 223343, County of Ward, Parish of Gilston, on trust to pay Leonard Thomas George Swettenham $213,760.3.    

Liberty to apply within 14 days for any further orders necessary to give effect to these reasons.4.    

The respondent pay the appellant’s costs of and incidental to the trial and the appeal.5.    

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS - INDEPENDENT OF INTENTION – PARTICULAR CASES – where joint venture the purchase of a house subject to the right of the appellant to reside in a family environment

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – IMPLIED TRUSTS – RESULTING TRUSTS – WHERE INTENTION PRESUMED – REBUTTAL OF IMPLICATION – PRESUMPTION OF ADVANCEMENT – REBUTTAL OF PRESUMPTION OF ADVANCEMENT – parent/child relationship – where circumstances of relationship may be used to rebut the presumption – common intention of parties dependent on a continuing state of affairs or joint endeavour – where the joint endeavour failed

Allen v Snyder [1977] 2 NSWLR 685, cited         Baumgartner v Baumgartner (1987) 164 CLR 137, followed Bennett v Horgan (unreported, Supreme Court of New South Wales, Bryson J, No 4056 of 1991, 3 June 1994), referred to Calverley v Green (1984) 155 CLR 242, cited Lawrence v Branch [2002] WASCA 292, cited  Muschinski v Dodds (1985) 160 CLR 583, followed         Nelson v Nelson (1995) 184 CLR 538, cited               Turner v Dunne [1996] QCA 272; Appeal No 196 of 1995, 20 August 1996, followed  Willets v Marks & Skram Investment Pty Ltd [1994] QCA 006; Appeal No 115 of 1993, 14 February 1994, cited

COUNSEL:

K F Boulton, for the appellant
D A Savage SC for the respondent

SOLICITORS:

Hunter Solicitors for the appellant
Holding Redlich acting as Town Agents for McMillan Criminal Law for the respondent

  1. McMURDO P:  I agree with Atkinson J that the appeal should be allowed for the reasons she gives and with the orders she proposes.

  1. WILLIAMS JA: The relevant facts are fully set out in the reasons for judgment of Atkinson J and it is not necessary for me to repeat them.  I agree with her Honour's analysis of the issues raised on the hearing of the appeal, but it is desirable that…

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AGLC
Swettenham v Wild [2005] QCA 264
Case
[2005] QCA 264
Decision Date

CaseChat Overview and Summary

In the case of Swettenham v Wild, the primary issue was the determination of the legal ownership of a property held in joint names. The dispute arose between Leonard Thomas George Swettenham and Rose-Marie Beverley Wild, who were involved in a joint venture to purchase a house. Swettenham claimed that an implied trust existed over the property, which entitled him to a share of the equity in the property. The case was heard and determined by the court, which was required to decide on the existence and nature of any trust over the property.

The central legal issue was whether an implied trust existed over the jointly owned property, specifically a constructive trust that would arise from the parties' conduct and the nature of their relationship. The court needed to determine if the joint purchase of the property and the appellant's right to reside in a family environment established a trust, independent of the parties' intentions. Additionally, the court considered whether there was a presumption of advancement between the parties, particularly in light of their parent/child relationship, and if this presumption could be rebutted by the circumstances of their relationship and the nature of their joint endeavour.

The court found that an implied trust did exist over the jointly owned property, which required the respondent to hold the legal title on trust for the appellant. The court held that the joint purchase of the property and the appellant's right to reside in a family environment were sufficient to establish a constructive trust, irrespective of the parties' intentions. The court also determined that the presumption of advancement was rebutted by the evidence of the nature of the relationship and the joint endeavour, which failed due to circumstances beyond the parties' control. Consequently, the appeal was allowed, and the orders made at first instance were set aside. The court declared that the respondent hold the legal ownership of the property on trust for the appellant, and the respondent was ordered to pay the appellant's costs of the trial and appeal.

Orders

Orders of the court

Appeal allowed.1.

Set aside the orders made at first instance.2.

Declaration that Rose-Marie Beverley Wild holds her legal ownership of Lot 413 on RP 223343, County of Ward, Parish of Gilston, on trust to pay Leonard Thomas George Swettenham $213,760.3.

Liberty to apply within 14 days for any further orders necessary to give effect to these reasons.4.

The respondent pay the appellant’s costs of and incidental to the trial and the appeal.5.

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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