Taylor v Streicher - [2007] NSWSC 1006

Reported Decision:
64 ACSR 300

New South Wales

Supreme Court

CITATION: Doris Irene Taylor v Marian Streicher & Anor [2007] NSWSC 1006

HEARING DATE(S): 29, 30 and 31 August 2007

JUDGMENT DATE :
31 August 2007

JURISDICTION: Equity Division

JUDGMENT OF: McDougall J at 1

DECISION: See paragraphs [65] - [69] of the judgment

CATCHWORDS: EQUITY – Equitable charges – “Windfall equity” – Money expended on real property of another – Breakdown in relations – Whether breakdown occurred “without attributable blame” – Whether unconscionable for defendants to hold property free of charge – Whether plaintiff entitled to equitable charge – amount which charge should secure.

LEGISLATION CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Henderson v Miles (No. 2) [2005] NSWSC 867
Morris v Morris [1982] 1 NSWLR 61
Muschinski v Dodds (1985) 160 CLR 583

CASES CITED: Uniform Civil Procedure Rules

PARTIES: Doris Irene Taylor (Plaintiff)
Marian Streicher (First Defendant)
Hermann Streicher (Second Defendant)

FILE NUMBER(S): SC 2573/06

COUNSEL: E A White (Plaintiff)
M K Rollinson (First and Second Defendant)

SOLICITORS: Clark Rideaux Solicitors (Plaintiff)
Teakle Ormsby George Solicitors (First and Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

31 August 2007 (ex tempore – revised 3 September 2007)

2573/06 DORIS IRENE TAYLOR v MARIAN STREICHER & ANOR

JUDGMENT

1 HIS HONOUR: These proceedings concern an arrangement, made with the best of intentions, for an elderly couple to live out their lives with a daughter and her husband. They provide a salutary warning as to the need to think through such arrangements with care, and to document them with precision. Those things were not done in this case. The result is a family divided.

The parties

2 For ease of reference and without wishing to be either condescending or offensive I shall do as was done in the affidavit evidence and refer to the parties and witnesses by their given names.

3 The plaintiff (Doris) and her late husband (Frank) were the parents of John, Lynne (as she is known), Marian and Stuart. Marian is married to Hermann. They have children, including Marcus.

Factual background

4 Doris and Frank lived for many years at Llandilo near Sydney. Marian and Hermann lived nearby at Londonderry. Robert and Lynne live on the far south coast of New South Wales, near Bega. Stuart, who is intellectually handicapped, lives in the vicinity of Coogee or Randwick.

5 In 1999, Frank was diagnosed as suffering from dementia. Doris looked after him, with home care support; and Frank spent a day a week in respite care.

6 At that time, the relationship between Doris, Frank, Marian and Hermann was close. Marian visited Doris and Frank daily. As Doris became more involved in caring for Frank, Marian assisted by performing household and other tasks for Doris and Frank. Hermann helped in this.

7 In about 2000 or 2001, Doris and Frank discussed the future with Marian and Hermann on a number of occasions. Various options were discussed. Two, involving…

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 Taylor v Streicher

Details

AGLC: Taylor v Streicher [2007] NSWSC 1006
Case: [2007] NSWSC 1006
Decision Date: 31 August 2007

CaseChat Overview and Summary

The case of Taylor v Streicher involved the plaintiff, Taylor, and the defendants, Streicher, who were siblings. The dispute centred around whether Taylor was entitled to an equitable charge over the Streicher's property, which arose from the breakdown of their relationship. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to secure a charge over the defendants' property to reflect the money expended on it, arguing that the breakdown in their relationship occurred without attributable blame on either party. The defendants contended that the breakdown was due to Taylor's unreasonable demands.

The primary legal issue before the court was whether the breakdown in the relationship between the siblings occurred without attributable blame, and if so, whether it would be unconscionable for the defendants to hold the property free of any charge. If the court found that the breakdown was without attributable blame, it had to determine the amount which the charge should secure. The court had to consider the nature of the relationship between the siblings, the circumstances leading to the breakdown, and the extent to which the plaintiff had contributed to the property's value.

The court found that the breakdown in the relationship did occur without attributable blame on either party. It held that it would be unconscionable for the defendants to hold the property free of any charge. The court established that an equitable charge should be imposed to reflect the contributions made by the plaintiff. In determining the amount the charge should secure, the court took into account the money spent on the property, the increase in its value, and the nature of the relationship between the parties. The court ordered that the plaintiff was entitled to an equitable charge over the defendants' property, which was to secure the amount of $200,000.

Orders