Thornett v WILLIAMS - [2001] WASC 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: THORNETT -v- WILLIAMS [2001] WASC 194

CORAM: TEMPLEMAN J

HEARD: 23 JULY 2001

DELIVERED : 27 JULY 2001

FILE NO/S: CIV 2087 of 1999

BETWEEN: WENDY ELLEN THORNETT
Plaintiff
AND
GARRY JOHN WILLIAMS
Defendant

Catchwords:

Equity - Whether payment of $60,000 to owner of land was for the purchase of an interest in the land or was by way of gift - Whether constructive trust

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr C S Gallagher
Defendant: In person

Solicitors:

Plaintiff: C S Gallagher & Co
Defendant: In person

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Kais v Turvey (1994) 11 WAR 357

TEMPLEMAN J: The plaintiff, Mrs Wendy Ellen Thornett, who is now 40 years of age, is the widow of Mr Lyall Edward Thornett who died on 2 June 1999, apparently from cancer contracted while working in the mining industry.
The plaintiff had herself worked in the mining industry for some 10 years before her marriage, as a dump truck driver. The plaintiff married her late husband, who had been her boss, as she put it, some 10 months before his death.
The plaintiff's late husband received (on the plaintiff's evidence) some $285,000 by way of compensation for his illness. This was deposited in their joint bank account on or shortly before 17 February 1999.
On 18 February, the plaintiff paid $60,000 out of the joint account to the defendant, Mr Garry John Williams. The defendant is aged 50 years. He has been employed by Wesfarmers CSBP as a maintenance planner. It is his fifteenth year with that company. The plaintiff claims she made the payment to the defendant, in effect, to purchase a one undivided half share as a tenant in common with him of his property at 2 Serpentine Way, Stakehill, Mandurah.
The defendant denies that there was any such agreement. He contends that the payment was a gift, made by the plaintiff in contemplation of a shared life together, following the death of her then terminally ill husband.
In her statement of claim the plaintiff seeks a declaration that the defendant holds the property upon trust for her "as to a one half interest … alternatively in such shares as the Court shall determine". However, at trial, the plaintiff pursued an alternative claim: the repayment of $60,000 as money had and received, together with interest on that sum.
It is not necessary to refer to other claims pleaded in the statement of claim. That is because counsel for the plaintiff informed me that those claims had been settled.
It is common ground that the plaintiff and the defendant met by chance at the Sandy Cove Tavern, South Yunderup in December 1998. The plaintiff had then been married for some three months. She and her friend were at the tavern at the end of a day on which the plaintiff's husband had undergone a successful operation.
It is also common ground that the defendant…

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 Thornett v WILLIAMS

Details

AGLC: Thornett v WILLIAMS [2001] WASC 194
Case: [2001] WASC 194
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Wendy Ellen Thornett, the plaintiff, sought to establish a one-half interest in a property owned by Garry John Williams, the defendant, or alternatively, the repayment of $60,000 plus interest. The central legal issue revolved around whether the payment made by Thornett to Williams constituted a purchase of an interest in the property or was instead a gift. The court had to determine the true nature of the transaction based on the parties' intentions at the time of the payment.

Thornett claimed that the $60,000 payment was made to purchase a one-half share in Williams' property, while Williams contended that the payment was a gift made in contemplation of a romantic relationship. The court considered the credibility of both parties' accounts and the evidence presented, including a tape recording of a conversation between the parties and an insurance policy listing both parties as policyholders. Ultimately, the court found that the evidence did not support Thornett's claim of an investment agreement. Instead, the court accepted Williams' evidence that the payment was a gift, made in the context of what Thornett believed to be an enduring romantic relationship. The court also found that Thornett's account of the events was inconsistent and improbable.

Given the findings, the court dismissed Thornett's claim for a one-half interest in the property and her alternative claim for the repayment of the $60,000 plus interest. The court concluded that the payment was a gift and not an investment, and therefore, there was no basis for imposing a constructive trust or ordering the repayment of the money. The court's decision hinged on the assessment of the parties' credibility and the overall context of their relationship and the transaction in question.

Orders