Turnbull v McGregor - [2003] NSWSC 899

Reported Decision:
(2003) DFC 95-272

Supreme Court

CITATION: Turnbull v McGregor [2003] NSWSC 899

HEARING DATE(S): 7,8,9 May 2003

JUDGMENT DATE:
2 October 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master McLaughlin

DECISION: (1) I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes and, if desired, for argument as to costs.

CATCHWORDS: Family Law - De facto relationship - Adjustment of interests of parties in property - Respective contributions of parties - Residence purchased in name of Defendant alone - Caution should be exercised in applying to claims by a de facto partner under section 20 of the Property (Relationships) Act 1984 (NSW) the principles which the Family Court of Australia applies to applications under section 79 of the Family Law Act 1975 (Commonwealth) - The Property (Relationships) Act looks to past contributions, whereas the Family Law Act looks also to present and future needs - Constructive trust - Where relief is granted under section 20 of Property (Relationships) Act the basis for the imposition of a constructive trust is thereby removed, since the beneficial interest then claimed by the Defendant can no longer be treated as unconscionable or contrary to equitable principle.

LEGISLATION CITED: Property (Relationships) Act 1984

CASES CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Black v Black (1991) 15 FamLR 109
Davey v Lee (1990) 13 FamLR 688
Evans v Marmont (1997) 42 NSWLR 708
Green v Robertson (1995) 36 NSWLR 96
Jones v Grech [2001] NSWCA 208
Matheson v Wallis [2001] NSWSC 931, McLaughlin M, 22 October 2001
Muschinski v Dodds (1985) 160 CLR 583
Ngyuen v Scheiff (2002) 29 FamLR 177
Roy v Sturgeon (1986) 11 NSWLR 454
Sullman v Sullman [2002] NSWSC 169
Wallace v Stanford (1995) 37 NSWLR 1

PARTIES :
Lesley Jane Turnbull (Plaintiff)
Grant Alexander McGregor (Defendant)

FILE NUMBER(S): SC 1148/02

COUNSEL: D.M. Flaherty (Plaintiff)
M. Bridger (Defendant)

SOLICITORS: Wallbanks (Plaintiff)
Peter Howell & Company, Solicitors (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 2 October 2003

1148/02 LESLEY JANE TURNBULL -v- GRANT ALEXANDER McGREGOR

JUDGMENT

1 MASTER: By statement of claim filed on 18 January 2002 the Plaintiff, Lesley Jane Turnbull, claims against the Defendant, Grant Alexander McGregor, orders for the adjustment of interests in property pursuant to the provisions of the Property (Relationships) Act 1984 and also claims relief in respect to an asserted constructive trust.

2 On 7 May 2003, the day of the commencement of the hearing of the proceedings, Justice Barrett, as Duty Judge in the Equity Division, made an order for the entirety of the proceedings to be heard by a Master.

3 The parties were in a de facto relationship from July 1990 until August 2000. No children were born of that relationship.

4 At the commencement of the relationship the Plaintiff (who was born on 11 October 1968 and was then aged twenty-one) was in employment, receiving an annual income…

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 Turnbull v McGregor

Details

AGLC: Turnbull v McGregor [2003] NSWSC 899
Case: [2003] NSWSC 899
Decision Date: 2 October 2003

CaseChat Overview and Summary

In the matter of Turnbull v McGregor, the parties were engaged in a dispute concerning the adjustment of their interests in a property which had been purchased in the name of the defendant alone. The case was heard by the Supreme Court of New South Wales. The central issue was whether the plaintiff, as the de facto partner of the defendant, was entitled to a share of the property based on their respective contributions to the relationship and the home.

The court needed to determine the extent to which the principles governing claims under section 79 of the Family Law Act 1975 (Commonwealth) could be applied to a claim under section 20 of the Property (Relationships) Act 1984 (NSW). The court acknowledged the differences between the two statutes, particularly in their focus on past contributions versus present and future needs. The court held that while the Property (Relationships) Act primarily considers past contributions, the Family Law Act also takes into account the present and future needs of the parties.

The court reasoned that the imposition of a constructive trust in this context was not appropriate because the grant of relief under section 20 of the Property (Relationships) Act effectively removes the basis for such a trust. The court found that the defendant's beneficial interest in the property, which had been claimed by the plaintiff, could no longer be considered unconscionable or contrary to equitable principles once the statutory adjustment had been made. The court ultimately ruled in favour of the plaintiff, granting her an appropriate share of the property based on the contributions she made to the relationship and the home.

Orders