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Turner v Dunne

Turner v Dunne

Case [1996] QCA 272 20 August 1996

Unconscionable Conduct

Contributions to Joint Relationship

Constructive Trust

Equitable Interest

Appeal

Apportionment of Property

Family Law

Property Law

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IN THE COURT OF APPEAL	[1996] QCA 272
SUPREME COURT OF QUEENSLAND

Appeal No. 196 of 1995

Brisbane

Before Macrossan CJ

Pincus JA
McPherson JA

[Turner v. Dunne]

BETWEEN:

HEATHER TURNER

(Plaintiff)

Respondent

AND:

JOHN CHARLES DUNNE

(Defendant)

Appellant

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 20/08/1996.

The respondent, Ms Turner, claimed an equitable interest in assets standing in the separate

name of Mr Dunne and a judge of District Courts has found in the respondent's favour declaring that

a constructive trust arose in the circumstances that prevailed during the parties' period of

cohabitation.

The relevant facts are set out in detail in the judgment below. It is to be noted that the

judge had to deal with a situation where there were no particular conflicts arising on the evidence

although there were some areas where, due to fading recollections, precise findings were not

possible.

The conclusion to which I am drawn leaves me in disagreement with the majority view that

will prevail in this case. I set out the reasons for my conclusion.

First, and by way of summary, I can say that after giving due weight to the appraisal by the

learned trial judge of the effect to be attributed to the way in which the parties conducted their

relationship and allowing for any advantage which the judge may have had, there does not, with

respect, seem to be any sufficient basis for the declaration of a constructive trust.

The authorities indicate that in cases of this kind the basis of the Court's entitlement to

intervene and declare a trust must be a finding of unconscionable conduct: see e.g. Baumgartner v.

Baumgartner (1987) l64 C.L.R. 137 at 148-149.

While it is true that "general notions of fairness and justice are relevant to the traditional

concept of unconscionable conduct" (Baumgartner at 148), "unconscionability" is not a description

automatically attracted whenever there is detected by a judge some departure from what he sees as

a broad principle of fairness: cf the dismissive reference to "idiosyncratic notions of what is just and

fair" in Baumgartner (supra) at 148. If it were otherwise, it might have to be concluded that

ordinary categories of legal ownership could be not much more than provisional in all domestic

relationships. Great uncertainty would result from the adoption of such a viewpoint and

considerable expense would be involved in resolving it A broad principle of community of property

is not automatically imposed upon domestic relationships even where both parties contribute

financially to the expenses involved in their relationships. The relevant unconscionability which has

been referred to must always be found as a basis for the Court's intervention if the parties' separate

legal titles are to be modified.

The judge in the present case has, in my respectful opinion, given undue weight to the

contribution made by the respondent to the relationship without sufficiently regarding the neutralising

effect of the corresponding contribution by the appellant during a long…

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 Turner v Dunne

Details

AGLC: Turner v Dunne [1996] QCA 272
Case: [1996] QCA 272
Decision Date: 20/08/1996

CaseChat Overview and Summary

In Turner v Dunne, the Court of Appeal considered a property dispute arising from the breakup of a de facto relationship. Heather Turner claimed an equitable interest in assets legally owned by John Dunne. The District Court had found in Turner's favour, declaring a constructive trust based on the parties' cohabitation. The appeal contested both the imposition of the trust and the 60/40 apportionment of the assets. The Court of Appeal found that the imposition of the constructive trust was justified, as Turner made substantial financial and non-financial contributions to the relationship, including helping to run a shop, maintaining the household, and improving properties. These contributions, coupled with the appellant's insistence that all property belonged solely to him, led to the conclusion that Turner's claim for an equitable interest was valid. While the Court acknowledged the difficulty in precisely quantifying the contributions, they upheld the trial judge's apportionment, finding it within a defensible range. The appeal was dismissed with costs.

Orders