Waterhouse v Power

[2003] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

Waterhouse v Power [2003] QCA 155

PARTIES:

MERRIN ELIZABETH WATERHOUSE
(plaintiff/appellant)
v
SHERIDAN MAREE POWER

(defendant/respondent)

FILE NO/S:

Appeal No 5192 of 2002

SC No 9149 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2003

JUDGES:

de Jersey CJ, Williams JA and Atkinson J

Separate reasons for judgment of each member of the Court, de Jersey CJ and Williams JA concurring as to the order made, Atkinson J dissenting in part

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – EQUITABLE ESTATES AND INTERESTS – CREATION – where Wavell Heights property owned by respondent – where appellant claimed contribution of more than one half to cost of groceries and associated household running expenses – where appellant contributed to enhancement of Wavell Heights property – where appellant paid sums indirectly to respondent – where appellant not accepted by trial Judge as creditable witness – whether a nexus between disparity of contributions and acquisition, enhancement and retention of the Wavell Heights property – whether a joint endeavour – whether appellant is entitled to one half share in Wavell Heights property in equity

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – where Chillingham property and four-wheel drive vehicle owned in joint names – where contributions to Chillingham property and four-wheel drive vehicle unequal – where appellant not accepted by trial Judge as creditable witness – whether constructive trust formed in appellant’s favour in each case

Baumgartner v Baumgartner (1987) 164 CLR 137, considered
Dunne v Turner [1996] QCA 272; Appeal No 196 of 1995, 20 August 1996, considered
Engwirda v Engwirda & Ors [2000] QCA 61; Appeal Nos 321 and 1860 of 1999, 10 March 2000, considered
Meehan v Fuller [1999] QCA 37; Appeal No 1323 of 1998, 26 February 1999, 17 November 1999, considered
Muschinski v Dodds (1984-1985) 160 CLR 583, distinguished

Warren v Coombes (1979) 142 CLR 531, considered

COUNSEL:

K C Fleming QC, with P A Kronberg, for the appellant

S L Doyle SC, with K E Downes, for the respondent

SOLICITORS:

Watts & Co for the appellant

Denise Maxwell, Solicitor for the respondent

1. de JERSEY CJ:  The appellant and the respondent lived together in a same-sex relationship for approximately eight years in the 1990's.  When the relationship commenced, the respondent owned a house at Wavell Heights.  The parties lived together in that house.  The appellant has unsuccessfully through these proceedings claimed a one half share in that property.  During their relationship, the parties acquired a property at Chillingham in Northern New South Wales and a four-wheel drive vehicle.  Each of those pieces of property was put into their joint names.  The appellant also unsuccessfully claimed the respondent's interest in that property.  (The Chillingham property had…