FEDERAL CIRCUIT COURT OF AUSTRALIA
| WESTON v McAULEY | [2017] FCCA 1 |
| Catchwords: EQUITY – Claimed presumption of a trust in favour of the bankrupt – rebuttal of the presumption by evidence or the presumption of advancement. |
| Legislation: Bankruptcy Act 1966 (Cth) Family Law Act 1975 (Cth), s.79 |
| Cases cited: Baumgartner v Baumgarnter (1987) 164 CLR 137 Sharkey v Nissi [2015] NSWSC 1266 Thwaites v Ryan [1984] VR 65 |
| Applicant: | PAUL WESTON |
| Respondent: | DIANNE MCAULEY |
| File Number: | SYG 2182 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Marshall SC, with Ms I Hoskinson |
| Solicitors for the Applicant: | Mills Oakley |
| Counsel for the Respondent: | Mr D Cook SC, with Mr S Lipp |
| Solicitors for the Respondent: | DPR Legal |
ORDERS
The application as amended on 19 April 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2182 of 2015
| PAUL WESTON |
Applicant
And
| DIANNE McAULEY |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant is Paul Weston (trustee), who is the trustee of the bankrupt estate of John McDonald McAuley (bankrupt), the husband of the respondent, Dianne McAuley. By his amended application and amended statement of claim filed on 19 April 2016, the trustee sought relief in relation to two separate sums. The first sum, $385,578 is the amount equal to half the proceeds of the sale of a property at 11 Westminster Drive, Castle Hill, New South Wales (property), which was the former matrimonial home of the bankrupt and Mrs McAuley. The trustee claims that that sum vests in him as trustee of the bankrupt estate.
The trustee also sought a second sum, $185,625, which represents what the trustee contended was Mrs McAuley’s required contribution to the payment of mortgage instalments on a home loan over the property. The trustee had claimed that Mrs McAuley had paid nothing on the loan but that claim was abandoned at the trial of this matter.
There remains a single issue to resolve which is the proper characterisation of the proprietary interest in the former matrimonial home and accordingly, the entitlement of the parties to the proceeds of the sale of it. The trustee claims that the bankrupt estate has an equitable interest in 50 per cent of those proceeds of sale. The trustee’s position is based on the fact of a…
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CaseChat Overview and Summary
The court was required to determine the proper characterisation of the bankrupt's proprietary interest in the former matrimonial home and, consequently, the respective entitlements of the trustee and the wife to the sale proceeds. This involved considering whether a presumption of a resulting trust in favour of the bankrupt arose, and if so, whether that presumption could be rebutted by evidence or the presumption of advancement.
Judge Driver reasoned that the High Court's decision in *Calverley v Green* remained relevant, particularly concerning the presumption of advancement. The judge noted that where two or more persons contribute unequal shares to the purchase of property held in joint names, a presumption arises that the property is held on trust for them as tenants in common in proportion to their contributions, unless a relationship giving rise to a presumption of advancement exists. The presumption of advancement typically applies to purchases by a husband in his wife's name, or a father in a child's name. The judge found that this presumption could be displaced by evidence demonstrating a common intention for the parties to share an equal interest, or that the disproportionate contributor intended an equal interest despite their contribution. The court also considered that the relevant intention is an objective, manifest intention inferred from the parties' words and conduct, rather than an uncommunicated subjective intention. The judge distinguished the present case from *Cummins* on two bases: the presumption of advancement and the actual intention of the parties.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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