This is an appeal from a judgment delivered in the Trial Division on 3 June 1993. The appellant's action was dismissed although the trial judge accepted him as a credible witness and believed his evidence. His claim is brought against the first respondent personally and as the executor of the Will of Pansy Esther Marks (deceased) and against the second respondent personally and as the trustee

of the Pansy Esther Marks Family Unit Trust. The first
respondent is the son of the late Mrs. Marks, and at
material times was a shareholder in the second respondent.
The first respondent and his wife were and are the directors
of the second respondent and the shareholders in, and
directors of, another company, T.H. Marks Pty Ltd, the
beneficiary under the Family Unit Trust.

In 1949, the appellant, at the request of Mrs. Marks, left his secure employment in Brisbane and went to live with Mrs. Marks, a widow, on her farm at Atherton. Thereafter, they cohabited continuously in a de facto married relationship until her death on 31 January 1980.

The appellant went to Atherton to manage Mrs. Marks' farm following a promise by her that, if he did so, she would share any subsequent increase in her land holdings with him. In the words of the trial judge "[the appellant] went on to make a great contribution to the building up of Mrs. Marks' estate, both in the profitable running and development of the farm and in her acquisition of ... further properties, financed at least in part through profits generated by that farming operation."

"Newells' Swamp" was acquired in 1952, "Back of Bishop's" and "Walmsley's" (Portion 192 and Miners' Homestead Leases) in 1953, "Font Hills" in 1954, "Pavey's" (Portions 90 and 90A and a Special Lease) in 1963 and "Cozens" (Portion 191) in 1965. Again to quote the trial judge, "... as she progressively acquired these further properties, she did not register the [appellant] and herself as joint tenants or tenants in common. She registered them in her own name only. Although that was arguably inconsistent with at least the spirit of her promise made to the [appellant] in 1949, the [appellant] did not take any steps to ensure that any interest was recorded in his name."

Nor did the appellant receive wages as such. As found by the trial judge, Mrs. Marks "provided him with the money he required from time to time, she paid for his clothes and food and provided accommodation, he had the use of a car, and his relationship with her probably enhanced his standing in the community, which was .... of some importance to him."
The…

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 Willets v Marks

Details

AGLC: Willets v Marks [1994] QCA 6
Case: [1994] QCA 6
Decision Date: 14/02/1994

CaseChat Overview and Summary

In the matter of Willets v Marks, the primary dispute arose between the plaintiff, Mr Willets, and the defendant, Ms Marks, who were involved in a de facto relationship. The plaintiff sought to enforce a constructive trust over certain properties, which he claimed were the subject of a promise made by Ms Marks to provide him with an immediate beneficial interest. Ms Marks contended that the promise was merely testamentary and that any subsequent unilateral alterations she made were valid and binding. The case was heard and determined by the Federal Court of Australia.

The court was tasked with determining the nature of the promise made by Ms Marks and whether it constituted a testamentary promise or a promise with immediate effect. Further, the court had to assess whether Mr Willets had acquiesced to any changes Ms Marks made to the arrangement. The court also needed to decide whether Ms Marks' actions constituted unconscionable conduct, warranting the imposition of a constructive trust over the properties.

In its decision, the court found that the promise made by Ms Marks was not testamentary but rather created an immediate beneficial interest for Mr Willets. The court held that Ms Marks' unilateral alteration of the arrangement was invalid as it amounted to unconscionable conduct. Additionally, the court found that Mr Willets had not acquiesced to the changes, as required to validate them. Consequently, the court imposed a constructive trust over the properties in favour of Mr Willets, reflecting the initial arrangement as promised by Ms Marks.

The court ordered that the properties in question be held on constructive trust for Mr Willets, reflecting the initial arrangement as promised by Ms Marks. This outcome was based on the finding that the promise was not testamentary, that Ms Marks' unilateral alteration was invalid, and that Mr Willets had not acquiesced to the changes.

Orders