Hepworth v Hepworth [1963] HCA 49

High Court of Australia Kitto, Taylor and Windeyer JJ. Hepworth v Hepworth [1963] HCA 49

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 14 Kitto and Taylor JJ.

This is an appeal from an order of the Supreme Court of South Australia which declared that certain real property of which the appellant is the registered proprietor is held by her in trust for herself and her husband, the respondent, as tenants in common in equal shares subject, in the case of the respondent's interest, to a charge in favour of the appellant for the payment of £400 together with interest thereon for a specified period. The real property in question consists of a block of land in a suburb of Adelaide together with a cottage erected thereon which from the time of its erection in 1946 until comparatively recently was the matrimonial home of the parties.

The parties were married in 1939 and immediately thereafter made their home at the residence of the appellant's parents. They continued to live there together until the second half of 1942 when the respondent enlisted in the Royal Australian Air Force. During his period of service, which ended upon his discharge in September 1945, the appellant continued to live with her parents but in 1946, after the erection of the dwelling in question, they made their home there.

The land upon which the home was built was purchased early in 1942 for the sum of £170 and it was the appellant's case before the learned judge of first instance that she had purchased the land with moneys provided by her father and that, later, she made all of the arrangements for the erection of the dwelling. She, alone, she says, "contacted the builder, settled the plans and negotiated a loan under mortgage from the Savings Bank of South Australia". But, according to her, the Savings Bank was unwilling to make any advance to her unless her husband signed the mortgage as a guarantor. It was because of this circumstance, she says, that her husband became a guarantor and he agreed to execute the mortgage in that capacity. But she, the appellant, "had to see that all payments were made". The appellant further claimed that the respondent "did not subscribe anything towards the purchase of the land or the payment for the building" nor "anything towards the rates and taxes and upkeep of the land and improvements".