Hibbins v Ingram [1999] NSWSC 1011

New South Wales Supreme Court CITATION : Hibbins v Ingram [1999] NSWSC 1011 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 3613/97 HEARING DATE(S) : 27, 28 September 1999 JUDGMENT DATE : 6 October 1999

PARTIES : Ian Ross Hibbins (P) Margaret Elaine Ingram (D) JUDGMENT OF : Acting Master Berecry

COUNSEL : (P) D C Tonge (D) J F Kildea SOLICITORS : (P) Robert James Tinsey (D) Snedden Hall & Gallop CATCHWORDS : Constructive Trust- No evidence of common intention; Homosexual relationship - Nature of dependency- Factors terminating relationship. ACTS CITED : Family Provision Act, ss 6(1)(d), 7, 9(1) and (3) Baumgartner v Baumgartner (1987) 164 CLR 137, 148 Ball v Newey (1988) 13 NSWLR 489 Benny v Jones (Young J 13 February 1990) Benny v Jones (1991) 23 NSWLR 559 Re Fulop (1987) 9 NSWLR 679, 681 CASES CITED : Howard v Andrews (Master Macready 31 July 1998) Kauri Timber Company (Tasmania) Pty Ltd v Reeman (1973) 128 CLR 177, 188-9 Mackenzie v Baddeley (Court of Appeal 3 December 1991) Maloney v Goodwin (Needham J 1 August 1989) Markulin v Drew (1993) DFC 95-140 Munro v Lake (McLelland J 8 February 1991) Petrohilas v Hunter (1991) 25 NSWLR 343, 346 DECISION : See para 59

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ACTING MASTER BERECRY Wednesday 6 October 1999

3613/97 - HIBBINS v INGRAM; ESTATE OF FRANCIS McKINNON WERNER DECEASED

JUDGMENT

1 ACTING MASTER: The plaintiff commenced proceedings on 14 August 1997 for an order that a constructive trust be imposed on the interest of the defendant as administratrix of the estate of the late Francis McKinnon Werner in respect of the property known as Lot 1 McAlister Road, Galston in favour of the plaintiff as to 12% of the interest of the defendant. Alternatively, a declaration that she holds an interest to the extent of 12% subject to a constructive trust in favour of the plaintiff, and thirdly, a declaration that the plaintiff is entitled to an equitable lien over the property to secure payment to the plaintiff of an amount equivalent to 12% of the interest of the defendant in the property. Further, that provision be made out of the estate of the deceased pursuant to s 7 of the Family Provision Act for the maintenance, education and advancement in life of the plaintiff. 2 The deceased was born on 25 December 1943. The plaintiff was born on 30 September 1962. They met each other in 1987 and by about March of 1988 the plaintiff moved into the deceased's home at 7 McAlister Road, Galston and commenced to cohabitate in a homosexual relationship. The parties continued to reside at that property and live in a homosexual relationship until 1994. 3 In June of that year, the plaintiff went on a holiday to Queensland and remained there until 26 November 1994. During October the deceased travelled to Cairns and spent 12 days with the plaintiff touring Cairns and the surrounding districts. 4 The plaintiff returned to the deceased's property on 26 November 1994 and continued to live with him until September 1995. In July 1995 the plaintiff had reconstructive knee surgery. After the operation, during the recuperation period, the plaintiff became frustrated and depressed with his lack of recovery. He says that the deceased encouraged him to return to Queensland to enable the recuperation period to continue in a better environment. 5 The plaintiff moved to Cairns in September 1995. Most of his personal effects remained at the Galston property. The parties kept some contact with one another during this period and it was planned that the deceased would join the plaintiff on 17 November 1995. At about this time the deceased was planning to retire. According to the plaintiff's evidence the deceased's intention was that he would move to Queensland and resume cohabitation with the plaintiff. 6 This did not happen. The deceased later informed the plaintiff he was unable to go to Queensland at that particular time because he had developed shingles on his chest and because of the death of a favourite dog he was too upset to travel. The deceased never made it to Queensland. On 17 February 1996 he had a telephone conversation with the plaintiff in which he informed the plaintiff that he had been diagnosed as having AIDS. 7 Subsequently some time between 17 and 18 February the deceased took his life. The plaintiff's evidence is that on being informed by a neighbour of the deceased of his death, he returned to Sydney and to the Galston house and stayed there until the funeral. Subsequently he returned to Cairns. 8 The plaintiff's evidence is that during 1987, he sold his interests in a property at Burragorang and applied the proceeds of sale and his savings towards the cost of the construction of the in-ground pool on the deceased's land. It is on the basis of the contribution made by the plaintiff towards the construction of the pool that the first three orders are sought in the summons. 9 The plaintiff's evidence is that by using his funds to build the in-ground pool, the value of the property was enhanced. He suggests that it was the intention that he have an interest in the property as a result of this contribution. However, there is no evidence that the plaintiff made any contribution of a financial nature towards the construction of the pool. Other than the statement in his affidavit that his funds were put to that purpose, there is no evidence corroborating that the moneys were spent on the construction. 10 The defendant requested the plaintiff to produce evidence of any records which would establish that any moneys that he had were used towards the construction of the pool. The plaintiff was unable to produce any documents or statements. The plaintiff annexed to one of his affidavits a draft agreement which it was said was intended to reflect the intention of the deceased and the plaintiff. However, neither the plaintiff nor the deceased signed the document. It was conceded on behalf of the plaintiff that no document could be found which had the deceased's signature on it. 11 The declaratory relief in relation to the equitable lien was not pressed at all. The constructive trust point was not vigorously pressed by the plaintiff. It was put no higher than it was something which should be taken into account when considering the Family Provision Act component of the summons. 12 In the absence of corroborating evidence I am not prepared to accept that whatever money the plaintiff had in 1987 it was used for the construction of the swimming pool on the deceased's land. The evidence does not disclose a common intention on behalf of the deceased and the plaintiff. It is difficult to see, having regard to the facts, that there was a common intention which would be unconscionable for the estate to deny. In Baumgartner v Baumgartner (1987) 164 CLR 137 at 148, the Court rejected a view that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair. In the absence of any evidence of common intention, any order sought for a declaration of a constructive trust must fail. 13 The application under s 7 of the Family Provision Act is brought on the basis that the plaintiff is an eligible person within the meaning of s 6(1)(d). Section 6(1)(d) provides as follows: