Dunstan v Proudman [2001] NSWSC 912

New South Wales Supreme Court

CITATION : Dunstan v Proudman [2001] NSWSC 912 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4911/00 HEARING DATE(S) : 7, 8 August 2001 JUDGMENT DATE : 18 October 2001

William John Dunstan (P1) PARTIES : David John Proudman (P2) Diane Lynette Proudman (D) JUDGMENT OF : Austin J

COUNSEL : G M McGrath (P) T Hodgson (D) SOLICITORS : Packer & Austin (P) Vagg & Reynolds (D) CATCHWORDS : EQUITY - trusts, charges and proprietary estoppel - friend and wife move in with old man and pay for extension to his house, pursuant to oral agreements, and rent out their house - no promise representation or conduct to found trust, charge or proprietary estoppel. CASES CITED : Malsbury v Malsbury (1982) 1 NSWLR 226; Public Trustee v Kukula (1990) 14 FamLR 97 DECISION : Declaration, as sought by plaintiffs, that the first plaintiff holds the Haberfield property as absolute owner, free of any interest, legal or equitable, including any equitable charge, in favour of the defendant.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION AUSTIN J THURSDAY 18 OCTOBER 2001 4911/00 WILLIAM JOHN DUNSTAN & 1 OR V DIANE LYNETTE PROUDMAN Judgment

HIS HONOUR : Introduction 1 The first plaintiff is a retired university lecturer aged about 78 years. He is the registered proprietor of a house and land at 9 Crescent Street Dobroyd Point, a suburb of Sydney, which he frequently refers to as Haberfield. Following his lead, I shall call this "the Haberfield house". 2 The families of the first and second plaintiffs have been associated for over five generations. The second plaintiff is aged about 46 years and has been a close friend of the first plaintiff since approximately 1965, when he was 9 years old. When his father died five years later, the first plaintiff helped to look after him. The first plaintiff has no immediate family and he describes the second plaintiff as his "social son", and as "a certain friend in uncertain times". 3 The defendant is the second plaintiff's estranged wife. Their marriage broke down in about February 2000. They have two children, Matthew (aged about 17) and Holly (aged about 14). The first plaintiff was Matthew's godfather, and he assisted at the baptism of Holly. He has remained close to the children since that time. 4 The case arises out of the living arrangements made by the parties. The second plaintiff and the defendant occupied the Haberfield house with the first plaintiff from early 1993 until July 2000, when the second plaintiff moved out in order to live with the woman with whom he had developed a relationship (whom I shall identify as "Jenny"), although he says he was separated from his wife from February 2000. When the proceedings were commenced, the first plaintiff shared the Haberfield house with the defendant in tense circumstances, and the plaintiffs sought to recover possession of the property for the first plaintiff. Subsequently the defendant moved out of the Haberfield house, but a dispute remained as to whether the arrangements and conduct with respect to occupation of the property have given rise to any proprietary interest on the part of the defendant. That is the issue to which these reasons for judgment are directed. 5 In their statement of claim the plaintiffs sought, in addition to the order for possession of the Haberfield house, which they no longer require, a declaration that the first plaintiff holds the Haberfield house as absolute owner free of any interest, legal or equitable, including any equitable charge. In the alternative, they seek a declaration as to the interests held by each party in the Haberfield house. The statement of claim makes assertions about the arrangements under which the parties came to occupy the Haberfield house together, which are denied by the defendant in her defence. Although she has not filed a cross-claim, her counsel contended at the hearing that she was entitled to an equitable proprietary interest in the Haberfield house on the basis of an oral partly performed agreement, or a common intention between the parties that she would derive a proprietary interest out of the arrangements for occupation of the house, or a proprietary estoppel arising out of representations made by the plaintiffs and acted upon by her to her detriment.