Evans & Ors v Evans & Anor [2004] NSWSC 184

New South Wales Supreme Court

CITATION : Evans & Ors v Evans & Anor [2004] NSWSC 184 HEARING DATE(S) : 16/02/04, 17/02/04, 18/02/04, 19/02/04, 20/02/04 JUDGMENT DATE : 23 March 2004 JURISDICTION: Equity JUDGMENT OF : Cripps AJ DECISION : Declaration of Constructive Trust

CATCHWORDS : Contract - Constructive Trust - Remedy LEGISLATION CITED : Conveyancing Act 1919 FIRST PLAINTIFF Laura Grace Evans SECOND PLAINTIFF Susan Heather Calderbank THIRD PLAINTIFF Timothy Martin Grace Evans FOURTH PLAINTIFF PARTIES : Peter James Evans FIFTH PLAINTIFF Adam Lewis Evans

FIRST DEFENDANT Andrew Grant Evans SECOND DEFENDANT Dianne Grace Evans FILE NUMBER(S) : SC 3778/01 PLAINTIFFS COUNSEL : Mr R J Powell SC with Mr I G A Archibald DEFENDANTS Mr A M Colefax PLAINTIFFS SOLICITORS : Farrell Lusher DEFENDANTS Walsh & Blair

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CRIPPS AJ

Tuesday 23 March 2004

3778/01 LAURA EVANS & ORS v ANDREW EVANS & ANOR JUDGMENT 1 HIS HONOUR: The first-named plaintiff (Laura Evans) is the mother of the second, third, fourth and fifth named plaintiffs (being respectively Susan Calderbank, Timothy Evans, Peter Evans and Adam Evans). She is also the mother of the first named defendant (Andrew Evans) and the mother-in-law of the first named defendant's wife, the second named defendant (Dianne Evans). 2 In a statement of claim filed in the Equity Division of the Supreme Court in July 2001 it was alleged, inter alia, that Andrew and Dianne Evans acquired a property known as Evanwood from the first named plaintiff Laura Evans and held it on trust for the other children of Laura Evans (being the second, third, fourth and fifth named plaintiffs as well as the first named defendant). 3 Andrew and Dianne Evans became the owners of Evanwood as joint tenants on 20 March 1997. It was transferred to them by Laura Evans who inherited it from the estate of the late Peter Evans her former ex husband. 4 The plaintiffs' case is that Andrew and Dianne Evans acquired the property for no consideration (or at least for consideration which was instantly forgiven upon the signing of the contract) in circumstances entitling the plaintiffs to a declaration that Evanwood is held in trust for Susan, Timothy, Peter and Adam Evans (as well as Andrew Evans) and an order that Evanwood vest in trustees upon statutory trust for sale pursuant to Div 6 of Pt 4 of the Conveyancing Act 1919. In the alternative they claim that each of the plaintiffs (other than Laura Evans) are entitled to damages by reason of the repudiation by the defendants of a contract entered into by them – that being that all members of the family agreed, at Laura's insistence, that Evanwood should go to Andrew subject to Andrew paying each of his siblings one-fifth of the value of Evanwood as at 7 September 1996 on or before 7 September 2000. 5 Before dealing with the plaintiffs' case I should note that it was also alleged in the statement of claim that in or about July 1997 Laura Evans entered into a farming partnership with Andrew and Dianne Evans and that the Court should order that the Master in Equity should take accounts and inquire into partnership dealing. A partnership between Andrew and Dianne Evans on the one hand and Laura Evans on the other was entered into about the middle of 1997 and there has since been a falling out between them. However the partnership claim was not pressed in these proceedings. 6 Andrew and Dianne Evans deny they hold the land on trust as alleged or that they are under any obligation in law or in equity to account to Andrew's siblings arising out of their ownership of Evanwood. They assert that Evanwood was transferred to them free of any conditions and that neither was a party to any contract as alleged by the plaintiffs.