West v Mead [2003] NSWSC 161

New South Wales Supreme Court

CITATION : West v Mead [2003] NSWSC 161 HEARING DATE(S) : 6/3/03-10/3/03 JUDGMENT DATE : 4 April 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Constructive trust imposed on increase in equity during course of relationship in property not that in which parties lived, subject to right of occupancy of person presently residing in that property

CATCHWORDS : TRUSTS - constructive trusts - arising on termination of de facto relationship - effect of payments being made from joint bank account for purposes for which both parties approve - effect of one partner owning property prior to commencement of relationship, the equity of which is increased during the relationship - whether constructive trust can be imposed on property not the home in which parties lived - effect of improvements being made to home in which parties lived - FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - other matters - imposition of constructive trust on termination of relationship - EQUITY - equitable estates and interest - joint bank account - rights of account holders to money in account, money withdrawn from account, and property purchased with money drawn from account - EVIDENCE - miscellaneous matters - Browne v Dunn (1893) 6 R 67 - effect of failure to cross examine on evidence contained in affidavit served on opposite party before trial, and replied to by that party LEGISLATION CITED : Property (Relationships) Act 1984 Property (Relationships) Legislation Amendment Act 1999 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Atwood v Maude (1868) LR 3 Ch App 369 Baumgartner v Baumgartner (1987) 164 CLR 137 Balfour v Balfour [1919] 2 KB 571 In Re Bishop; National Provincial Bank Ltd v Bishop [1965] Ch 450 Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 Browne v Dunn (1893) 6 R 67 Croton v R (1967) 117 CLR 326 Ebner v Official Trustee in Bankruptcy, in the matter of Ebner [2003] FCA 73 Fadden v Deputy Federal Commissioner of Taxation (1943) 68 CLR 76 Flower & Hart v White Industries (QLD) Pty Ltd (1999) 163 ALR 744 In the Marriage of Fogarty (1976) 27 FLR 257 Forgeard v Shanahan (1994) 35 NSWLR 206 CASES CITED : Gage v King [1961] 1 QB 188 Giumelli v Giumelli (1999) 196 CLR 101 Heaton v Luczka New South Wales Court of Appeal, 3 March 1998, unreported Hibberson v George (1989) 12 FamLR 725 Jones v Maynard [1951] Ch 572 In the Marriage of L C & T C (1998) 23 FamLR 75 Lyon v Tweddell (1881) 17 ChD 529 Marelic v Comcare (1993) 121 ALR 114 Muschinski v Dodds (1985) 160 CLR 583 Palmer v Bank of New South Wales (1975) 133 CLR 150 In the Marriage of EH & K Pickard (1981) 7 FamLR 636 Re Reid; Clark v Reid (1998) 85 FCR 452 Russell v Scott (1936) 55 CLR 440 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 Stern v National Australia Bank Limited (2000) 171 ALR 192 PARTIES : Susan Ellen West - Plaintiff Julie Mead - Defendant FILE NUMBER(S) : SC 4940/99 COUNSEL : M Bateman - Plaintiff L Aitken - Defendant SOLICITORS : John Hunter - Plaintiff Gray & Perkins - Defendant