Little v Saunders [2004] NSWSC 655

New South Wales Supreme Court

CITATION : Little v Saunders [2004] NSWSC 655 HEARING DATE(S) : 16 July 2004 JUDGMENT DATE : 16 July 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Trusts not established. Entitlement to indemnity costs not established.

CATCHWORDS : TRUSTS - purchase by de facto couple of house, with unequal contributions of purchase price - whether presumption of resulting trust rebutted - whether constructive trust arises - PROCEDURE - costs - whether indemnity costs order to be made on basis of "offer of compromise" or Calderbank letter (no question of principle) LEGISLATION CITED : Real Property Act 1900 Baumgartner v Baumgartner (1987) 164 CLR 137 Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060 CASES CITED : Calverley v Green (1984) 155 CLR 242 Muschinski v Dodds (1985) 160 CLR 583 Tickell v Trefleska Pty Ltd (1990) 25 NSWLR 353 Timothy Ross Little - First Plaintiff PARTIES : Ronald Garry Dennehy - Second Plaintiff Shane Edward Saunders - Defendant FILE NUMBER(S) : SC 1976/04 COUNSEL : S Philips - Plaintiff M Lawson - Defendant SOLICITORS : Boyd House & Partners - Plaintiff Stacks/Northern Rivers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

FRIDAY 16 JULY 2004

1976/04 TIMOTHY ROSS LITTLE AS EXECUTOR OF THE ESTATE OF THE LATE SUSAN KATHLEEN BENSON & ANOR v SHANE EDWARD SAUNDERS JUDGMENT – Ex Tempore (Revised 21 July 2004) 1 HIS HONOUR: This is a claim which is brought by the executors of the estate of the late Susan Kathleen Benson. Ms Benson was the registered proprietor as joint tenant with Shane Saunders, the defendant in this case, of a property located at 3 McAllisters Road, Bilambil Heights, which is on the north coast. The plaintiffs' claim is that the property is held on trust for the plaintiffs as executors, for a proportion equal to the proportion of the purchase price which Ms Benson provided. 2 Ms Benson and Mr Saunders first met in around May of 2001. By August of 2001 they were discussing living together and purchasing a house together. They inspected various properties, including the property at Bilambil Heights which they ultimately bought. In September of 2001, they travelled to the United States together, and this trip marked the beginning of them living together. 3 Upon their return, they continued arrangements for buying a house together. Mr Saunders delegated to Ms Benson most of the work related to both finding a property, and also carrying through the conveyancing formalities. 4 Mr Paul Sande of Realty Conveyancing Services, is a licensed conveyancer. Ms Benson and Mr Saunders decided to deal with him in connection with their purchase. Ms Benson had dealt with Mr Sande concerning the purchase of a home unit at Currumbin, some years before, and had also dealt with Mr Sande concerning the subsequent sale of that home unit. 5 On 12 October 2001 Mr Sande's firm sent to Ms Benson and Mr Saunders a document which was a pro-forma set of instructions for Mr Sande's firm to act for them in connection with the conveyance, and a fees agreement. The documentation sent also included a separate page, headed "Joint Tenants - Tenants in Common". That page said: "When land is transferred to more than one person, they can be registered on the title as either Joint Tenants or Tenants in Common. JOINT TENANTS If you register as Joint Tenants, then upon the death of one Joint Tenant, the survivor (or survivors) must register the death upon the title. Upon registration of the death, the ownership vests in the surviving Joint Tenant(s). Where no reason exists to the contrary, husband and wife for example, would ordinarily register in this way. Each Joint tenant owns an equal share in the whole of the land. TENANTS IN COMMON Where the above is not desirable, registration can be effected as Tenants in Common. On the death of a Tenant in Common, their executor would apply to the Court for probate of the Will. When this is granted, the estate in the land is transmitted to the executor who then transfers it to the beneficiaries named in the Will. The use of Tenants in Common is most likely to occur between unrelated parties who wish for their interest in the property to pass onto their beneficiaries and not their co-land owner or, in the case of persons contributing different proportions for the purchase of the land, they may wish to hold shares in the same ratio as the amounts contributed to the purchase. We hereby acknowledge that we have read and understood the nature of the above and hereby direct that the Transfer reflect our holding as · JOINT TENANTS · TENANTS IN COMMON IN THE FOLLOWING SHARES · Delete one of the above and specify shares if not equal." 6 On 22 October 2001, Ms Benson and Mr Saunders attended the office of Mr Sande, and spoke to him. They brought with them the documents which they had been sent on 12 October 2001. The letter of instructions to act was signed by both Ms Benson and Mr Saunders, and it was dated 21 October 2001. The document relating to joint tenants or tenants in common bears the signatures of Ms Benson and Mr Saunders. Also, the alternative in it relating to "Tenants in common in the following shares" is crossed out. The document was signed by Ms Benson and Mr Saunders either before they came to see Mr Sande on 22 October, or in the course of their meeting with him. It was handed over to Mr Sande, in its signed form, in the course of that meeting. 7 In the course of that meeting Mr Sande then asked them: "Do you understand the difference between the holdings of joint tenancy or tenancy in common? You have indicated joint tenants which means that on the death of either party the property is automatically transferred to the survivor".