Irvine v Scaysbrook [2005] NSWSC 565

New South Wales Supreme Court

CITATION : Irvine v Scaysbrook [2005] NSWSC 565

HEARING DATE(S) : 9 & 10/06/05

JUDGMENT DATE : 10 June 2005

JUDGMENT OF : White J

DECISION : Proceedings dismissed.

CATCHWORDS : TRUSTS AND TRUSTEES - Plaintiff son and wife and defendant mother and stepfather - Plaintiffs claim that property owned by defendants is held on trust - Property purchased by defendants leased to plaintiffs - Allegation by plaintiffs that monthly payments to defendants were on account of mortgage not rent - Whether evidence supports the existence of an express trust - Whether there was a constructive trust based on the common intention of the parties - Whether there was detrimental reliance by the plaintiffs on such a common intention - Whether plaintiffs' expenditure on the property gave rise to an equitable charge - Held that the claims are not made out by the evidence.

Jurisdiction of Courts (Foreign Land) Act 1989 (NSW) LEGISLATION CITED : Conveyancing Act 1919 (NSW) Property Law Act 1974 (Qld)

Penn v Lord Baltimore (1750) 1 Ves Sen 444; 27 ER 1132 Baltimore Rochefoucald v Boustead (1897) 1 Ch 196 Grant v Edwards (1986) Ch 638 Green v Green (1989) 17 NSWLR 343 Parianos v Melluish (2003) 30 FLR 524 Commonwealth v Verwayen (1990) 170 CLR 394 CASES CITED : Baumgartner v Baumgartner (1987) 164 CLR 137 Morris v Morris [1982] 1 NSWLR 61 Pettitt v Pettitt (1970) AC 777 Charles Marshall Pty Limited v Grimsley (1956) 95 CLR 353 Calverley v Green 155 CLR 242 Bryson v Bryant 29 NSWLR 188 West v Mead (2003) NSWSC 161