Jones v Jones [2008] NSWSC 270

New South Wales Supreme Court

CITATION : Jones v Jones [2008] NSWSC 270

HEARING DATE(S) : 03.03.08, 04.03.08, 05.03.08

JUDGMENT DATE : 31 March 2008

JUDGMENT OF : Nicholas J

DECISION : par 70

CATCHWORDS : TRUSTS – constructive trusts – real property purchased and registered in defendant's name – whether oral agreement between parties as to beneficial ownership of the property – whether actual intention on part of defendant to hold his interest upon trust for plaintiff as to one half share inferred from conduct of parties – breakdown in family relations – whether the property held on trust by defendant for the parties in equal shares - no questions of general principle involved - case turns on particular facts

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

CATEGORY : Principal judgment

Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 CASES CITED : Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 Green v Green (1989) 17 NSWLR 343

PARTIES : Evonne Anette Jones – plaintiff Alfred William Jones – defendant

FILE NUMBER(S) : SC 6210/06

COUNSEL : C A Vinden – plaintiff D A Allen – defendant

SOLICITORS : Mason Lawyers – plaintiff Bilbie Dan – defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Nicholas J

31 March 2008

6210/06 Jones v Jones JUDGMENT 1 His Honour: In these proceedings the plaintiff seeks a declaration that the defendant holds his interest in a property at Millers Forest (the property) on trust as to one half for her. The defendant is the registered proprietor of the property. The plaintiff also seeks an order for its sale under the Uniform Civil Procedure Rules 2005, Pt 27, r 27.1, and ancillary relief. 2 The plaintiff is the sister of the defendant and Victor Daniel Jones (Daniel). Each is unmarried, and of middle age. Their father died in about 1990 aged 65. For a long time they lived together with their mother, Joan Mavis Jones (Mrs Jones), in the family home at Swansea (the home). The relationship was close and mutually supportive. The defendant left the home in acrimonious circumstances on about 27 March 2005 to live elsewhere. The others have remained there. 3 The plaintiff, Daniel, and their mother are pensioners. The defendant has been in employment most of his life, and presently works as a deck hand on a tug boat. 4 In summary, the plaintiff claims that in about August 1997 she and the defendant agreed to purchase the property for the price of $60,000 as an investment, to be owned by them in equal shares. She claims that she paid him the total sum of $30,000 in cash for her share, and that it was agreed that, as she was a pensioner, he should be the registered proprietor. 5 The defendant denies any agreement or payment as claimed, and says that the property was bought by him with his own money. Background 6 The following matters are common ground and, in any event, are established on the evidence. 7 In August 1997 the defendant agreed to purchase from Mr Ern Griffiths the property for the price of $60,000. 8 On 18 September 1997 Colonial State Bank offered the defendant a home loan of $60,000 to be secured by a mortgage over the property and another investment property which he owned at Swansea. 9 On 19 September 1997 the defendant retained Mr John Cobb, solicitor, to act on the purchase of the property, and signed the memorandum of mortgage over both his properties. 10 On 19 November 1997 G E Sault & Sons Pty Ltd (the builder) provided a quotation addressed to "Mrs Jones" for roofing work at the property for the sum of $4,600. 11 On 2 December 1997 the defendant paid $1,790 for tanks for the property. 12 On 5 December 1997 the builder issued a receipt for the sum of $2,000 paid as a deposit for the roofing work. 13 On 10 December 1997 a home warranty policy was issued to the defendant for the work to be carried out on the property by the builder. 14 On 12 December 1997 the defendant commenced payments under the mortgage from his account with Colonial State Bank. 15 On 2 February 1998 the transfer of the property from Mr Griffiths to the defendant, and the mortgage over both properties to secure the sum of $60,000, were registered. 16 On 20 August 1998 the defendant's employment with Delta Electricity ended as a voluntary redundancy. 17 On 2 September 1998 the defendant invested the sum of $65,000 from the proceeds of his leave and other entitlements in an annuity plan. 18 On 15 September 1998 he received a superannuation payment in the sum of $168,345.57. 19 In about September 1999 the property was let at a rental of $120 per week. The rent was paid into a separate account operated by the defendant with Colonial State Bank until 2 June 2001, and thereafter into an account with Commonwealth Bank, Belmont, which he operated for this purpose. 20 On 7 April 2001 the plaintiff agreed to buy a Mazda Astina motor vehicle from a dealer for the price of $22,295. Allowing for the deposit of $5,000, and the trade-in on another motor vehicle for $3,500, the balance payable was $13,795. This amount was paid by the plaintiff on 23 April 2001. 21 On 20 April 2001, when the balance was $11,420.64, the defendant withdrew the sum of $6,000 from the rent account and gave it to the plaintiff which she used to pay for the motor vehicle. 22 In February 2002 Mrs Jones suffered a debilitating stroke. The defendant provided her with assistance which entitled him to a carer's pension. Between 2 April 2002 and 1 April 2005 this pension was paid into another account which he had opened with Commonwealth Bank, Belmont on 7 August 2001. 23 On 14 March 2002 the plaintiff and Daniel authorised the defendant to operate their accounts with the Commonwealth Bank. 24 On 27 March 2005 the defendant left the home and terminated his relationship with the plaintiff, Daniel and Mrs Jones. He has had no social contact with them since. 25 On 12 August 2005 the plaintiff lodged a caveat over the property, claiming a one half interest described to be "… under a constructive trust entered into at the time of purchase". 26 On 16 August 2006 the mortgage over the property was discharged by the defendant. The issue 27 The issue for decision is whether there was an oral agreement between the parties relating to the beneficial ownership of the property or, alternatively, whether there should be inferred from the conduct of the parties an actual intention on the part of the defendant as registered proprietor to hold his interest upon trust for the plaintiff as to one half share. The question, therefore, is one of fact. 28 The time of the acquisition of the property is the material time for determining the beneficial interests of the parties ( Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, pp 252, 262). The circumstances in which a court of equity will intervene to declare the existence of a beneficial interest in property were considered in Green v Green (1989) 17 NSWLR 343. With reference to Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, Gleeson CJ said (p 353): "The most common case of intervention of that kind to be found in the law reports is the case where the person in whose favour a constructive trust is found has, directly or indirectly, made a financial contribution towards the cost of acquiring, improving, or maintaining the property in question."