Burch v Cone [2009] NSWSC 1430

New South Wales Supreme Court

CITATION : Burch v Cone [2009] NSWSC 1430

HEARING DATE(S) : 10/12/09

JUDGMENT DATE : 17 December 2009

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : See paragraph 38

CATCHWORDS : EQUITY - resulting trust - where property purchased with money belonging solely to plaintiff but title taken by plaintiff and defendant jointly - no relationship etween the parties - whether plaintiff agreed to give defendant an interest in the property - held she did not - resulting trust for plaintiff of interest held by defendant - EQUITY - exoneration - where property found to be beneficially owned by plaintiff mortgaged to secure loan made to plaintiff and defendant - where loan moneys applied in part for plaintiff's sole benefit in part for defendant's sole benefit and in part for their joint benefit - plaintiff entitled to be indemnified by defendant for proportion of liability under mortgage

CATEGORY : Principal judgment

Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 CASES CITED : Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Parsons v McBain [2001] FCA 376; (2001) 109 FCR 120

PARTIES : Cheryl Anne Burch - Plaintiff Anthony Charles Cone - Defendant

FILE NUMBER(S) : SC 5861/08

COUNSEL : Mr A J McInerney/Mr D J Barnett - Plaintiff Mr P R Glissan - Defendant

SOLICITORS : Foott, Law & Co - Plaintiff McNamara James & O'Connor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

THURSDAY, 17 DECEMBER 2009

5861/08 CHERYL ANNE BURCH v ANTHONY CHARLES CONE JUDGMENT 1 The claims advanced by Cheryl Anne Burch ("plaintiff") relate mainly to a property of some 60 acres at Coutts Crossing, near Grafton. She and Anthony Charles Cone ("defendant") are registered as the proprietors of the property as tenants in common in equal shares. They were initially registered proprietors as joint tenants but the plaintiff took action to sever the joint tenancy. 2 The plaintiff claims a declaration that the defendant holds his undivided one-half share in the property upon trust for her and an order that he transfer that interest to her. 3 It is the contention of the plaintiff that she provided the whole of the purchase moneys for the Coutts Crossing property, with the result that there was, from the outset, a resulting trust of the defendant's interest in favour of her. It is relevant to note immediately that the parties are not married to one another and have never been in a relationship of de facto marriage; nor is there any other family relationship between them. 4 The process of fact-finding is assisted in this case by a large number of admissions made by the defendant. The following facts are uncontroversial: 1. In 2002, the plaintiff purchased a property at Cedar Creek near Tambourine Mountain in Queensland. She purchased this property with her own money. 2. In about April 2004, the defendant and three of his children became boarders or lodgers at the Cedar Creek property. 3. The defendant performed various work around the house. 4. The plaintiff sold the Cedar Creek property in October 2005 for $365,000. She received from the sale cheques totalling $359,932.29. 5. On 21 November 2005, the plaintiff and the defendant entered into a contract for the purchase of the Coutts Crossing property for $225,000. Settlement took place on 16 December 2005. The plaintiff and the defendant took title as joint tenants. 6. The plaintiff is not clear as to the reason for joint tenancy. She thinks that she told Mr Flynn (the solicitor who acted on the purchase) that she did not want the property to go to the defendant if she died. She had that situation rectified when she consulted the solicitor who acted in these proceedings and became aware that the situation was one of joint tenancy. She then took steps to have the title converted from joint tenancy to tenancy in common. This conversion occurred on 8 November 2007. 7. In about late 2007, the plaintiff moved to a property at Pottsville. She has not lived at the Coutts Crossing property since that time. 8. On or about 7 February 2006, the plaintiff and the defendant borrowed $50,000 from Secure Funding Pty Ltd and mortgaged the Coutts Crossing property as security. On or about 16 January 2007, the loan was increased to $80,000. 9. The borrowed moneys were spent partly (as to $24,090.42) for the joint purposes of the plaintiff and the defendant, partly (as to $16,554) for the plaintiff's separate and exclusive purposes and partly (as to $18,355.58) for the defendant's separate and exclusive purposes. 5 The defendant also admitted that, during the time he and his children were boarders or lodgers at Cedar Creek, he had paid no money as rent or board to the plaintiff. His counsel applied at trial for leave to withdraw that admission. Evidence was received from the defendant on that matter. It was accepted that my decision on the question of withdrawal should be given as part of my judgment on the proceedings as a whole. I therefore digress to deal with that matter. 6 The defendant's admission that he paid the plaintiff no money as rent or board while he and his children lived at her Cedar Creek house was clearly and expressly made by affidavit. It was submitted, however, that "there may have been a misunderstanding"; and it was for that reason that counsel for the defendant was permitted to lead evidence from him. The evidence in chief, so far as relevant was: "Q. I have just taken you through her affidavit where she said, 'Tony did not pay any monetary sum as board'. I have drawn to your attention the fact that you have agreed with that in your affidavit and I am asking you now do you still agree with that? A. No, I don't.