Janice Peisley v Patrick Curran (as executor of the estate of the late Arthur Francis Palmer) [2014] NSWSC 1333

Supreme Court New South Wales

Medium Neutral Citation: Janice Peisley v Patrick Curran (as executor of the estate of the late Arthur Francis Palmer) [2014] NSWSC 1333 Hearing dates: 26 September 2014 Decision date: 26 September 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Declaration of constructive trust Catchwords: TRUSTS AND TRUSTEES - Constructive trusts - Domestic relationships - No issue of principle Category: Principal judgment Parties: Janice Peisley (Plaintiff) Patrick Curran (as executor of the estate of the late Arthur Francis Palmer) (Defendant) Representation: Counsel: D Stretton (Plaintiff) Solicitors: Nelson, Keane & Hemingway (Plaintiff) Enrights Solicitors (Defendant) File Number(s): 2013/105954 Publication restriction: No

EX TEMPORE Judgment 1HIS HONOUR: These proceedings came before me today, as the applications judge, initially on the basis that I was to be invited to make consent orders in relation to certain property being held by the estate of the late Arthur Francis Palmer (the "Estate") on constructive trust for the plaintiff, Janice Valerie Peisley. 2When the papers came before me in chambers, I required the matter to be listed in open Court. This was because in the ordinary course the Court will not make consent declarations, particularly in relation to property, in the absence of being satisfied that there is evidence to support the making of the declarations sought. 3When the matter was called on for hearing, Mr D Stretton of Counsel appeared for Ms Peisley. Mr Slattery, solicitor, appeared by telephone for the defendant, Mr Curran, as executor of the Estate. 4I was informed by Mr Slattery that Mr Curran no longer consented to the orders being made. The basis for the withdrawal of his consent was a concern in relation to the costs orders to be sought because the Estate was not in funds to defend the proceedings. I asked Mr Slattery what he proposed should happen today. He informed me that, in a formal sense, his position was in the nature of a submitting appearance save as to costs and that he otherwise did not want to be heard. 5Taking those matters into account, I excused Mr Slattery from further attendance and stood down the matter to be dealt with at the conclusion of the Applications List. 6On the resumption of the application, it became apparent that what the Court was in fact doing was proceeding to a final hearing of Ms Peisley's claim for relief as set out in her amended statement of claim filed 21 August 2014. There has been no defence filed to that amended statement of claim and I have dealt with the matter this morning on the basis of Mr Slattery's advice that his client submits to any order of the Court save as to costs. 7Mr Stretton has read the affidavit of Janice Valerie Peisley sworn 5 April 2013. In that affidavit Ms Peisley sets out the basis on which she and the late Mr Palmer became the registered proprietors of the property at Dubbo which is the subject of these proceedings (the "Property"). The Court is satisfied by Ms Peisley's evidence that the common intention of her and the late Mr Palmer was that Ms Peisley was to be the absolute owner of the Property. The Property was originally acquired by Mr Palmer and Ms Peisley as joint tenants. This was because Ms Peisley could not get a bank loan in her own right. When Mr Palmer's affairs came under management (after the relationship with Ms Peisley had ended) the joint tenancy was unilaterally severed by the then Protective Commissioner. 8The Property is Ms Peisley's home. She has made all the payments in relation to it for many years. In the circumstances set out in Ms Peisley's affidavit, the Court is satisfied in accordance with well-known principles concerning the acquisition of property with a common intention as to its ownership that Ms Peisley is entitled to a declaration that what is now the Estate's interest as tenant in common in the Property is held on constructive trust for Ms Peisley. 9The Court will make the declarations and orders sought in the document that was initially presented to the Court as a consent order. 10Insofar as costs are concerned, costs should follow the event. The Court notes, however, that the orders proposed by Ms Peisley are the parties' costs, as agreed or assessed on the ordinary basis, are to be paid out of the Estate. Mr Slattery expressed concern that Mr Curran as executor may be undertaking some form of personal liability in relation to costs. It has been made clear to the Court on behalf of Ms Peisley that her intention, evidenced by the costs order which she seeks, is that whatever costs she may be entitled to are limited to what can be recovered from the Estate and that she has no intention of visiting any liability for costs or otherwise on Mr Curran in his personal capacity. 11For these reasons I will make the orders set out in the document which I have re-titled "Final Orders" which I initial, date today and place with the papers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2014