Lorretta Kistmah Craig and Ors v Kia Silverbrook and Ors [2013] NSWSC 1687

Lorretta Kistmah Craig and Ors v Kia Silverbrook and Ors [2013] NSWSC 1687

The plaintiffs failed to establish, on the balance of probabilities, that there was a joint relationship or endeavour involving a pooling of resources with the respondents such that it would be unconscionable for the defendants to retain property solely, nor did they prove an agreement or common assumption supporting estoppel by convention in relation to the Frederick Street property. Payments made by the plaintiffs were found to be either loans, repayments, payments for services, or gratuitous advances, with no sufficient evidence of a binding agreement or joint enterprise as alleged. The proceedings were dismissed.

Jurisdiction
Australia
Judgment Date
15 November 2013
Procedural Posture
Principal Judgment / Trial
Outcome
Plaintiffs' proceedings dismissed; orders to be settled upon application by the parties.
Legal Topics
['constructive Trust' 'pooling of Resources' 'joint Endeavour' 'estoppel by Convention' 'burden of Proof']
['equity' 'evidence'] ['constructive Trust' 'pooling of Resources' 'joint Endeavour' 'estoppel by Convention' 'burden of Proof']

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Procedural Posture

Principal Judgment / Trial

Legal Issues

  1. 1 ['Whether a constructive trust should be imposed under the Baumgartner or Muschinski principles based on alleged pooling of resources and joint endeavour between the plaintiffs and defendants' 'Whether there was estoppel by convention in relation to trust over property at Frederick Street, Gosford' 'Characterisation of payments between the parties: loans, gifts, payments for services, or advances forming a common pool']

Ratio Decidendi

The plaintiffs failed to establish, on the balance of probabilities, that there was a joint relationship or endeavour involving a pooling of resources with the respondents such that it would be unconscionable for the defendants to retain property solely, nor did they prove an agreement or common assumption supporting estoppel by convention in relation to the Frederick Street property. Payments made by the plaintiffs were found to be either loans, repayments, payments for services, or gratuitous advances, with no sufficient evidence of a binding agreement or joint enterprise as alleged. The proceedings were dismissed.

Court Disposition

Plaintiffs' proceedings dismissed; orders to be settled upon application by the parties.

Orders

  • []