Campbell v van der Velde as trustee of the bankrupt estate of Marilyn Anne Rowan, in the matter of Rowan [2019] FCA 1871

Campbell v van der Velde as trustee of the bankrupt estate of Marilyn Anne Rowan, in the matter of Rowan [2019] FCA 1871

The Court found a common intention joint venture between Neil Campbell and Mrs Rowan regarding Lot 1102, establishing that the parties intended that their respective beneficial interests would reflect their actual contributions, monetary and non-monetary, to the acquisition, development and financing of the property. As the joint venture failed in August 2006 without attributable blame, a constructive trust arose, and Mrs Rowan's 98/100 share as tenant in common is held upon trust for her, to the extent of her contributions (net of deposit repayment), with the balance for Neil Campbell and those claiming through him. As such, only Mrs Rowan's proportionate beneficial interest of $16,688...

Parties
First Applicant / First Cross Respondent: Neil Colin Campbell; Second Applicant / Second Cross Respondent: Neil Colin Campbell as representative of the deceased estate of Colin Malcolm Campbell; Third Applicant / Third Cross Respondent: Cheryl Anne Campbell; Respondent / Cross Claimant: Terry Grant van der Velde as trustee of the bankrupt estate of Marilyn Anne Rowan
Jurisdiction
Australia
Judgment Date
14 November 2019
Procedural Posture
Bankruptcy and Insolvency; Equity; Trusts and Trustees; Constructive Trusts; Joint Venture / Judgment After Final Hearing, Including Orders and Reasons
Outcome
Declaratory; directions for further orders; costs reserved.
Legal Topics
Constructive Trusts, Joint Venture Agreements, Resulting Trusts, Vesting of Interests in Bankruptcy, Proportionate Contributions, Trusts Arising From Failure of Joint Ventures, Division of Property on Dissolution of Joint Venture, Specific Performance of Transfer, Occupation Fee Claim, Relief Despite Alleged Revenue Avoidance
Bankruptcy and Insolvency Equity Trusts and Trustees Property Law Constructive Trusts Joint Venture Agreements Resulting Trusts Vesting of Interests in Bankruptcy +6 more

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Parties

Neil Colin Campbell

First Applicant / First Cross Respondent

Neil Colin Campbell as representative of the deceased estate of Colin Malcolm Campbell

Second Applicant / Second Cross Respondent

Cheryl Anne Campbell

Third Applicant / Third Cross Respondent

Terry Grant van der Velde as trustee of the bankrupt estate of Marilyn Anne Rowan

Respondent / Cross Claimant

Procedural Posture

Bankruptcy and Insolvency; Equity; Trusts and Trustees; Constructive Trusts; Joint Venture / Judgment After Final Hearing, Including Orders and Reasons

Legal Issues

  1. 1 Whether Mrs Rowan's 98/100 share in Lot 1102 vests in the trustee upon bankruptcy or is subject to a constructive trust in favour of the Campbells
  2. 2 Whether and to what extent a constructive or resulting trust should be imposed on title to Lot 1102 to reflect the parties' contributions
  3. 3 Whether occupation fee is payable by the Campbells to Mrs Rowan or her trustee for their occupation of 19 Applecross Avenue

Ratio Decidendi

The Court found a common intention joint venture between Neil Campbell and Mrs Rowan regarding Lot 1102, establishing that the parties intended that their respective beneficial interests would reflect their actual contributions, monetary and non-monetary, to the acquisition, development and financing of the property. As the joint venture failed in August 2006 without attributable blame, a constructive trust arose, and Mrs Rowan's 98/100 share as tenant in common is held upon trust for her, to the extent of her contributions (net of deposit repayment), with the balance for Neil Campbell and those claiming through him. As such, only Mrs Rowan's proportionate beneficial interest of $16,688...

Court Disposition

Declaratory; directions for further orders; costs reserved.

Orders

  • Parties to bring in orders to give effect to reasons within 14 days.
  • Applicants to pay the trustee $18,323.06 as full satisfaction of Mrs Rowan's estate's interest in Lot 1102; payment to condition transfer of title.