D.R.B. v. D.S.W.

D.R.B. v. D.S.W.

Plaintiff failed to rebut the presumption of advancement and did not prove a trust over defendant's one-half interest; the A. Avenue property remains joint tenancy and must be sold with net proceeds divided equally; the gumball business was a partnership and an accounting was impractical because of unreliable...

Source-derived case information.

Citation
2005 BCSC 1356
Parties
Plaintiff: D.R.B.; Defendant: D.S.W.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
28 September 2005
Procedural Posture
Civil Property and Partnership Dispute (cohabitation) / Trial Judgment
Outcome
Judgment for defendant in part and for plaintiff in part: property sale ordered with equal division; defendant declared partner in gumball business; estimated monetary award to defendant for post-separation partnership share; other plaintiff claims dismissed
Legal Topics
Constructive Trust, Resulting Trust, Presumption of Advancement, Partition of Property, Partnership Accounting, Unjust Enrichment, Occupation Rent, Assessment of Credibility
Source Language
english
Family Law Property Law Trusts and Equity Partnership Law Civil Remedies Constructive Trust Resulting Trust Presumption of Advancement +5 more

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Parties

D.R.B.

Plaintiff

D.S.W.

Defendant

Procedural Posture

Civil Property and Partnership Dispute (cohabitation) / Trial Judgment

Legal Issues

  1. 1 Whether defendant holds his half interest in the A. Avenue property on trust for the plaintiff (constructive, resulting or express trust)
  2. 2 Whether defendant was unjustly enriched by plaintiff's contributions
  3. 3 Whether the gumball machine business constituted a partnership between the parties

Ratio Decidendi

Plaintiff failed to rebut the presumption of advancement and did not prove a trust over defendant's one-half interest; the A. Avenue property remains joint tenancy and must be sold with net proceeds divided equally; the gumball business was a partnership and an accounting was impractical because of unreliable records, so the court accepted an evidentiary estimate and awarded the defendant a calculated share ($143,941) for the post-separation period; occupation rent was offset by plaintiff's payment of expenses since separation.

Court Disposition

Judgment for defendant in part and for plaintiff in part: property sale ordered with equal division; defendant declared partner in gumball business; estimated monetary award to defendant for post-separation partnership share; other plaintiff claims dismissed

Orders

  • A. Avenue property to be listed for sale within 30 days
  • Defendant granted sole conduct of sale with liberty to apply