Cummings v Alderson [1991] QSC 233

IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON BETWEEN: MARIA MAGDALENA CUMMINGS No. 150 of 1989. (also known as HELEN CUMMINGS) Plaintiff AND: ALAN CHAMBERS ALDERSON Defendant JUDGMENT - DEMACK J. DELIVERED the 15th day of August 1991. CATCHWORDS: Sanction of an order of the Court - s. 80(3) Public Trustee Act. Constructive trust - substantial contribution to value of property - de facto relationship - s. 11 Property Law Act 1974. COUNSEL: Mr D. McMEEKIN Mr. G. O'DRISCOLL SOLICITORS: HEARING DATES: CONNOLLY, SHIRMER & BATTS PUBLIC TRUSTEE 26th July, 1991. for Plaintiff for Defendant for Plaintiff for Defendant -- 1 of 4 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON No. 150 of 1989. BETWEEN: AND: MARIA MAGDALENA CUMMINGS (also known as HELEN CUMMINGS) Plaintiff ALAN CHAMBERS ALDERSON Defendant JUDGMENT - DEMACK J. DELIVERED the 15th day of August 1991. In this action Mrs Cummings seeks the following order:- "THAT the estate in fee simple in all that the land described as Lot 24 on Registered Plan No. 600988 in the County of Livingstone, Parish of Rockhampton and being the whole of the land described in Certificate of Title Volume C375 Folio 203 vest in Alan Chambers Alderson and Maria Magdalena Cummings (also known as Helen Cummings) as tenants in common in equal shares AND THAT the Registrar of Titles do forthwith record the same upon the said Certificate of Title upon receipt by him of a copy of the sealed order of the Court and a Request to Register in Form 14." Mrs Cummings met Mr Alderson in Germany in 1972. She was then widowed and she accepted his invitation to come to visit him in Australia. Australia in 1973. She paid her own air fares to come to Mr Alderson met her in Brisbane and drove with her to Rockhampton. They commenced to live in a house he owned at 132 Little Stanley Street. Mrs Cummings has remained living in that house ever since. During the first year, sexual intercourse took place, but Mr Alderson's heavy drinking led to Mrs Cummings sleeping -- 2 of 4 -- 2 in a separate bedroom. ·rn 1984, Mr Alderson was committed to the Westwood sanatorium for treatment. After about a year he was released and was "like a new man". Mrs Cummings then agreed to spend part of her savings upon the renovation of 132 Little Stanley Street, upon the understanding that he would convey a half-interest in the property to her. The improvements were made with Mrs Cummings's money, but no transfer of interest occurred. Mr Alderson is now a patient at the Wacol Repatriation Pavilion, and his affairs are managed by the Public Trustee. Under s. 80(3) of the Public Trustee Act, the sanction of an order of this Court is required in respect of a number of matters, so that the action had to come before the Court. However, the Public Trustee has not been able to obtain instructions on the factual matters raised by Mrs Cummings, so it is necessary for the plaintiff to prove her case. I am satisfied that Mrs Cummings has proved that in August 1985, $61,347.35 was received into her bank account from West Germany by way of overseas telegraphic transfer. In 1985 and 1987 extensive renovations were done to the house. In all, $61,713.08 was spent by Mrs Cummings, from her own monies. She also purchased furniture and fittings valued at $11,817.72. Prior to the expenditure of this money, the house was a very modest dwelling. However, the expenditure is not reflected in its present value ($62,000). I am satisfied that these matters supported Mrs Cummings evidence about the agreement to transfer a half interest in the house to her. -- 3 of 4 -- 3 For the Public Trustee, it was submitted that there was no evidence in writing to support the agreement. However, s. 11 of the Property Law Act, which is the contemporary expression of the Statute of Frauds, provides, in s. s. ( 2), that the section does not affect the creation or operation of resulting, implied or constructive trusts. I was referred to Baumgartner v. Baumgartner (1987) 62 A.L.J.R. 29, which is a recent decision on constructive trusts. This decision clearly establishes circumstances unconscionable that a constructive like the present, for the defendant to trust may where it maintain an arise in would be exclusive claim to the property. I am satisfied that the evidence establishes such a constructive trust in this case. Mr Alderson has made a will in which he has left the property at 132 Little Stanley Street to Mrs Cummings. He now lacks the capacity to make a fresh will. However, that does not cover the eventuality that she may predecease him. In such a case, her substantial contribution to the value of the property would be completely lost. I shall make the orders sought, in terms of the draft initialled by me and placed with the papers. -- 4 of 4 --