Hutchison v Turnbull [2006] NSWSC 686

A defacto couple split and the woman found a caveat had been lodged on her property. The man claimed, in the caveat, an equitable interest by virtue of a constructive trust arising because he had paid $8,000 towards mortgage payments and painted a fence.

The woman lapsed the caveat and the man brought this application to extend it. His Honour opined a resulting trust or a equitable charge would be more appropriate claim, noting that a misdescription of an equitable interest was not fatal.

His Honour found an authority where a equitable charge arose when a father contributed to the extension of a house owned by his son and daughter-in-law and it was held unconscionable for them to have the benefit of the extension without recompense so a charge was held to be an appropriate remedy. However His Honour declined to follow the authority determining that a relatively small contribution to the defendant’s mortgage and an unspecified contribution to repairs and renovations to her house is insufficient, to make it unconscionable for the property to remain unencumbered.

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