In Behman v Behman [2016] NSWCA 295, the Supreme Court of NSW confirmed the primary judge’s finding that the respondent was entitled to an equitable proprietary estoppel founded on the basis of the appellant’s representations of him having an interest in the family property.
The appellant and respondent were father and son, respectively. The son gave evidence that he made extensive financial contributions towards the house mortgage repayments and maintenance costs into a bank account controlled by his father, upon the father’s representation that the son had a joint ownership of the family home.
In the absence of documentation evidencing any agreement between the parties, the Court accepted the son’s affidavit evidence of discussions with his father, further supported by his brother’s affidavit. Such evidence demonstrated that the son had contributed money towards the property since he was a teenager, and that when the he commenced university and a new job he expressed his will to move out of the home and manage his own affairs. The son stated that the father persuaded him not to do so as his wages were essential to the retention of the house in which the son had a joint interest.
When the son left the home and asked to have his name on the title of the property, the father refused the request and said "that's right the house is the family's and since you're no longer part of the family, you don't own it anymore''. The Supreme Court found that the father’s answer, as stated in the son’s affidavit, acknowledges the making of representations giving rise to the common understanding of the parties that the contributions were made on the basis that the son had a joint ownership interest in the house.
Advancement of monies by family members can be difficult to prove. The decision is an important reminder that any advancement of money should be correctly documented to reflect the parties’ intentions.
To discuss this further or for more information please contact:
Daniel Smedley
Principal | Accredited Specialist in Tax Law
Sladen Legal
M +61 411 319 327 | T +61 3 9611 0105
dsmedley@sladen.com.au
Patricia Martins
Legal Executive / Project Manager
Sladen Legal
T +61 3 9611 0138
pmartins@sladen.com.au
