Murphy v. Spinney, (2014) 428 N.B.R.(2d) 85 (FD)

Judge:Walsh, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:October 17, 2014
Jurisdiction:New Brunswick
Citations:(2014), 428 N.B.R.(2d) 85 (FD);2014 NBQB 234
 
FREE EXCERPT

Murphy v. Spinney (2014), 428 N.B.R.(2d) 85 (FD);

    428 R.N.-B.(2e) 85; 1116 A.P.R. 85

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2014] N.B.R.(2d) TBEd. DE.018

Renvoi temp.: [2014] N.B.R.(2d) TBEd. DE.018

Patrick Murphy (applicant) v. Sharon Marlene Spinney (respondent)

(FDM 711-13; 2014 NBQB 234; 2014 NBBR 234)

Indexed As: Murphy v. Spinney

Répertorié: Murphy v. Spinney

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Moncton

Walsh, J.

October 24, 2014.

Summary:

Résumé:

A couple cohabited from August 2009 until March 2013, when they separated. The man (Murphy) was now 75. The woman (Spinney) was 58. During cohabitation, Murphy agreed to purchase a cottage for $80,000. Spinney, wishing to participate in the purchase, provided $10,000. Murphy provided the $70,000 balance. For tax reasons, title was taken in Spinney's name only. The parties entered into a rudimentary "side agreement" that provided that if the cottage was sold, each person would recoup their initial investment and any surplus would be split equally. After they separated, Spinney took sole possession of the cottage. Murphy applied under rule 67 (partition and sale) for a court order that the cottage be sold and that the sale proceeds be distributed according to the side agreement. Murphy argued resulting trust.

The New Brunswick Court of Queen's Bench, Family Division, granted a rule 67 order that the cottage be sold, with the proceeds to be distributed according to the side agreement. Murphy established an unjust enrichment entitling him to equitable relief. The appropriate remedy was a constructive trust. Since the cottage had been encumbered by a line of credit in Spinney's name (Murphy received $29,500 and Spinney received $5,000 of the initial draw), after paying off the initial draw Murphy was entitled to $40,000 of the sale proceeds and Spinney was entitled to $5,000. Any remaining sales proceeds were to be divided equally. The court awarded $1,500 costs against Spinney, whose opposition to the sale was unreasonable.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - [See Family Law - Topic 1006 ].

Family Law - Topic 1006

Common law, same-sex or adult interdependent relationships - Resulting or constructive trusts - A couple cohabited from August 2009 until March 2013, when they separated - The man (Murphy) was now 75 - The woman (Spinney) was 58 - During cohabitation, Murphy agreed to purchase a cottage for $80,000 - Spinney, wishing to participate in the purchase, provided $10,000 - Murphy provided the $70,000 balance - For tax reasons, title was taken in Spinney's name only - The parties entered into a rudimentary "side agreement" that provided that if the cottage was sold, each person would recoup their initial investment and any surplus would be split equally - After they separated, Spinney took sole possession of the cottage - Murphy applied under rule 67 (partition and sale) for a court order that the cottage be sold and that the sale proceeds be distributed according to the side agreement - The New Brunswick Court of Queen's Bench, Family Division, granted a rule 67 order that the cottage be sold, with the proceeds to be distributed according to the side agreement - Murphy established an unjust enrichment entitling him to equitable relief - Spinney was enriched, and Murphy suffered a corresponding deprivation, by Murphy paying 87.5% of the purchase price and all the expenses prior to separation - The side agreement should be enforced and it evidenced the absence of any juristic reason for the enrichment - Spinney failed to prove any non-monetary contributions to the cottage greater than those provided by Murphy - The appropriate remedy was a constructive trust - Since the cottage was subject to a line of credit in Spinney's name (Murphy received $29,500 and Spinney received $5,000 of the initial draw), after paying off the line of credit Murphy was entitled to $40,000 of the sale proceeds and Spinney was entitled to $5,000 - Any remaining sales proceeds were to be divided equally - See paragraphs 25 to 54.

Restitution - Topic 62

Unjust enrichment - What constitutes - [See Family Law - Topic 1006 ].

Restitution - Topic 123

Unjust enrichment - Remedies - Constructive trust - [See Family Law - Topic 1006 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - [See Family Law - Topic 1006 ].

Droit de la famille - Cote 688

Mari et femme - Droits de propriété pendant et après une union libre - Fiducie résultoire ou constructoire - [Voir Family Law - Topic 688 ].

Droit de la famille - Cote 1006

Union libre, union interdépendante ou union formée par deux personnes du même sexe - Fiducie résultoire ou constructoire - [Voir Family Law - Topic 1006 ].

Fiducies - Cote 2346

Fiducies constructoires - Fondement pour leur application - Enrichissement sans cause - [Voir Trusts - Topic 2346 ].

Restitution - Cote 62

Enrichissement sans cause - Généralités - Éléments constitutifs - [Voir Restitution - Topic 62 ].

Restitution - Cote 123

Enrichissement sans cause - Mesures de redressement - Fiducie constructoire - [Voir Restitution - Topic 123 ].

Cases Noticed:

Kerr v. Baranow (2011), 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 5].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 25].

Bartlett v. Murphy (2011), 374 N.B.R.(2d) 270; 965 A.P.R. 270; 2011 NBQB 139 (Fam. Div.), refd to. [para. 39].

Counsel:

Avocats:

Kenneth W. Martin, for the applicant;

The respndent, per se.

This application was heard on October 17, 2014, before Walsh, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Moncton, who delivered the following judgment on October 24, 2014.

To continue reading

FREE SIGN UP