David 2
29 Apr 1991
23 May 1996
03 Feb 2005
B.Com. (Hons), LLM.
Legalbrief sm
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Subhead 1a

Cat’s In The Cradle But No Silver Spoon

Behman v Behman [2016] NSWCA 295

Last week the NSW Court of Appeal dismissed an appeal by a father who had been ordered to pay his 28 year old son $120,000.

The father was Tarek (Terry) Behman. He  had four sons, including the respondent Daniel Behman, born in 1989.

In 2002 Terry and his then wife were divorced but their four sons stayed living with Terry. In 2007 Daniel commenced university studies and part time work with an accounting firm. From then until 2012 Daniel paid all his wages, totalling $204,000, into his father’s bank account from which household expenses including mortgage repayments were made. Daniel also worked unpaid in Terry’s business for about 30 weekends.

Daniel and his twin brother Matthew gave evidence that from the time Daniel was about 11 years old their father made numerous statements to the effect that the home belonged to all of them and they all needed to pay for it as a family.

But the payment of his wages into his father’s account rankled Daniel and ultimately they fell out over Daniel’s wish to be independent. Then in 2013 Daniel asked Terry to put Daniel’s name on the title. Terry refused. So Daniel asked for his wages to be repaid instead, which was also refused.

Daniel then instituted an action in the Supreme Court of New South Wales claiming a one-fifth equitable interest in the family home. The basis of the equity was said to be a common intention constructive trust and an equitable proprietary estoppel.

Rein J rejected Daniel’s claim for a one fifth interest in the family home but awarded him $120,000 secured by a charge on the property on the basis that there was a failed joint endeavour and $120,000 represented a fair assessment of what Daniel had contributed less what he had already received. Rein J would also have upheld the claim for a proprietary estoppel to that extent had that been necessary.

The basis of the father’s appeal was that his statements to his sons had not changed in substance from what was said when Daniel was a young teenager and had to be understood in that context, even when they were repeated when Daniel was an adult. The Court of Appeal rejected this argument for the reason that there were specific and distinct later conversations on which the primary judge relied for his decision.

To me the curious thing about this case, apart from the misconceived appeal, is why even at first instance it only invoked equitable causes of action. The payments of money by Daniel were provisional. Their ultimate purpose was never achieved so they might also have been recovered in a common law action for money had and received consistently with Yorke Air Conditioning and Refrigeration (Asia) Proprietary Limited v Commonwealth [1949] 80 CLR 11.