Posted By LeeLawyers on 25 Sep 2014
Nolan v Nolan & Ors [2014] QSC 218


  • An ex-wife gains substantial interest in family assets outside of the Family Law Court.

Donna Nolan (the Plaintiff) and Tony Nolan (‘the First Defendant’) were married for 18 years. During this time, they contributed to the running of the First Defendants parents’ (‘the Second & Third Defendant’) farming enterprises and associated spraying business (‘the Fourth Defendant’). The First Defendant left the marriage in 2009.

The Plaintiff then commenced proceedings to seek recognition of her contribution to the family farming enterprise by way of declaration of constructive trust in her favour, either on the basis of her future expectation that herself and the First Defendant would inherit the farming properties and associated businesses, or on the basis that she was engaged in a common endeavour with the Defendants in regards to the farming enterprises.


Equitable Estoppel:

The Plaintiff argued that proprietary estoppel may be established even where conduct of a party is such that the expectation has not been precisely defined[i].

Lyons J held that while a vague expectation could satisfy the requirements of equitable estoppel, she was not satisfied that there was any intention by the Second and Third Defendant of passing on all of the farming property & enterprises to the Plaintiff and the First Defendant without any recognition of the Defendants’ other children.

Her Honour further considered that the Plaintiff did not suffer a sufficient detriment to warrant a claim in equitable estoppel. She was of the opinion that while the family lived at Kitcombe, they did not live there on reliance on the specific representation that they would one day inherit the property and farming enterprise.

Common Endeavour and Constructive Trust:

The Plaintiff sought to assert a constructive trust on the basis of common endeavour between the Plaintiff and the Defendants. Lyons J noted that this equitable remedy does not depend on the common intention of the parties and is imposed by equity regardless of the actual or presumed intention of the parties. This remedy prevents the unconscionable retention of property [ii].

Further, where a constructive trust is sought by common endeavour, the usual practice is to make an equal division of property, particularly when parties have equally contributed over a substantial period of time [iii]. These contributions do not necessarily have to financial contributions: the court can take into consideration contributions to family welfare by way of domestic assistance, home making and parenting.

Lyons J found that the Plaintiff was engaged in a common endeavour with the Defendants because of her role as homemaker for the family, co-borrower and guarantor for farm machinery and vehicles, the use of her wage to help the Defendants in difficult financial times, and administrative and physical work relating to the farming enterprises and related spraying business.

Her Honour further held that the Plaintiff had suffered a detriment as a result of her involvement in the common endeavour and that it would also be unconscionable for the Defendants to benefit from her contributions to the common endeavour without some compensation to her.


The Plaintiff was assigned 50% of the asset pool ($405,000.00) that was originally assigned to her and her husband, minus the deduction of $69,300.00, to acknowledge that Plaintiff had lived rent free on the Defendants’ property since the marriage ended.

  • This Supreme Court of Queensland decision reinforces the notion that the law of Equity can make property divisions on grounds other than financial and the federal Family Courts.


[ii] See the statement of principle outlined in Flinn v Flinn [1999] 3 VR 712

[ii] See Willetts V Marks [1994] QCA 006

[liii Baumgartner v Baumgartner(1987) 164 CLR 137 at 148 – 149 per Mason, Wilson & Deane JJ

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