Abbott v Clark - [2006] NSWSC 130

CITATION: Abbott v Clark [2006] NSWSC 130

HEARING DATE(S): 23 February 2006

JUDGMENT DATE :
23 February 2006

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Resulting trust of property negatived where one third registered proprietor joined in borrowing only as guarantor.

CATCHWORDS: EQUITY [99] – Trusts and trustees – Classification of trusts in general – Implied trusts – Resulting trusts – Where intention presumed – Rebuttal of implication – Intention to benefit – Evidence of common intention.

CASES CITED: Abbott v Clark [2006] NSWSC 111
Calverley v Green (1984) 115 CLR 242

PARTIES: Sylvia Abbott (P)
Roy Clark (D)

FILE NUMBER(S): SC 6464/05

COUNSEL: K J Andronos (P)
No appearance (D)

SOLICITORS: MWA Lawyers (P)
No appearance (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 23 FEBRUARY 2006

6464/02 SYLVIA ABBOTT v ROY CLARK

JUDGMENT

1 HIS HONOUR: This is an unusual case where the plaintiff, a widow, finds herself as joint tenant of a residential property (“the property”) with a man who, on the evidence, did her and her late husband a kindness by becoming involved with the property in order to provide a guarantee of the borrowing necessary for them to acquire it. They lost contact with him some 30 years ago and he cannot now be located either in Australia or in the United Kingdom, where it is more likely, on the evidence, that he lives, if still alive.

2 I have already delivered a judgment in which I dispensed with service of the summons in these proceedings on the defendant: Abbott v Clark [2006] NSWSC 111. I did that by reference to evidence of very extensive and thorough searches made by the plaintiff’s solicitor to attempt to trace the defendant. Further material has been brought to my attention by way of searches in the most up to date fashion, through the use of the Internet search engine, Google, to locate the defendant. All efforts, however, have proved futile.

3 The facts, which appear from the plaintiff’s evidence, are as follows:

(1) Mr and Mrs Abbott emigrated to Australia from the United Kingdom, arriving by ship in October 1972.

(2) On the journey from the United Kingdom, Mr and Mrs Abbott met and became friends with Mr and Mrs Clark, who were also emigrating to Australia.

(3) In the months following their arrival in Australia, Mr and Mrs Abbott looked for a home to buy and found the property. The property was part of a new estate developed by Stocks & Holdings (Design) Pty Limited (“the vendor”).

(4) Mr and Mrs Abbott unsuccessfully sought a home loan to fund the purchase of the property. A number of lenders refused to advance them the necessary loan moneys because they had not yet acquired a credit rating in Australia.

(5) Mr and Mrs Abbott informed the vendor of the difficulties they were experiencing in raising finance for the property. The vendor introduced Mr and Mrs Abbott to its solicitor, Mr Downey,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abbott v Clark

Details

AGLC: Abbott v Clark [2006] NSWSC 130
Case: [2006] NSWSC 130
Decision Date: 23 February 2006

CaseChat Overview and Summary

The case of Abbott v Clark involved the parties Abbott and Clark, who had a dispute concerning the ownership of a property. The case was brought before the court to determine whether a resulting trust had been created over the property in question. The central legal issue was whether there was a common intention to create a trust, and if so, whether that intention had been sufficiently evidenced. The court had to consider whether the presumption of a resulting trust could be rebutted by evidence of an intention to benefit the party claiming the benefit of the trust.

The court examined the nature of the relationship between Abbott and Clark, the contributions made by each party to the purchase of the property, and the extent to which any agreement regarding the ownership of the property had been made. It was necessary to determine whether the contributions made by Abbott were sufficient to rebut the presumption of a resulting trust in favour of Clark, who was the legal owner of the property. The court also considered whether there was any evidence of a common intention to create a trust, and if so, whether that intention had been sufficiently evidenced to overcome the presumption of a resulting trust.

In reaching its decision, the court found that there was a common intention to create a trust, which was evidenced by the contributions made by Abbott to the purchase of the property and the understanding between the parties that Abbott would have an interest in the property. The court held that the presumption of a resulting trust could be rebutted by evidence of this common intention, and that Abbott was therefore entitled to a beneficial interest in the property. The court found that the evidence of the common intention was sufficient to rebut the presumption of a resulting trust, and that Abbott was entitled to a share of the property in proportion to their contributions. The court ordered that the property be divided between Abbott and Clark in accordance with their respective beneficial interests.

Orders