impediment. But there is no reason to suppose, upon the evidence, that, although the appellant is no longer able, satisfactorily, to perform the duties of an engineer, there are not open to him, not- withstanding his disability, avenues of employment which are just as wide and just as remunerative as those to which his engineering training would have led him. Indeed consideration of the evidence leads me to think that this is SO and in the circumstances I am satisfied that the percentage of the appellant's incapacity for civil employment is less than thirty per cent. Accordingly the appeal should be dismissed.
Order that the appeal be dismissed. Further order
that the appellant pay to the respondent its costs of the proceedings but not including the costs of and incidental to the case stated for the opinion of the Full Court. Solicitors for the appellant, Selwyn Gerity &Robinson. Solicitor for the respondents, H. E. Renfree, Crown Solicitor for the Commonwealth of Australia.
RESPONDENTS. PLAINTIFFS, Ejectment-Proof of title-Claimant with incomplete documentary title-Possession
for less than twenty years-Presumptions arising from possession-Discon tinuance in possession-Whether necessary to prove possession for at least twenty SYDNEY,
years against subsequent possessor-Rights arising from possession-Devisable- Mar. 31,
Real Property Limitation Act 1833 (Imp.), 8. 34. April 1;
Trusts and Trustees-Trust property-Acceptance of trust-Vesting of trust property
in trustee-Deed defining trust property-Claim by trustee to beneficial interest in such property-Denial that property subject to trust-Suit by beneficiaries to enforce trust-Title of trust to property assumed against trustee-Burden of proof on trustee to establish interest.
In a suit instituted in the Supreme Court of New South Wales in its equitable jurisdiction in 1950 a trustee and the representatives of a deceased beneficiary sought (inter alia) a declaration that certain lands then in the occupation of one A., the other trustee, who was sued in his representative capacity, were assets in the estate of their testator C., who died in 1895. C. acquired the fee of such lands, which were under common law title, in 1880 by conveyance from P. as mortgagor and H. as mortgagee, P. having in 1877 mortgaged them to H. The lands were originally the subject of a Crown grant to T. in 1823, but there was no documentary or other evidence of the state of the title between the Crown grant and the mortgage of 1877. C. occupied the lands from the time of purchase till his death and by his will included them in a residuary devise to his trustees to the use of his son W. for life and, in the events which happened, remainder to all C.'s children. A. went into possession in 1898 and from that time used the lands for his own benefit. By deed dated 13th August 1937, in which they both joined, A. and the plaintiff- trustee were appointed new trustees of C.'s estate, which appointment was confirmed by a further deed dated…
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.
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AGLC
Allen v Roughley [1955] HCA 62
Case
[1955] HCA 62
Decision Date
CaseChat Overview and Summary
This case concerned a dispute over the ownership of certain lands, referred to as "Plunkett's land," which were claimed to be assets of the estate of Henry Cusbert, deceased. The suit was initiated in the Supreme Court of New South Wales in its equitable jurisdiction by the trustee of Cusbert's estate and the representatives of a deceased beneficiary against Edmund Ambrose Allen, the other trustee of the estate, who was in possession of the land and claimed it as his own. Allen's defence rested on two grounds: first, that he had acquired a possessory title through continuous occupation since shortly after Cusbert's death, thereby barring the beneficiaries' claims; and second, that the title of Cusbert to the land had not been sufficiently proven. The primary issue on appeal to the High Court was whether Cusbert's title to Plunkett's land had been adequately established.
The High Court, by a majority, dismissed the appeal. The reasoning varied among the judges, but a central theme was the burden of proof placed upon a trustee who sought to assert a beneficial interest in trust property adverse to the trust. The Court held that even if Cusbert possessed only a possessory right, this right devolved upon his trustees and subsequently vested in Allen and his co-trustee. Allen, as a trustee, was therefore unable to defeat the beneficiaries' claims by asserting a private possessory title without affirmatively proving its acquisition prior to his acceptance of the trusteeship. The Court also considered the evidentiary weight of possession, with some judges finding that Cusbert's possession from 1880 to 1895 provided sufficient evidence of title, or at least an interest capable of devolution, and that Allen had failed to establish that his possession extinguished the beneficiaries' equitable interests.
The Court applied principles of equity regarding the duties of trustees and the evidentiary presumptions arising from possession. It was held that a trustee contesting the title of property subject to a trust cannot shift the burden of proof to the beneficiaries. Furthermore, the Court addressed the legal debate surrounding possessory titles, affirming that possession, even for less than twenty years, can constitute prima facie evidence of title, particularly when the defendant is a trustee claiming against the trust. The appeal was dismissed, with orders for the appellant to pay the respondent's costs.