Allen v Roughley

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.