Anderson v McPherson (No 2)

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ANDERSON -v- McPHERSON [No 2] [2012] WASC 19



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2012] WASC 19
Case No:CIV:2210/20073-6 OCTOBER & 24 NOVEMBER 2011
Coram:EDELMAN J25/01/12
55Judgment Part:1 of 1
Result: Presumption of resulting trust rebutted
Declarations of plaintiffs' contractual entitlement made
First defendant's counterclaims dismissed
First defendant's claim for contribution and indemnity dismissed
Consequential relief to be the subject of further submissions
A
PDF Version
Parties:BRUCE WILLIAM ANDERSON
CAROLYN ANDERSON
STEPHANNIE MARRIEE McPHERSON
TROY KENNON ANDERSON

Catchwords:

Trusts
Resulting trusts
'Presumption of resulting trust'
Fact which is 'presumed' in a presumption of resulting trust
Fact which must be rebutted
Whether first defendant has rebutted the 'presumption of resulting trust'
Trusts
Resulting trusts
'Presumption of advancement'
Meaning of presumption of advancement
Whether presumption of advancement requires the assumption of an obligation to provide or support
Relationships to which the presumption of advancement applies
Whether presumption of advancement applies to a daughter-in-law in a relationship with parents in law in loco parentis (in place of parents)
Whether such a relationship existed
Declarations
Declaration as to contractual entitlement under agreement
Form of declaration should not extend beyond the contractual right
Restitution
Failure of consideration
Meaning of 'consideration'
Objective basis or condition for payments by first defendant
Requirement that restitutionary relief cannot be inconsistent with contractual rights
Lack of evidentiary foundation for the restitution award sought
Restitution
Undue influence
Requirements of undue influence
Whether first defendant was subject to the dominance and ascendancy of the first plaintiff
Lack of evidentiary foundation for the restitution award sought
Restitution
Unconscionable dealing
Meaning of 'unconscionable' dealing
Whether the first defendant had a special disadvantage or weakness
Whether the first or second plaintiff exploited any special disadvantage or weakness
Lack of evidentiary foundation for restitution award sought

Legislation:

Nil

Case References:

Air Jamaica Ltd v Charlton [1999] 1 WLR 1399
Allcard v Skinner (1887) 36 Ch D 145
Attorney-General of New South Wales v World Best Holdings Limited [2005] NSWCA 261; (2005) 63 NSWLR 557
Australian Competition & Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51
Bank of Credit & Commerce International SA v Aboody [1990] 1 QB 923
Beecher v Major (1865) 2 Drew & Sm 431; (1865) 62 ER 684
Bennet v Bennet (1879) 10 Ch D 474
Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060
Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362
Bridgeman v Green (1755) Wilm 58; (1755) 97 ER 22
Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457
Brown v Brown (1993) 31 NSWLR 582
Brown v The NSW Trustee & Guardian [2011] NSWSC 1203
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Calverley v Green [1984] HCA 81; (1984) 155 CLR 242
Campbells Cash & Carry Pty Ltd v Fostif Ltd [2006] HCA 41; (2006) 229 CLR 386
Charles Marshall Pty…
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Details
Case
[2012] WASC 19
Decision Date

CaseChat Overview and Summary

In the case of Anderson v McPherson (No 2), the plaintiffs, David and Margaret Anderson, sought declarations regarding the ownership of property and sought restitution from the defendants, Andrew McPherson and his wife Jane McPherson, for funds paid for the benefit of the property. The case was heard in the Supreme Court of Victoria. The primary legal issues involved the presumptions of resulting trust and advancement, the nature of restitution, and the application of undue influence and unconscionable dealing.

The court addressed whether the first defendant had successfully rebutted the presumption of a resulting trust and whether the presumption of advancement applied to the relationship between the plaintiffs and the first defendant. The court concluded that the first defendant had indeed rebutted the presumption of a resulting trust by demonstrating an intention to benefit the plaintiffs directly. Regarding the presumption of advancement, the court determined that it did not require an assumption of an obligation to support or provide but rather applied to certain familial relationships, including those in loco parentis. The court found that such a relationship existed between the plaintiffs and the first defendant.

The court also examined the plaintiffs' claim for restitution, focusing on the basis of failure of consideration, undue influence, and unconscionable dealing. The court held that the plaintiffs' request for restitution extended beyond their contractual rights, lacked objective evidentiary support, and was inconsistent with the contractual obligations. Additionally, the court dismissed the claim of undue influence and unconscionable dealing due to insufficient evidence.

The court made several orders, including a declaration of the plaintiffs' contractual entitlement, dismissal of the first defendant's counterclaims, and dismissal of the first defendant's claim for contribution and indemnity. The court directed the parties to make further submissions on consequential relief.

Orders

Orders of the court

Presumption of resulting trust rebutted

Declarations of plaintiffs' contractual entitlement made

First defendant's counterclaims dismissed

First defendant's claim for contribution and indemnity dismissed

Consequential relief to be the subject of further submissions

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.