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Anson v Anson

Anson v Anson

Case [2004] NSWSC 766 10 September 2004

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CITATION: Anson v Anson [2004] NSWSC 766

HEARING DATE(S): 16/8/04 - 18/8/04

JUDGMENT DATE:
10 September 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Express trust concerning land not established - agreement not to sever joint tenancy not established - Baumgartner trust prevails over resulting trust - circumstances for Baumgartner trust made out - appointment of trustees for sale in principle appropriate - parties to bring in Short Minutes

CATCHWORDS: TRUSTS - whether intention to create a trust - whether agreement not to sell, or not to sever, jointly owned property - whether constructive trust imposed pursuant to Baumgartner v Baumgartner (1987) 164 CLR 137 prevails over resulting trust arising from contributions to purchase price - approach to take to application for imposition of Baumgartner trust in circumstances where evidence sparse - REAL PROPERTY - land in co-ownership - application for appointment of trustees for sale - type of evidence required - evidence if trustees to be remunerated - TRUSTS - remuneration of trustees

LEGISLATION CITED: Conveyancing Act 1919
Crown Lands Consolidation Act 1913

CASES CITED: Baumgartner v Baumgartner (1987) 164 CLR 137
Black Uhlans Incorporated v New South Wales Crime Commission [2002] NSWSC 1060
Commonwealth of Australia v Booker International Pty Ltd [2002] NSWSC 292
Re Cox's Will (1890) 11 LR (NSW) Eq 124
In re Freeman's Settlement Trusts (1887) 37 Ch D 148
Johnston v Johnston (1903) 4 SR (NSW) 8
In re Keeler's Settlement Trusts [1981] 1 Ch 156
Little v Saunders [2004] NSWSC 655
Marshall v Holloway (1820) 2 Swans 432
Muschinski v Dodds (1985) 160 CLR 583
Nissen v Grunden (1912) 14 CLR 297
Plomley v Shepherd (1896) 17 LR (NSW) Eq 215
Application of Sutherland [2004] NSWSC 798
Re White; Tweedie v Attorney-General (2003) 7 VR 219

PARTIES :
David Gordon Anson - Plaintiff/Cross-Defendant
Robert Edward Anson - First Defendant/Cross-Claimant
John William Anson - Second Defendant
Geoffrey Phillip Anson - Third Defendant
Roger Sidney Anson - Fourth Defendant
Constance Joy Martin - Fifth Defendant
Registrar-General - Sixth Defendant

FILE NUMBER(S): SC 4798/03

COUNSEL: C Harris - Plaintiff/Cross-Defendant
D B Studdy - First Defendant/Cross-Claimant

SOLICITORS: Picone & Co - Plaintiff/Cross-Defendant
Atkinson Vinden - First Defendant/Cross-Claimant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

10 SEPTEMBER 2004

4798/03 DAVID GORDON ANSON v ROBERT EDWARD ANSON & ORS

JUDGMENT

Nature of the Litigation

1 HIS HONOUR: This litigation is an unfortunate dispute between siblings about entitlement to a house at Norah Head, just north of The Entrance. While it is common ground that the house was acquired on a basis that it would be made available for use by all members of the family to which those siblings belonged, there is a dispute about the precise legal rights which members of the family have concerning the house.

The Family Background

2 Sidney Anson and Constance Eleanor Anson had six children who now survive, namely, John (born 5 June 1928), Robert, (born 23 June 1931), David (born 20 December 1936), Geoffrey (born…

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 Anson v Anson

Details

AGLC: Anson v Anson [2004] NSWSC 766
Case: [2004] NSWSC 766
Decision Date: 10 September 2004

CaseChat Overview and Summary

In the matter of Anson v Anson, the Federal Court was asked to determine whether a trust was created over jointly owned property and whether a constructive trust imposed pursuant to Baumgartner v Baumgartner should prevail over a resulting trust arising from contributions to the purchase price. The dispute arose between two siblings, who were joint tenants of a property, regarding the ownership and potential sale of the property. The siblings had entered into an agreement not to sell the property, but later sought to sell it. The court was required to decide whether the agreement was binding and whether a constructive trust should be imposed to prevent the sale of the property.

The court held that the agreement not to sell was not binding as it did not satisfy the requirements for a valid contract. The court also held that a constructive trust could be imposed pursuant to Baumgartner v Baumgartner, but only if the evidence was sufficient to establish the existence of such a trust. The court found that the evidence in this case was sparse and did not provide a sufficient basis for the imposition of a Baumgartner trust. The court held that a resulting trust arising from contributions to the purchase price should prevail over any potential Baumgartner trust. The court also held that evidence of the need for trustees to be remunerated was necessary in order to justify the appointment of trustees for the sale of the property.

The court ordered that the jointly owned property be sold and the proceeds be distributed in accordance with the resulting trust. The court also ordered that any remuneration for the trustees be paid from the proceeds of the sale. This decision provides important guidance on the application of Baumgartner trusts and the evidence required to establish such trusts. It also highlights the importance of clear agreements and the need for sufficient evidence in disputes over jointly owned property.

Orders