Antill v Mostyn - [2010] NSWSC 587

No judgment structure available for this case.

CITATION: Antill v Mostyn [2010] NSWSC 587
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 and 14 May 2010

JUDGMENT DATE :
4 June 2010

JURISDICTION: Equity Division

JUDGMENT OF: Bryson AJ

DECISION: 1. Declare that the defendant holds the property known as 46 Adelaide Street, Bondi Junction, Lot 1 Deposited Plan 203349 being the land in Certificate of Title Folio Identifier 1/203349 on trust for the plaintiff.
2. Order that the defendant transfer the land in Certificate of Title Folio Identifier 1/203349 to the plaintiff.
3. Reserve further consideration of claims 5, 6, 7, 8, 9 and 10 in the Statement of Claim.
4. Reserve further consideration of costs

CATCHWORDS: TRUSTS AND TRUSTEES - liability of trustees - Chapman (plaintiff's grandfather) left half his estate to Chapman Trust to provide his daughter Mrs Nisbet with income for life remainder to her descendents - Chapman died in 1937, Mrs Nisbet became one of the trustees in 1953, sole trustee after deaths of others in 1960 and died in 2008 - Mr Antill her only child succeeded in remainder - challenge to Mrs Nisbet's investments and conduct of trust affairs - loans to herself were misappropriations - Mrs Nisbet acknowledged in 1983 that the assets were in her house - consideration of sufficiency of writing under s 23C of Conveyancing Act - her house was found to be subject to the trust and its proceeds were traced into second house which she bought in 1995 after selling earlier house - HELD that Mr Antill as remainderman was equitable owner of second house - Extensive consideration of facts

LEGISLATION CITED: Conveyancing Act 1919
Statute of Frauds
Trustee Act 1995

CATEGORY: Principal judgment

CASES CITED: Daniels v Trefusis [1914] 1 Ch 788
In the application of Handosa, Estate of Frank Robert Handosa (unreported) 21 April 1994
In the will of Sherriff [1971] 2 NSWLR 438
Re Mulligan [1998] 1 NZLR 481
Space Investments Limited v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Limited [1986] 1 WLR 1072
Tonitto v Barsal (1992) 28 NSWLR 564 (CA)
Wickstead v Brown (1992) 30 NSWLR 1
Woden Squash Courts Pty Ltd v Zero Builders Pty Ltd [1976] 2 NSWLR 212
Yates v Halliday [2006] NSWSC 1346

TEXTS CITED: Ford and Lee Principles of the Law of Trusts
Lewin’s Practical Treatise on the Law of Trusts 4th edition 1939

PARTIES: Michael Thomas Antill (Plaintiff)
John Joseph Mostyn (Defendant)

FILE NUMBER(S): SC 290565 of 2009

COUNSEL: J Needham SC with her R Antill (Plaintiff)
T L Wong (Defendant)

SOLICITORS: EH Tebbutt & Sons (Plaintiff)
Thomson Playford Cutler (Defendant)

- 47 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

FRIDAY 4 JUNE 2010

290565/2009 MICHAEL JOHN ANTILL v JOHN JOSEPH MOSTYN

JUDGMENT

1 HIS HONOUR: These proceedings relate to the interest of the plaintiff Mr Antill in a trust created by the will of his late grandfather George Oswald Dark Chapman who died on 2 March 1937. Half of the residuary estate passed under the will to a trust, which can be called the Chapman Trust, for the benefit of Barbara Burton Antill, one of his two daughters, and for her descendants. I refer to her as Mrs Nisbet. She was born on 6 March 1916 and died on 24 December 2008 aged 92. Mr Antill is her only child. Mr Chapman appointed Mr Davies and Mr Flockhart to be executors of his will and trustees of the trust. Mr Davis died in 1952 and this Court ordered that Mr Campbell be an additional trustee. Then Mr Flockhart died in 1953 and Mr Campbell appointed Mr Card and Mrs Nisbet as additional trustees by registered Deed of Appointment. Mr Card was an officer of the Public Trustee. In 1960 Mr Campbell and Mr Card both died. From 12 November 1960 until her death Mrs Nisbet was the sole trustee. When Mr Chapman died she was married to Mr Antill, the father of the plaintiff. She was later married to Mr Bridges, and later to Mr Nisbet, who died in 1971. Mrs Nisbet was a widow from 1971 until she died. Mr Nisbet made no provision for Mrs Nisbet in his will, and she made a claim against his estate, and recovered some provision, which she spoke of later as $7000.

2 Mrs Nisbet left a will dated 21 April 2005 which appointed Mr Richardson as one of two executors, and he obtained probate on 16 February 2009. Mr Antill brought these proceedings against Mr Richardson on 15 September 2009, claiming remedies in respect of the Chapman Trust and Mrs Nisbet’s conduct as trustee. Mr Richardson defended those proceedings, but unfortunately he died on 14 December 2009, the day when the hearing was to begin. Mr Richardson had appointed Mr Mostyn his executor, and this Court substituted Mr Mostyn as defendant by an order of 23 February 2010. Mr Mostyn obtained probate of Mr Richardson's will on 29 April 2010. Mr Mostyn is thus executor by representation of the will of Mrs Nisbet. He has not accepted office as trustee of the Chapman Trust and he is not willing to do so. Mr Mostyn is answerable only as executor for claims against the estates of Mrs Nisbet and of Mr Richardson.

3 The Court’s order of 23 February 2010 gave effect to an agreement between the parties limiting the issues to be dealt with at this hearing to Mr Antill’s claims relating to appointment of a new trustee of the Chapman Trust (claims 3 and 4), his claims relating to an order and directions for taking an account and inquiry, but not the holding of the account or inquiry (claims 5, 6, 7, 8 and 9). The hearing was also to deal with his claims for relief in relation to properties at 46 Adelaide Street, Bondi Junction and Unit 3/376 Edgecliff Road, Edgecliff (claims 11, 12, 13 and 14) and his claim for an order in the nature of an administration suit (claim 15).

4 The Defence, which was verified by Mr Richardson late in his life on 6 October 2009, admits and asserts that the assets of the Chapman Trust on 18 June 1997 amounted to $39,131 the amount which Mrs Nisbet paid into the account with Australian Industry Development Corporation. That investment is now represented by an account with Ord Minnett which at the date of Mrs Nisbet’s death contained $16,243.40, and the Defence admits that on 13 May 2004 she withdrew $25,000 and on 7 April 2006 she withdrew $4,000 from the account; and no justification is offered for these withdrawals, impliedly admitting that they were in breach of trust. The Defence concedes para (57(d)) that Mrs Nisbet’s estate is liable to repay $22,887.60, the difference between $16,243.40 now in the Ord Minnett account and $39,131 set aside in 1997.

5 Mr Antill’s claims are manifold, but what they principally involve are these:

a. That Mrs Nisbet held the Queen Street property on trust for the Chapman Trust because documents of hers show that she declared a trust of the Queen Street property to that effect or admitted that the property was held on that Trust.

b. That Mrs Nisbet, and hence those who represent her estate and successors in title, are estopped from denying that Mrs Nisbet held the Queen Street property on trust for the Chapman Trust.

c. Claims (a) or (b) lead to a claim that the Adelaide Street property is subject to the Chapman Trust, and that Mr Richardson should account to the Chapman Trust for the proceeds of his sale of the flat in Edgecliff Road for $480,000.00.

6 Mr Chapman by his will appointed two trustees, and all references in his will to trustees are in the plural. The will did not provide for appointments of new trustees and gave no authority for one trustee to act alone. The will made gifts of several specific items of property, referred to the balance of the estate as "my residuary estate" and created trusts of it. All assets were given to the trustees with power to convert assets into money or to retain them, and they were directed to pay just debts and other claims and to hold the balance on trust. The provisions of the will about dealings with assets of the Trust are lengthy, but they open with the words "as to the balance of my said residuary estate to invest the same." There was a power to pay out of income for the maintenance, education and advancement of the testator's children, and further provisions which took effect when Mrs Nisbet reached the age of 21 years, which she did a few days after Mr Chapman died. At some date not now known the trustees complied with this provision: "… My Trustees shall divide my said residuary estate into so many equal shares as there shall be children of mine then living and shall pay the income arising from one such share to my daughter Barbara Burton Antill for her life without power of anticipation and from and after the death of the said Barbara Burton Antill shall pay and divide such shares equally amongst such of the children of the said Barbara Burton Antill as shall be living at the date of her death and the issue living at the date of her death of such children of hers as shall then be dead …". There was a gift over to Mr Chapman’s daughter Janet Chapman if there were no children or issue of Barbara, with an ultimate remainder interest to Ethel Isabel Chapman, Mr Chapman's sister. Mr Chapman had only two children so half of the residuary estate went to the Trust for Mrs Nisbet and her descendants. Half went to a trust in favour of Janet Chapman, later Mrs Rymill, who died in 1983; the present litigation does not concern that trust.

7 The plaintiff Mr Antill became entitled to the whole of the assets of the Chapman Trust upon the death of Mrs Nisbet. Until Mrs Nisbet died at the age of 92 Mr Michael Antill's interest was always contingent upon his surviving her. Mr Antill himself has children.

8 The will contained the following investment power:

I DECLARE

WITHOUT

9 For the most of the time in question trust powers were not affected by the provisions of ss 14A to 14F of the Trustee Act 1995, which came into effect only in 1998. The Trustees were to hold on trust to invest, and they were to have power to invest, and to vary and retain investments. Notwithstanding the breadth of the investment power, including the words "full and absolute power", " as they shall see fit" and "unfettered discretion”, over the money to which the investment power refers - "such sums" – what the trustees are empowered to do is to invest; this limits the dispositions that trustees can make. The limits of investment are stated in In the will of Sherriff [1971] 2 NSWLR 438 (Helsham J) at 442C-E:

Investment of trust funds will ordinarily mean the laying out of trust moneys in acquisition of property with the object or purpose of obtaining some return by way of income or pecuniary return to the benefit of those ultimately entitled. In its discretionary meaning the word "invest" in relation to its monetary context is, in the revised third edition of the Shorter Oxford Dictionary , given a primary meaning as follows: "to employ (money) in the purchase of anything from which interest or profit is expected." There is added a colloquial meaning: "to lay out money."

Trustee Act

10 The power of investment in the Chapman Trust relates only to laying out money to produce income. The powers conferred on the trustees are qualified by the need, in the exercise of a power, to exercise it in good faith for the purposes for which it was conferred. In the Chapman Trust this requires holding a fair balance between the interests of the person entitled to income and interests of the class entitled to capital, so that neither is unfairly advantaged over the other. Regard must be paid to retaining the value of capital as well as to obtaining a reasonable level of income. The evidence shows clearly that Mrs Nisbet did not maintain a reasonable balance. The value of the capital was largely destroyed by inflation. In an age of inflation, a loan by a trustee who has the life interest, denominated in money and to herself, is in the plainest way a sacrifice of the interests of the remaindermen in her own favour. The remaindermen suffer from inflation while she benefits. Such an investment is indefensible. Mrs Nisbet always owned one or more houses for herself, and their values rose strikingly. She knew what to do, but she only did it in her own interest.

11 I addressed the influence of inflation on decisions on the investment of trust assets in In the application of Handosa, Estate of Frank Robert Handosa (unreported) 21 April 1994. At p4 I referred to evidence of projected income and said:

All these projections are based on recent experience and, of course, forecasts based on projecting the investment experience of a current year or a few past years are extremely uncertain. On the other hand, it is common experience that, while it is always possible that in the short run there will be sharp reverses or apparently large gains in investments in listed shares, or in unit trusts which invest in them, over a long period of time the influence of such reversals and gains becomes less significant. Over extended periods, and with the benefit of continuing and prudent management, gains in the capital value of such investments can be expected to accrue.

12 Mrs Nisbet did not arrange the appointment of one or more other or additional trustees. As life tenant she was unsuitable to be a trustee of the Chapman Trust at any time, and it seems remarkable that she allowed herself to remain sole trustee, an extremely exposed position for a life tenant. Mrs Nisbet committed most of the breaches of trust which trustees can commit. She did not keep accounts of the Trust or adequate records. She gave various explanations which are unreliable, obviously so. Such information as is available has to be put together from letters and papers found when Mr Richardson, who was familiar with her affairs, searched her papers after her death.

13 There are very few records or accounting documents from the period before 1960. No annual or other periodic Accounts or other clear statements of trust affairs during Mrs Nisbet's sole trusteeship have ever been seen by Mr Antill: she produced none to him and none were found when Mr Richardson searched her papers after her death. There are copies of tax returns for the Chapman Trust for a few years, but these are not a complete series. Estate Tax Returns are completely inadequate as accounts by trustees: they deal with a different subject to accounting for trust administration, and they speak in a statutory context and for purposes which accounts of trust administration do not have. A trustee's accounts prepared on a proper basis would have shown the assets of the trust at the opening and closing of each accounting period, valuations of assets by the trustees, dates and details of investments and disposals with amounts expended and realised, receipts and expenditures, allocations of receipts and expenditures to income or capital account and payments to beneficiaries. Beneficiaries do not receive accounts as a reward for diligence: keeping and having accounts is a central part of a trustee's duty, not a response to enforcement. A trustee does not escape liability by not having accounts or by not saying or knowing what has happened: the less the trustee can explain, the broader the brush the Court must choose to establish entitlement.

14 Mrs Nisbet did not make or maintain investments which gave protection against inflation. From about 1970 if not earlier there were few if any investments in public company shares, there was no other investment which was not subject to the adverse effects of inflation, and almost all investments which can be seen were denominated in money. She did not maintain records or earmarks to effectively distinguish property which belonged to the Chapman Trust from property which she owned or was subject to some other trust. There were no means by which a person other than herself, such as a successor trustee or a person interested in remainder, could establish what the trust assets were, in any clear way.

15 Mrs Nisbet did not present accounts of her dealings with and of the assets of the trust to other persons interested, whether Mr Antill or anyone else. She was not obliged to do so, unless they were called for, but it would have been a prudent step to take. When Mr Antill did call for information she gave him no useful information. She may herself have had some understanding or personal view of the distinction between trust assets and her own assets, but this was not in accessible form. When Mrs Nisbet did give Mr Antill explanations of trust affairs they were obviously not complete, they were not well expressed, they were not always consistent with each other and they were generally unreliable. She gave him strong assurances about the protection of his interests which she later disavowed.

16 Mrs Nisbet engaged in self-dealing, and advanced moneys to herself or interests closely related to her, sometimes nominally at rates of interest although interest was not paid, and sometimes on bases in which no interest was payable. This placed her in conflicts of interests which meant that the protection which should have been available against imprudent investment decisions was not available. These advances inappropriately advantaged her and cast disadvantage from decline in the value of money on those interested in remainder. They cannot be thought of as investments, and they could not possibly have been exercises in good faith of the power of investment for the purpose for which it was conferred.

17 It is a truism that a wide power of investment, or absolute discretion to make investments does not authorise a trustee to lend trust money to himself, or in less elegant language, to take trust money, or to make any investment which is not the product of an impartial judgment as to the appropriateness of the investment. The plaintiff’s counsel referred in this connection to Lewin’s Practical Treatise on the Law of Trusts 4^th edition 1939 at 380 and the authorities there referred to; this bears out the submission, which is so plainly correct as to be a statement of the obvious. Counsel also referred to Ford and Lee Principles of the Law of Trusts paras [9660] which is a strong statement to the same effect, and gives supporting authorities, including Wickstead v Brown (1992) 30 NSWLR 1 at 13 and Space Investments Limited v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Limited [1986] 1 WLR 1072 at 1073-4 (Lord Templeman).

18 For some years from about 1983 to 1997 Mrs Nisbet treated the Chapman Trust as having been in some way terminated or wound-up. There was no basis for doing this. Then in 1987 she established what she referred to as an account of the trust with money which she paid in from her own resources. There has never been any clear explanation of how the amount which she paid in was established. At later times she made withdrawals from this account, for which she left no explanations at all.

19 The power of investment, however broad it is, does nothing to authorise trustees to make investments in their own interests or to have dealings with themselves with trust funds. The direction in the will to the trustees to pay income to Mrs Nisbet for her life is expressly a direction "without power of anticipation" so that it was outside power to pay herself more money than was presently available from income in anticipation of some future entitlement. Loans of trust moneys by Mrs Nisbet to herself, if they could be called loans, were altogether outside her power as trustee for a cumulation of reasons; she had no power to deal with herself, she had no power to make an investment for the purpose of conferring a benefit of herself, she had no power to anticipate future entitlements or to take of future entitlements into consideration when deciding on an investment, and by making a loan, to herself or to anybody else, for a long term or an indefinite term she did not hold a proper balance between the interest of herself in income and the interests of those classes interested in capital, because of the effect of inflation. To advance money to herself without interest was to sacrifice the interests of the capital account for the advantage to herself of not receiving income and hence no paying income tax: exercise of the power of investment in good faith could not produce this results. Lending money to herself was unsatisfactory in other ways in that, although these loans are sometimes referred to as mortgages, no mortgages were registered, it is improbable that any existed, and in some cases the mortgages were not first mortgages but subsequent mortgages; these circumstances, while perhaps not taking such loans outside the power of investment, strongly support the conclusion that the power was not exercised in good faith and for a proper purpose.

20 All in all, her performance as a trustee could hardly have been worse. Overlying any interpretation of events are her profound unsuitability to be a trustee or sole trustee, a long continued state of conflict between herself and Mr Antill and her engagement in dealings in conflicts of interest. Courts have tended to be severe where the trustee has failed to maintain accounts – Yates v Halliday [2006] NSWSC 1346 at [62], where authorities are given. There is discussion in Yates v Halliday of the accounts which it is customary to require of trustees, with references to case law. Difficulty in ascertaining trust affairs where accounts had not been kept cannot work to the advantage of the trustee; if detailed accounting is not possible, the Court should in my opinion do its accounting using whatever information is available, with what may be broad resort to probabilities to ascertain matters which the defaulting trustee has failed to make ascertainable.

21 Mrs Nisbet purchased a house in Oswald Street Rushcutters Bay in or about 1953, and lived there until she sold it in 1964. She purchased a house in Queen Street Woollahra for £12,500 in 1964 and lived there until she sold it in May 1995 for $1,050,000. She purchased a house in Nelson Bay in March 1971 for $12,500 and sold it in 1986 for $60,000. This was an investment property from which she received rental income. Mrs Nisbet purchased a house in Adelaide Street Bondi Junction in May 1995 for $315,000 and lived there at most times for the rest of her life. It now forms part of her estate. Under her will it passes to Mr Richardson. She purchased a flat in Edgecliff Road Edgecliff in May 1995 for $210,000. She transferred this flat to Mr Richardson as a gift in October 2000. Mr Richardson sold it in December 2006 for $480,000.

22 Chapmans Pty Ltd, later Chapmans Ltd was a company formed by Mr G O Chapman in 1922 to carry on a business which he had formerly conducted in a partnership as manufacturers of canvas goods and mattresses and general softgoods wholesalers. The company came to own premises at 188-190 Sussex Street Sydney which late in the company's life were of considerable value. The company became a public company in 1948 and went through adverse circumstances in the early 1950s, followed by a slow re-consolidation. It was then taken over by Alexanders Ltd in November 1968. Mrs Nisbet sold or otherwise lost ownership of the shares in Chapmans Ltd; she disposed of most of those shares before the takeover, although the position does not clearly appear.

23 The principal assets in Mr Chapman's estate when he died were 4740 fully paid £1 shares in Chapmans Ltd valued for Death Duty at £6,270 15s or £1 6s 5d each. He also owned 400 £1 Preference Shares valued at £120. He made specific gifts of his motor car and a few items. His other assets which would form part of residue were given values which after deducting debts amounted to about £815. The Estate Income Account and Balance Sheet as at 30 June 1942 are in evidence (Tab C2). There had not been an appropriation of the residue between beneficiaries at that time. The Estate Capital was £10,627 7s 1d, almost entirely represented by shares in Chapmans Pty Ltd: 7140 Ordinary Shares valued at £9,430 15s and 1000 Preference Shares valued at £1,000. They were also 100 Ordinary Shares in William Adams & Co Ltd valued at £85. In 1946 the trustees with the consent of the beneficiaries purchased additional shares in Chapman Pty Ltd with estate funds and borrowed money. In 1948 Chapmans Ltd was listed on the Stock Exchange. At some stage the capital was reorganised and the number of shares increased.

24 Statement of Claim para [22] is admitted on the pleadings.

On or about 15 October 1953, the assets of the Chapman Trust, and the value of those assets, was as follows:

25 The next accounting document relating to the Chapman Trust is the 1965 income tax return which includes a list of investments and other estate assets and income; this deals only with the Chapman Trust.

26 In the Tax Return to 30 June 1967 it is stated that the trust owned 100 shares in Chapmans Ltd with a market value of $42 and it is stated that 20,800 Chapman shares were sold during the year at a capital loss and "funds received were lent on mortgage on home of Mrs Nisbet ". It is also stated that the sale price of the Chapman shares was $8,944 and that the mortgage loan to Mrs Nisbet on her home at Queen Street Woollahra was $9,000 and "no interest yet paid". There were only minor changes in other shareholdings but the value given for shares after this disposition was $4,778 at cost, which should be contrasted with the value given for shares in the return to 30 June 1965 of £8,525. The total estate capital in the tax return to 30 June 1967 was said to be $19,320, and by far the greater part of this totalling $14,500 consisted of self-interested advances of $5,500 to Bridges Associates (which refers to a company in which Mrs Nisbet was the principal shareholder), and the rest to Mrs Nisbet herself. Both these loan advances are referred to as mortgage loans although searches have established that there were no registered mortgages. It is stated for both loans that no interest was paid. Mrs Nisbet held the majority of shares in Bridges Associates Pty Ltd, and it was the vehicle through which she conducted business as an interior decorator.

27 The loan to Bridges Associates had evidently existed at least two years before as it appears at £2,750 (the same amount of money) among the investments at 30 June 1965. After 1967 share investments were relatively small parts of the assets appearing with tax returns; the same list at cost totalling $4,778 appears in the 1968 tax return. By the 1970 tax return shares had dwindled to $1,997 at cost; the same in the 1971 tax return; the cost of shares was shown at $4,070 in the 1972 tax return and thereafter there are no lists of investments showing shares. Mrs Nisbet stated elsewhere that she terminated the trust in 1973.

28 In these Estate Tax Returns after 1967 loans to Mrs Nisbet or interests associated with her continue to appear. In the 1968 return they totalled $14,076 and income $1010 was attributed to one of them, but for the loan on the house at Queen Street Woollahra it was stated "no interest paid yet". In the return to 30 June 1970 there were listed loans to Bridges Associated Pty Ltd (which refers to her company) and to Mrs Nisbet totalling $16,765, income of $840 was returned for the loan to Bridges Associated Pty Ltd, but for the loan to Mrs Nisbet herself it was stated "no interest paid as all estate income reverts to Mrs Nisbet". In the Return to 30 June 1971 the entry suggests that the loan to Bridges Associates had been repaid by that date and the interest received from it that year was $840. The mortgage loan to Mrs Nisbet was shown at $6,991, again with the statement that no interest was paid as all estate income reverted to her. It was stated that investments included CAGA $10,500; the amount is that formerly on loan to Bridges Associates Pty Ltd and I infer that the CAGA investment represented repayment of the loan. In the return to 30 June 1972 there is a reference to 188 Queen St Woollahra suggesting that there was a mortgage over the property, but there was no registered mortgage, and the loan was said to be $15,418. There is a note "no interest paid as all estate income reverts to Mrs Nisbet." The total value of trust assets is shown as $19,488. I infer that in some way the money deposited in CAGA or most of it went to Mrs Nisbet and explains the stated increase in the loan to her.

29 A note on the copy of the 1971 Return found among Mrs Nisbet's effects after her death shows against the CAGA investment "Loan 3 mths - unsecured notes. Since withdrawn and used $6,500 for Nelson Bay property and $4000 invested in shares.” The probability is that this note, which was made on Mrs Nisbet's copy of the Return kept by her recording business affairs of the estate, was made by her or under her authority, and it is evidence of an admission by her or made on her behalf. There are traces of confirmation in the increase in the share investments in the tax return to 30 June 1972; although the increase does not correspond with the statement "$4000 invested in shares".

30 In Mrs Nisbet's own tax return to 30 June 1972 there is a reference to rent received from 35 Thurlow Ave Nelson Bay and a note "house bought during advances from the estate of GOD Chapman.” The plaintiff's counsel sought to establish that $6,500, referred to in her earlier tax return and associated with Nelson Bay in the note on the tax return, was used for or towards the purchase of Nelson Bay. This is not altogether inconsistent with her having treated a generally corresponding increase in the loan to herself as part of the mortgage on Queen Street. However any interest of the trust in Nelson Bay cannot now be identified after sale of the property in 1986, and nothing is to be gained from pursuing whether there was tracing of an interest in the Nelson Bay property to a conclusion. To my mind the more probable situation is that whether or not Mrs Nisbet thought it had something to do with the Nelson Bay property, the $6,500 referred to or some part of the CAGA investment wholly or partly explains the increase in the mortgage loan to $15,418 referred to in the Return to 30 June 1972.

31 The meaning of these entries includes that by 1965 Mrs Nisbet had made a loan to Bridges Associates, that is, in effect to herself of £2750 which was more than a quarter of estate assets, and that by 30 June 1967 she had made self-interested loans totalling $14,500 which was about three quarters of the value of the estate assets. There are some intermediate movements which cannot be clearly followed but in the Return to 30 June 1972 it is shown that $15,418 was a mortgage loan to Mrs Nisbet herself and that that no interest was paid; this was well over three quarters of the Trust assets. Thereafter this form of information ceases to be available.

32 In my opinion the investment in what was called the mortgage loan to Bridges Associated which amounted to £2750 on 30 June 1965 (equated with $5500) and the mortgage loan of $9,000 to Mrs Nisbet which had occurred by 30 June 1967, and whatever transaction it was that brought the total to $15,418 were dispositions in breach of trust, and were not exercises in good faith of the power of investment for the purpose for which it was conferred. Indeed they were not investments at all as to the parts which did not produce interest. In a proper accounting, later dealings with these loans, apparent movements of amount and movements between them should not be treated as involving the Chapman Trust; but Mrs Nisbet should be charged with these two sums on the footing that she misappropriated them. She should be charged as if she had invested them in some reasonably prudent investment which had fair regard to the interests of life tenant and remaindermen; the capital which such an investment would have produced at the time of her death should be charged against her estate, while the interest should be disregarded. Calculation of her liability cannot be precise but could be made by studying share market indices of the escalation of reasonably prudent share market investments over the periods involved. I refer to share market investments because they were an established aspect of estate administration when Mrs Nisbet became sole trustee and because they are reasonable means of holding the balance of interests.

33 After the estate Tax return among Mrs Nisbet’s papers for the year to 30 June 1972 there is an interval of many years, until her papers included an income tax return for the year to 30 June 1999. She did not have an estate tax file number until late in this interval and it is very improbable that there were any tax returns for the estate during the interval.

34 Mr Chapman’s sister Ethel Chapman died on 24 March 1970 and left significant benefactions to Mr Antill her great nephew and to Mrs Nisbet her niece. Mrs Nisbet was entitled to the income for life of one-third of Ethel Chapman’s estate. Mr Antill used his benefaction to acquire an investment property at Corlette near Port Stephens and also found and recommended to Mrs Nisbet the investment property in Thurlow Avenue Nelson Bay which she bought in March 1971 for $12,750. Mrs Nisbet indicated to him that she was interested in raising money rather than having a continuing share of her aunt's estate. Mr Antill discussed this with Mr John Helmrich, the solicitor who then advised Mrs Nisbet. Mr Antill had business with him, as he sold an apartment at Darling Point to Mr Helmrich in September 1971. While negotiating for that sale he told Mr Helmrich that he was interested in buying out Mrs Nisbet's interest in the Chapman Trust, but Mr Helmrich said "I don't think that is advisable because the estate is invested in real estate so that Barbara has the opportunity in living in it during her life and you will eventually gain the capital gain when she dies”; or words to that effect. Mr Antill's evidence of this matter and the quality of his recollection were challenged in cross-examination but I accept that this evidence is correct in substance. It does not constitute evidence of a statement or admission on behalf of Mrs Nisbet that the Chapman Trust was invested in real estate, but it does have a part in explaining Mr Antill's later conduct and evaluating the defence of laches. Eventually Mr Antill did buy Mrs Nisbet's life interest in the Ethel Chapman estate, by a deed of 21 December 1972; and became the sole owner of that residuary estate.

35 In the year to 30 June 1973 Mrs Nisbet lent made two loans totalling $20,000 to Cawarrie Pty Ltd, a development company controlled by Mr Antill, and he created a loan account in the books of Cawarrie crediting her with $20,000 accordingly. His evidence, which I accept, shows that when these two loans were made they were made, so far as anything Mrs Nisbet told him, as loans by herself; she did not tell him that they were loans by the Chapman Trust. Then after some time she told him that the loan was to be treated as a loan by the Chapman estate; she said to this effect: "Would you please change the loan that I made to you to make it a loan from the estate of the late GOD Chapman". She did not explain why this was to happen, and Mr Antill did not question her about it but acted accordingly. He made entries in the accounts of Cawarrie transferring her $20,000 loan account to a loan account of the Chapman Estate as of 1 January 1975. This loan account continued to exist until he repaid it to Mrs Nisbet out of the funds of Cawarrie Pty Ltd early in 1983. For some years Cawarrie Pty Ltd paid interest on this loan account to her on behalf of the trust. At first the interest rate was 10% p.a., and in the last years of the loan he paid higher rates of interest. Events relating to the loans to Cawarrie did nothing to dispel the influence of Mr Helmrich’s statement that the estate was invested in real estate; Mr Antill had not been told what in whole the assets of the trust were. In correspondence many years later Mrs Nisbet said to the effect that the money lent to Cawarrie was not sourced from the Trust.

36 These transactions were put to Mr Antill in cross-examination in support, as I understood it, of suggestions that he knew and approved of the use of trust assets to make a loan to Cawarrie. I am satisfied that he did not know of that, and that he made entries creating a loan account in favour of the Chapman Estate only after the loans had existed for a considerable time and only at the unexplained request of Mrs Nisbet. At the time of these events Mr Antill did not know and was not in a position to know Trust affairs generally, or to know whether the Trust had $20,000 to lend or what part of trust assets that would represent.

37 It was unremarkable that Mrs Nisbet should have $20,000 of her own to lend to Cawarrie in the first part of 1973. She had received $12,147 for her interest in the Ethel Chapman estate a few months before she made the first loan of $13,000 in March 1973. Mr Antill's evidence shows that these loans when made were not associated with the Chapman Trust by anything that Mrs Nisbet told him; and I accept this evidence. To him the transaction was a loan by Mrs Nisbet to Cawarrie at interest, which he paid.

38 Mr Antill sent Mrs Nisbet a cheque for $20,700, interest due and repayment of the loan, on 15 January 1983. Soon afterwards Mrs Nisbet asked him to change the cheque so that it was payable to her personally. She also said that the interest should have been paid direct to her and not to the Chapman Trust, and in the course of an argument about this she said "The bank manager has advised me to close the Chapman Estate trust account". Mr Antill said to the effect that she could not close the account and could not just open trust accounts at will. Mr Antill wrote to Mrs Nisbet on 20 February 1983, and among the matters dealt with he told her that he felt she was being badly advised by a bank manager, and gave reasons. Not long afterwards Mr Antill sent Mrs Nisbet another cheque which paid out an entitlement she had in the Cawarrie Superannuation Fund, and made some comments which illustrate that the personal relationship between them was then very poor.

39 In December 1974 Mrs Nisbet gave Mr Antill a copy of a letter from chartered accountants to her (Ex AC 29) with some advice about recommended transactions connected with estate duty. The letter proposed some dealings which are difficult to understand, but they included raising $20,000 by selling Mrs Nisbet's property at Nelson Bay to her company Bridges Associates Pty Ltd, giving the money to Mr Antill and then treating it as lent by him to Bridges Associates. Mr Antill (not surprisingly) did not understand the proposed arrangements and did not do anything to participate in them. Mrs Nisbet's request to change the loan to Cawarrie from a loan to her to a loan from the Chapman Trust followed soon afterwards. He was not told and did not ask why she made this change; he made entries in Cawarrie’s books to comply. In these events he was not told anything from which he could understand the state of affairs of the Chapman Trust.

40 There were unfortunate aspects of the relationship between Mrs Nisbet and Mr Antill and these were long-continued. By 1982 and 1983 the personal relationship had deteriorated, he says, "to the stage where it was intolerable". Mr Antill had been a director of Bridges Associates Pty Ltd for many years, but was altogether inactive as a director. Mrs Nisbet asked him to sign an Annual Return as a director, and she told him that Mr Helmrich the other director was overseas. Mr Antill signed the Annual Return, although he was reluctant to be involved because of possible conflict with his employment in the Australian Bureau of Statistics, and he resigned as a director in January 1983. This led to arrangements in which Mr Antill was paid $2000, nominally as repayment of loan of £1000 he had made to Mrs Nisbet in 1958, and transferred shares in Bridges Associates Pty Ltd which he did not know or not longer remembered had been issued to him.

41 Mrs Nisbet sent Mr Antill a letter dated 9 May 1983. The letter is typewritten and unsigned, but there is no room for doubt that it was authentically her letter; she referred to it in a later letter which she signed, and she kept a carbon copy among the papers which were found after her death. Its authenticity is accepted by the defendant. This letter received a great deal of attention in the evidence and Counsel’s submissions. With the letter Mrs Nisbet returned a cheque from the Cawarrie Superannuation Fund, which Mr Antill had sent to her to satisfy what he regarded as her entitlement in the Superannuation Fund. Mrs Nisbet made some intemperate observations about the circumstances in which the cheque was sent to her, and she made some comments on their personal relationship. In his letter in reply soon after (tab 37) Mr Antill dealt at length with the circumstances in which the cheque had been sent; it seems that he again forwarded it to Mrs Nisbet. He commented on some other matters and his reply was expressed forcefully. The terms of these letters show the very poor state of the relationship at that time; mutual hostility. Communications ended until 1997.

42 Mrs Nisbet's letter of 9 May 1983 includes:

What has made me angry and disgusted was your outburst when I said I propose closing the bank account held in the name of the Estate of the late GOD Chapman.

You must surely be aware that the estate is in 188 Queen St and will pass to you when I die. In the meantime it provides a home for me, and a small income.

(I might add the estate has increased considerably in value).

The Bank account was opened in the name of the Estate of the late GOD Chapman for the interest on the $20,000 which I loaned Cawarrie. $13,000 from E I Chapman & $7,000 from the Nisbet settlement. My reason for doing this was to safeguard you from any claim that the Nisbets might fancy they had, if I should have died suddenly at that time. In actual fact it should have been titled the Estate of the late E I Chapman.

43 The Nisbet settlement refers to money which Mrs Nisbet had recovered after litigation from the estate of her late husband. The meaning of her references to the bank account and the loan of $20,000 is plainly that the $20,000 did not come from the Chapman Trust but from other sources, and that she had opened a bank account in the name of the Chapman Estate and paid the interest on the $20,000 into the bank account as an exercise of concealment from the Nisbets. Her letter also means plainly that the assets of the Chapman estate had been invested in her house at 188 Queen St Woollahra, and had increased considerably in value, and that she had acted honestly and kept the house rather than selling it so that it could pass to Mr Antill after her death. The reference to dishonesty carries the clear implication that she had followed the honest course of preserving the Queen Street house as a Trust asset and had not sold it for her own advantage. The meaning of the letter includes that it asserts or admits that the assets of the Chapman Trust had been transmuted into the house in Queen Street; ambiguously, the house at Queen Street may have been wholly purchased or retained with Trust assets, or purchased with Trust assets mixed with other resources, or become subject to the Trust in some other way. If the house represented a mixture of resources belonging to the Trust and resources belonging to Mrs Nisbet it should, in my opinion, be treated wholly as a Trust asset unless and until Mrs Nisbet as trustee or successors to her estate establish some appropriate basis for apportionment.

44 It is not possible to understand fully what acts and events were in Mrs Nisbet's mind when she said "you must surely be aware that the estate is in 188 Queen St and will pass to you when I die." She purchased 188 Queen Street in 1964 and it is unlikely that she then had significant assets derived from the Chapman Trust and applied them to the purchase. It is possible that she then had assets derived from sale of shares in Chapmans Ltd as it is not known when she sold such shares; but on the whole this is improbable. Later however according to statements in tax returns she treated various sums of money which were Trust assets as mortgage advances to herself secured on Queen Street, although no registered mortgages have been found. Then at some stage, more than 10 years before 9 May 1983, references by her to any such mortgage or debt ceased. While the underlying dealings with assets and Mrs Nisbet's concept of them cannot be clearly known, the letter is a clear admission that the house in Queen Street was a Trust asset, or that the assets of the Trust were in some way in it, and that the house was to pass to Mr Antill when Mrs Nisbet died, as would be his entitlement under the Chapman Trust (assuming that Mr Antill were still alive when she died).

45 The conclusion which in my opinion is justified, that the house at 188 Queen St Woollahra was or should have been treated by Mrs Nisbet as an asset of the Chapman Trust is only a step towards resolution of the rights in suit because Mrs Nisbet sold that house in May 1995 for $1,055,000, and purchased two other properties. The total of their purchase prices was $525,000, only half the proceeds of sale. It is admitted that she purchased those properties with the proceeds of sale of the house in Queen Street. Accordingly they should be treated as Trust assets.

46 There was one brief meeting in 1997 when there was no significant communication. Then Mrs Nisbet wrote to Mr Antill on 21 April 1997 asking him to come to see her and saying "… there are one or two facts that need to be straightened out before it is too late." This led to a meeting at her house at Adelaide Street Bondi Junction on 24 April 1997. In the course of the meeting Mrs Nisbet produced some documents from her desk, waved them about and said "This is what is left of the Chapman Estate. There had never been very much in the estate and I looked after it much better than the Public Trustee could have." The meeting produced no significant result. Mr Antill wrote Mrs Nisbet a letter (Tab 45) later on the same day with statements and comments about events at the meeting and the discussion. He said to the effect that Mr Chapman's estate needed straightening out, and listed and referred to a number of papers relating to the estate which he had. The last passages in the letter were these: (Tab 45, p212)

Absent from my papers are any trustee letters setting out the position of the GOD Chapman estate – indeed I have never received anything at all in this regard. Several years ago I did have some discussion with Mr Rankin who had found some of the trustee’s papers relating to the years prior to the 1950s and I directed him to contact you, which he advised me he did.

The foregoing sets out the matters that I see as needing resolution.

Failure to resolve this now will probably mean that resolution will take place after you die, when lawyers and court costs will probably take most of the funds remaining in your estate.

47 A clearer request for clear information would be hard to imagine.

48 Mrs Nisbet replied by letter of 1 May 1997 (Tab 46) and said (p213):

I do not know what information you are seeking in your letter dated 24th April.

The purchase and sale of 188 Queen St had nothing whatsoever to do with the estate of the late GOD Chapman.

49 Mr Antill replied on 9 May 1997 (Tab 48) commenting on statements in her letter of 1 May. Dealing with a reference to the purchase and sale of 188 Queen Street he said "this statement completely contradicts everything you have ever said to me or written to me concerning the estate of the late GOD Chapman." He then made quotations from letters which he held and said "In the light of these two conflicting letters I do think you owe me a statement as to what is the current situation of the estate of the late GOD Chapman now that 188 Queen St has been sold." He again referred to his requests for a statement as to the current position of the estate. He enclosed copies of some letters he had.

50 Mrs Nisbet replied by letter of 16 May 1997 (Tab 50). The letter was in these terms: (p222-223, Tab 50)

Re your letter of 9 ^th of May in answer to mine of 1 ^st May - I stated that the purchase & sale of 188 Queen St had nothing whatsoever to do with the estate of the late GOD Chapman.

When I purchased 10 Oswald St in 1953 -- & after that 118 Queen St in 1964 the estate of GOD Chapman was controlled by the then Trustees, and was not used in the purchase of either of those propertys as I had no access to the capital sum --

In the 70’s after Mr Card’s death, Helmrich applied to the court permit to take over the trusteeship of the estate -- you are holding the documents taken from Helmrich & Hickey.

It was about that time that Boris Ganke was about to take over Chapman's.

I wish to control the estates so that the Chapman shares could be sold & reinvested.

I doubt if the Public Trustee would have been as concerned about such a small estate as I was --

Was fully discussed with you at that time --

In my letter to you of 9 ^th May 1983 our relationship at that time, I thought, was a very good one of mother and son, and in my will had left you 188 Queens St, & any other money I had.

The relationship has to deteriorated to such an extent I see no reason why you should inherit the whole of my estate.

51 This letter contains a number of passages which are untrue or anomalous. It is not possible that as of 9 May 1983 she truly thought that their relationship was a very good one. What the letter says about interests in 188 Queen Street is inconsistent with what she had said in her letter of 9 May 1983. The account in which the advantages to pass Mr Antill on her death were her testamentary benefaction was markedly anomalous when taken with the statement in the letter of 9 May 1983. It was inconsistent with that letter that Mrs Nisbet should think she was in a position to make a different testamentary disposition. Other aspects of her letter are incorrect. There was no application to the Court ever for Mrs Nisbet to take over trusteeship, so Mr Antill could not have been holding documents about it. There was an application to the Court for appointment of new trustees in 1952, and that did not relate to the appointment of Mrs Nisbet. Mrs Nisbet became a trustee in 1953 and sole trustee in 1960, and there was no application to the Court about these events. Mr Ganke took over Chapmans in or about 1968. Mr Antill firmly denied that events such as those referred to were discussed with him, and in my finding this evidence is reliable.

52 In June 1997 Mrs Nisbet had meetings with Mr Coughtrey of Haines Norton, Chartered Accountants. After reviewing the firm’s file and meetings with her, Mr Coughtrey wrote a letter to Mr Antill on 18 June 1997 (Tab 52). Mr Antill responded by writing to Mrs Nisbet on 21 June 1997 (55) in rather intemperate terms. This appears to have been the last communication between them before her death more than 11 years later.

53 Mr Coughtrey gave evidence on affidavit in the proceedings, and was not cross-examined. In his evidence he spoke from documents and records and appears to have had little if any recollection of the events. Apart from attendances in June 1997 he did not do any other work for Mrs Nisbet, who had previously been attended to by Mr Chin until he retired on 31 May 1997, and was later attended to by Mr Giannuzzi. It was Mr Coughtrey’s evidence that the opinions expressed in his letter of 18 June 1997 were his opinions at that time and were based on documents he had received from Mrs Nisbet and information available from records and files of his firm which are not now available.

54 On or about 18 June 1997 Mrs Nisbet opened an account with Australian Industry Development Corporation (AIDC) in the name of the late GOD Chapman to be operated by herself alone, and transferred $39,131 into the new account from another account then held at AIDC in her own name. She provided for interest on the new account to be paid to her own existing account at AIDC. Also in June 1997 Mr Coughtrey's firm made arrangements for the estate to obtain a tax file number, a sufficient indication that there had not been any estate income-tax returns for some years, as tax file numbers had been required since about 1988. Thereafter estate income-tax returns resumed, and related only to income from the AIDC investment or successor investments.

55 Mr Coughtrey's letter of 18 June 1997 (Tab 52) was in the following terms:

Your mother recently brought to my office the file for the abovenamed estate and spoke to me about your inquiry as to the capital of the Estate. The file indicates a procession of investments of the capital of the Estate.

In particular, the file indicates that the respective share of the capital of the Estate back in 1937 amounted to £3,600. At the time your mother was appointed trustee the capital then amounted to $19,484. In 1988 the trust investments totalled $30,213.39 and as at today's date the investments total $39,131.00.

As life tenant under the Estate, your mother is entitled to all the income from the Estate. Much of the increase in the investments of the Estate between 1988 and today's date appears to be attributed to income which has been reinvested and not drawn upon by your mother. The benefit of the reinvestment therefore accruing to the ultimate beneficiaries under the Estate and not your mother.

56 This letter is the closest approach to an accounting or explanation for Mrs Nisbet's dealings with trust assets that Mr Antill ever received. As an explanation of the then state of Trust affairs or of what had happened, the letter is nonsense. No file which indicates a procession of investments of the capital of the estate is available after Mrs Nisbet's death, either from her own papers or from those of Mr Coughtrey's firm. No file or document has been found which suggests that estate capital amounted to $19,484 when Mrs Nisbet became a trustee in 1953. It is admitted on the pleadings that the assets of the Trust then had a total value of £13,240. No file or documents have been found which show trust investments at $30,213.39 in 1988, and there is no explanation of the calculation of investments at 18 June 1997 at $39,131. The events of opening the AIDC account and depositing $39,131, referred to in the letter, themselves demonstrate that there had not been appropriate separate investment of estate assets.

57 In his reply of 21 June 1997 to Mrs Nisbet (Tab 55) Mr Antill said:

Thank you for establishing the AIDC account to the estate of the late GOD Chapman.

58 On the evidence before me I do not understand why Mr Antill said that Mrs Nisbet started the idea that the estate was in 188 Queen St in 1970, or why he suggested that she ceased to maintain that idea in 1983; she first expressed a different idea in April 1997. His letter was not well-considered and seems from its terms to have been written in a rage. In my opinion there is no ground upon which his statement about the accountant's letter and the resolution of doubts prevents him from establishing in the present litigation what the assets of the Chapman Trust were or should have been.

59 In 1997 Mrs Chapman made three statements about estate affairs and her will dispositions. The first of these (Tab 47) was dated 5 May 1997 and signed by her " Barbara Bridges ". It was probably prepared for the purpose of showing it to Mr Coughtrey, and probably was shown to him, but it was not ever communicated to Mr Antill, who came to know of it only through discovery process. The statement goes through a history of Mrs Nisbet's acquisition and disposition of various properties, the house in Oswald Street Rushcutters Bay in (or about) 1953, which she sold in 1964, the house in Queen Street Woollahra which she bought in 1964 for £12,500, on which she made alterations for which she borrowed on mortgage from CAGA and from a client of Mr Helmrich. She says "None of these transactions had anything to do with the estate of the late GOD Chapman." She does not refer to the transactions shown in tax returns in which various sums were said to be mortgaged on the property in Queen Street Woollahra. She says that she sold the Chapman shares and the William Adams shares in the estate "with the full knowledge of my son -- that money was invested in other shares." In Mr Antill's evidence he denies knowledge or approval of these events; I believe what he says. She also gives an account of the purchase of the property in Nelson Bay from sources other than the Chapman Trust, and says "I eventually sold the Nelson Bay house for $60,000 which paid off the mortgage on 188 Queen St and an overdraft I had at the bank. Neither the purchase or the sale of this house has anything to do with the estate of the late GOD Chapman”. She also gave an account of the Cawarrie loan, which was slightly inaccurate in detail.

60 Her statement continued:

In the early 80s I wound up Bridges Associates & the Bank Manager suggested that the Estate of the late GOD Chapman should be finished also, & everything put into the one account. My Accountant also agreed, the thinking behind that was my son would inherit whatever I had in the Bank, and my house -- in those days I had a very good relationship with my son.

Unfortunately that relationship had deteriorated very much -- & I have been excluded from their family for well over ten years -- & as a result I do not feel inclined to leave the whole of my estate to him.

I have asked Henry Chin to ascertain what the capital of the GOD Chapman Estate would be worth today -- (& that was in 1994 --) I intend asking him to upgrade it to 1995.

61 Her papers also included another statement in her handwriting, but not signed by her, dated May 14^th 1997 (Tab 49). This too was probably shown to Mr Coughtrey but was not shown to Mr Antill. It says:

Re Estate of the Late GOD Chapman

Up to 1970 the assets were $19,484 - invested with income going to BN during her lifetime. Average income has been just under $1000 per annum. The assets were controlled by Mr Card of the Public Trustee. Sometime in the 70s John Hellmrich applied to the court after Mr Card died, for BN to take over the Estate - This was granted - Michael Antill is holding the papers from Hellmrich's office - I am not quite certain of the exact date.

At about the same time Boris Ganke took over Chapman's P/Ltd; BN sold the shares, before they became worthless.

That money was then invested in other shares.

In 1983 when the estate was finished the money from the estate $19,484 was invested in Banks - and in 1988 was invested in ALAT Cash Management Trust and amounted to $30,213.39. In 1991 it went to MLC Cash Management Trust. The income was reinvested & in 1992 $7,367 was invested in Potter Warburg - with income reinvested.

62 This statement is inaccurate in some details, and it is inconsequential in what it says about the history of investment. There was no application to the Court after Mr Card died, Mr Antill did not ever hold papers about any such application, the proceeds of sale of Chapmans shares mainly went to Mrs Nisbet, only a small part if any was invested in other shares and large sums were treated as advanced to herself; she does not mention this. She says the Estate was "finished in 1983;" in other documents she has given a date about 10 years earlier. She does not explain the source of the $30,213.39 or the later investments, or what happened to the withdrawal of $8,461.69 in 1995, and the references to MLC and a Building Society are inconsequential.

63 These documents were probably shown to Mr Coughtrey. In my conclusion they show that by May and June 1997 Mrs Nisbet was unwilling, unable or both to explain estate affairs, and in particular unwilling to acknowledge or explain advances to herself. They show that the Estate was “finished” when Bridges Associates was wound up and everything from those sources put into one account and that what justified dealing with Trust assets in this way was that Mr Antill was to inherit whatever Mrs Nisbet had in the Bank and her then house at Queen Street Woollahra. The burden of this explanation is that she took the Estate assets for herself and that the inheritance would make things good.

64 Mrs Nisbet made a statement dated 8 August 1997 (Tab 58) explaining the reasons for a will which she made on 24 June 1997. The statement deals with lack of contact and her relationship with Mr Antill and also says

6. I have adequately provided for my son's financial well-being during my lifetime.

65 Her will admitted to probate was a later will made on 21 April 2005 which gave substantial benefactions to Mr Richardson, in particular gave him the house in Adelaide Street Bondi Junction free of any money secured on it. This will gave Mr Antill a one third share of residue, and this was insubstantial in value.

66 The claims made by Mr Antill include a claim to the effect that Mrs Nisbet created a voluntary trust over the house at Queen Street Woollahra, evidenced by the terms of her letter of 9 May 1983. Alternatively it is alleged that she and her executors are estopped from denying that she held the Queen Street property on the trusts of the Chapman trust, and this letter and its terms are the principal basis of the estoppel alleged.

67 It should not be found on the evidence that Mrs Nisbet acquired the house at Queen Street Woollahra with money or other resources which were assets of the Chapman Trust. On the other hand it is altogether clear that a later time she treated moneys which were assets of the Chapman Trust as advances to herself on mortgage over that property; these advances were misappropriations of trust property, there was no registered mortgage, there is no indication that she ever repaid the mortgage debt and her various inconsequential and incomplete explanations of her dealings with trust assets do not include any assertion that she made such repayment. My interpretation of that letter is that it is an ambiguous admission that the house at Queen Street Woollahra was either wholly or to some extent an asset of the Chapman Trust; from which I conclude that it should be treated as wholly an asset of the trust unless some basis of apportionment can be shown.

68 The statement (in the letter of 9 May 1993) relating to proposed closing of the bank account held in the name of the estate is closely related to the statement that the estate was in 188 Queen Street and would pass to Mr Antill. They are parts of the same proposition; that 188 Queen Street was an asset of the trust which in some way was substituted for or had taken the place of the money in the bank account. If this were so there was a ground for Mrs Nisbet to be angry and disgusted at Mr Antill’s objections, but if it was not so his objections were justified, as was obvious. The statements that the estate was to pass to Mr Antill when Mrs Nisbet died, and was in 188 Queen Street, and in the meantime provided her with a home and a small income state convey the meaning that 188 Queen Street had become subject to the Chapman Trust, and that the bank account no longer was. The statement that the estate had increased considerably in value could only relate to 188 Queen Street, and could not relate to the bank account. The meaning of the letter of 9 May 1983 is not altered and the force of what it says is not diminished by statements which Mrs Nisbet made many years later which are to quite different effects and deny statements in the letter of 9 May 1983.

69 In the letter of 9 May 1983 Mrs Nisbet explained that she had opened a bank account in the name of her late father’s estate as a safeguard from any claim that the Nisbets might make against the money in the account on the basis of a relationship between that money and her $7000 from the Nisbet settlement. The underlying idea is to the effect that the Nisbets would have difficulty in tracing the $7,000 because it was part of $20,000 which went to Cawarrie and appeared in Cawarrie’s books in the name of the Estate of the late Mr Chapman. The bank account which she opened in the name of the estate and proposed to close received and contained interest on the loan to Cawarrie; it did not contain the $20,000 (unless perhaps Mrs Nisbet had recently deposited it there after repayment). The interest and the bank account containing it would no doubt be Mrs Nisbet’s even if it were assumed that the $20,000 loan in truth belonged to the Chapman Trust.

70 Overall the letter expresses quite clearly the fact that the Chapman Trust assets had become transmuted into the house at 188 Queen Street, and that that house represented the Trust assets. What was ambiguous is the extent to which 188 Queen Street represented the Trust assets; the letter is open to the interpretation that it did so wholly, but ambiguously it is consistent with the reading that it did so to some less extent. The letter does not state in an altogether clear way how this transmutation had occurred; the letter is in my opinion clearly an admission that it had occurred but it is also open to the reading, which Mr Antill’s counsel contended for, that by the letter itself Mrs Nisbet declared a trust of the house at 188 Queen Street on the trusts of the Chapman Trust.

71 With the events of early 1983 and the repayment of the Cawarrie loan account the last sign of anything which was even colourably administration by Mrs Nisbet on the Chapman Trust and its assets came to an end. There is no sign of any systematic recording of estate business, there were no tax returns until the turn of events in 1997 (and there had not been for ten or more years earlier than 1983) and there was no asset which generated Chapman Trust income, which would have belonged to Mrs Nisbet but would have been subject to income tax; she lived in the house as if she were unqualifiedly its owner.

72 The assets of the Chapman Trust may have been transmuted into the house by some earlier events; knowledge of what those events were could be held only by Mrs Nisbet and she did not say what they were, but she was in a position to admit their effect. They could well have had some relation to her treatment many years earlier of money belonging to the Chapman Trust which she had referred to as lent to herself on mortgage on the Queen Street house, an assertion last seen in the estate tax return to 30 June 1972, after which there is no available reference to it; and there is no contention by Mrs Nisbet in her various writings in evidence that she in some way repaid or discharged it; all her explanations for the source of the money lent to Cawarrie attribute the money to other sources.

73 My conclusion is that the letter of 9 May 1983 establishes that the house at Queen Street was an asset of the Chapman Trust, because Mrs Nisbet thereby admitted that it was; and alternatively because she thereby declared a trust of it. On the assumption that trust money or other assets had passed into it in some way and had become admixed with the previously existing interest of her own in the Queen Street house, the house should be treated as wholly a trust asset in the absence of any means of apportioning interests in it. On the alternate meaning the same result is reached more directly.

74 The facts of this case are not closely similar to those in Scott v Scott (1963) 109 CLR 649. In my respectful view the approach taken in that case gives some indications of the approach which I should take to identifying the interest of the Chapman Trust and of Mrs Nisbet in the Queen Street property. In Scott v Scott it was possible to identify the amount of trust moneys used in the purchase and to relate that arithmetically to moneys contributed by the trustee himself. That is not possible in the present case. The amount of the trust moneys and also the manner in which they came to be, in Mrs Nisbet’s expression “in” the house in Queen Street Woollahra cannot be known. Observations made by the High Court in Scott v Scott at 660 seem to show openness to allowing a trustee who has made a mixed investment some part of increase in value attributable to his own contribution, but this depends upon the trustee being able to show what his contribution was.

75 In my opinion an admission to the effect that assets of a trust were in, meaning represented by, a piece of real property does not fall within the requirements for writing in s 23C of the Conveyancing Act 1919. If the force of the letter of 9 May 1983 is that it is itself a declaration of trust, that trust is unenforceable unless requirements of s 23C(1)(b) of the Conveyancing Act are met; in the words of that paragraph:

A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will.

76 It is not necessary that the writing which manifests and proves the declaration of trust should itself create the trust. Further, the writing which manifests and proves the declaration of trust need not necessarily all be contained in one piece of paper. There have been many cases on s 4 of the Statute of Frauds, and on s 7 which is the predecessor of s 23C(1)(b), which have addressed proof by a series of letters, or otherwise by more than one document. The statement of Sheller JA in Tonitto v Barsal (1992) 28 NSWLR 564 (CA) is authoritative and I should follow it. That case related to Conveyancing Act s 54(A) which corresponds with s 4 of the Statute of Frauds, but there is in my opinion no reason why different approaches should be taken under s 23C or its predecessor. Sheller JA in the leading judgment stated the principle involved succinctly at 570: “The Memorandum or note which the section requires need not, of course, be contained in one piece of paper. It was not disputed that the Vendor’s solicitor was authorised to sign the letter. Accordingly, if there was a sufficient connection between the two documents, its signature satisfied the requirements of this section: Daniels v Trefusis [1914] 1 Ch 788 at 798-799; Woden Squash Courts Pty Ltd v Zero Builders Pty Ltd [1976] 2 NSWLR 212 at 220.” Sheller JA went on to address, in considerable detail, what is required for the later document sufficiently to refer to the earlier document or the earlier transaction. That problem does not present itself in this case, as the later document refers to the letter of 9 May 1983 unmistakably clearly. The letter of 16 May 1997 which Mrs Nisbet did sign with the name “Barbara” states that the letter of 9 May 1983 was her letter. In my opinion this is sufficient, notwithstanding that the letter of 16 May 1997 contained statements which are not consistent with the plain meaning and effect of the earlier letter, but are to an altogether different effect. It confirms that the first letter was Mrs Nisbet’s letter.

77 It was contended that Mr Antill’s evidence showed that he had not relied upon the statement in the letter of 9 May 1983. In support of this counsel referred to evidence which showed that the loan of $20,000 to Cawarrie was (not at first, but after some time) attributed to the Chapman Trust, that Mr Antill expressed confusion at her explanation for making that loan, and that he took up enquiries in 1997. Quite otherwise, to my mind the circumstance that it took him until 1997 to come to activity with enquiries illustrates the reality of his reliance. He asserted reliance; such evidence of states of mind by the person interested in establishing them has to be received carefully, but in this case it accords with the probabilities.

78 Mrs Nisbet’s letter of 9 May 1983 and its statement that the Chapman Estate was in the Queen Street house affected Mr Antill’s beliefs and conduct, as they were plainly intended to do. For a long period until 1997 he acted as if he accepted that trust affairs were as Mrs Nisbet had asserted them to be. During this period Mrs Nisbet sold the Queen Street property and applied the proceeds in ways which cannot be fully seen, except that she spent about half the proceeds on purchase of two other properties. Mr Antill stated in his affidavit of 12 November 2009 paras 29 and 30 steps which he would have taken but did not take because he accepted what Mrs Nisbet told him. Shortly he did not intervene in the affairs of the Chapman Trust; the instances he refers to are stopping her from closing the bank account, requiring a further and formal account of Chapman Trust affairs and pursuing his interest in buying from Mrs Nisbet her life interest in the estate. I accept what he says because he was a methodical man with business experience and had a strong motivation to pursue its own interest in Chapman Trust affairs, in which he would as a matter of probability, indeed fair certainty, have acted if he had not been assured to the effect that the Queen Street house was a Trust asset and would come to him when Mrs Nisbet died. As well as foregoing the opportunities his evidence mentioned, it is plain that he incurred detriment in reliance on that letter in less well-definable respects; time passed without pursuing opportunities for calling on Mrs Nisbet to comply with her duties as trustee, or even conceivably bringing litigation, and opportunities to establish what her dealings had truly been, for example by compelling production of papers and having an accountant attempt to analyse them, were diminished by the passage of time. By and before 1997, when Mrs Nisbet began to assert to a different effect, she was in my opinion estopped from departing from the position as asserted in the letter of 9 May 1983; and this continues to be the position at her death and estops persons claiming under her estate. The estoppel relates only to departure from the state of facts she asserted; enforcement of a promise in reliance on estoppel is not under consideration.

79 It is admitted in the Defence that Mr Richardson invested the proceeds of sale of the Edgecliff Road property in term deposits with National Australia Bank. Mr Antill claimed that he is entitled to trace the funds used to purchase the Edgecliff Road property into the term deposits held by Mr Richardson. I do not uphold this claim because title to the Edgecliff Road property was transferred to Mr Richardson, he became the registered proprietor with the benefit under s 42 of the Real Property Act 1900 of his not being bound by unregistered interests, and his protection extends to equitable interests of which he had notice. Mr Richardson would be bound if at all only by a personal equity of the kind considered in Bahr v Nicolay [No 2] (1988) 164 CLR 604, and although it is quite possible, even likely that he knew that the Queen Street property and its proceeds were affected by a trust there is no indication in the evidence of any circumstances in which a personal equity existed against Mr Richardson otherwise than his having taken without consideration and with notice of the previous trust.

80 My conclusion is that at her death Mrs Nisbet held the Adelaide Street property upon the trusts of the Chapman Trust, with the result that equitable ownership of that property passed to Mr Antill on her death. He is entitled to recover the Adelaide Street property as its equitable owner. His interest is no longer contingent and the enforcement of his equitable ownership does not require the appointment of new trustees, or the interposition of trustees at all. He has also shown that he is entitled to an order for taking accounts and an inquiry to ascertain the liability of Mrs Nisbet for misappropriation of assets of the trust and other breaches of trust.

81 When assessing the liability of a trustee after trust property has been misapplied, for example in an unauthorised investment or unauthorised expenditure, it is the usual approach not to pursue what happened to the unauthorised expenditure but to charge the trustee for the amount spent on it from then on on the footing that a proper investment had been made. Whether or not the unauthorised investment or expenditure turned out well or badly is not the beneficiary’s concern; the trustee is accountable as if a proper investment had been made, and if this involves pursuing a hypothesis about what investment could and should have been made, it has to be pursued.

82 If accounts were to be taken, they would be taken on the footing of wilful default. It should be accepted that Mrs Nisbet, still less her executor by representation, was not in a position to state in detail what her doings with assets of the trust were, over many years. In any event what she is accountable for is not the dealings which she (not at all times) referred to as investments of the trust or of trust moneys, in particular not the Cawarrie loan or the proceeds of its repayment, and not the $39,131 which she invested in AIDC in 1997 and later dealt with in other ways, including misappropriating part of that. In my judgment the method of taking accounts which is available and which would most closely approach substantial justice turns on treating the transactions referred to as loans in the estate income-tax returns as misappropriations; they were not exercises of the power of investment, or investments at all, and in particular not exercises of the power of investment in good faith and for the purpose for which it was conferred with a view to the interest of remaindermen as well as herself. A proper exercise of the power of investment would have produced some investment which protected remaindermen against continuing decline in the value of money through inflation, over what, by and before 1974, was likely to be a very long future, as it proved to be. She should be treated as accountable for the misappropriated moneys on the basis of what they could be expected to have produced if they had been invested in share market investments, and the investments had been managed with reasonable prudence throughout her lifetime, while providing her with the income from the shares. The use of a share index appears to employ a very broad brush, but reasoning of this kind has been employed: See Re Mulligan [1998] 1 NZLR 481. While the calculation of the value of share investments of that kind at the date of her death is a matter for inquiry, there are probably indices which show movements overall in the value of such share investments from the times of the misappropriations until the date of her death. She misappropriated £2,750 by 30 June 1965, another $9,000 by 30 June 1967 and in some way the misappropriations reached $15,418 by 30 June 1972. There remained a small number of shares, last seen in the estate tax return to 30 June 1972. As this investment in shares disappeared in some way which Mrs Nisbet has not explained, it should be taken that she realised it for her own benefit at about 30 June 1972, and the proceeds of such realisation, when calculated by share market information, should be projected as if they had been invested in a similar investment until the date of her death.

83 Calculation of her liability for misappropriations in this way does not however appear to me to be necessary, because the only substantial asset in her estate is the house in Adelaide Street Bondi Junction, which my earlier reasoning has shown is owned in equity by Mr Antill. There seems to be no purpose in addressing the more detailed inquiry, or in assessing how the proceeds these two approaches should be reconciled. Taking the benefit of the application by Mrs Nisbet of moneys of the trust to the Queen Street house in some way seems to involve, not ratification of her doing so, but some association or identification with her having done so which would prevent Mr Antill from taking the benefit to other remedies for misapplication of the trust moneys if the Queen Street house and the Adelaide Street house came to be treated as his. The matters I have addressed in this discussion are of secondary importance; the primary basis for my decision is that Mrs Nisbet declared, or admitted the existence of a trust of the Queen Street house for the trusts of the Chapman Trust, and the Adelaide Street house was purchased entirely with funds traceable to the sale of the Queen Street house.

84 The Defence relied on a time bar in the Limitation Act 1989, but this was not pressed before me and had no application because Mr Antill’s interest or expectation became vested in interest only on Mrs Chapman’s death. The principal defence relied on was to the effect that Mr Antill is barred from remedies by laches acquiescence and delay. The primary basis of this defence was that Mr Antill actually knew for many years how Mrs Nisbet was handling estate affairs: there was a forceful and sustained attempt to establish this by cross-examination, and it did not succeed.

85 Mr Antill’s interest was contingent until Mrs Nisbet died, and it was only then that he had standing to claim an equitable interest in the Adelaide Street house, or any remedy other than one directed to compelling compliance by Mrs Nisbet with her trusteeship duties, or her removal and appointment of other trustees. He was in a position to bring such proceedings only in a representative capacity, representing the whole class of persons potentially interested in remainder. On the simple basis of comparison of ages it was more likely than not that eventually he would be the remainderman who survived Mrs Nisbet; but this was far from being a certainty, and the probability declined with the passage of time. At the age of 72 he proved to be the survivor.

86 There is no basis for thinking that Mrs Nisbet's conduct and breaches of trust were products of inactivity by Mr Antill, or that activity on his part would have produced a better result, unless perhaps he had had her removed as a trustee by litigation. It is not open to Mrs Nisbet’s executors to assert that a person should not have a remedy because he failed to sue her; particularly when it is her only child of whom that observation is made. Equitable interests are not available only to the vigilant, and their existence is not conditioned on enforcement. On the occasions when Mr Antill did attempt to obtain some information or explanation or activity from Mrs Nisbet she responded with anger, expressions which did not answer him and explanations which were manifestly inadequate and, considered together over time, were in no way complete and in some respects contradicted each other or were inconsistent. The only results that his activity produced were family rows. I do not see any justice in the criticism of him that he did not take matters further, persist with enquiries or embark on litigation in the interest of a class. Mrs Nisbet sometimes asserted that significant events had happened with the knowledge of and the concurrence of Mr Antill; his evidence showed, in relation to each of these assertions, that they were not correct, and I find his evidence convincing.

87 Mr Antill was cross-examined at considerable length and with some vigour on his conduct and also on suggested omissions in his conduct with respect to his dealings with Mrs Nisbet and trust affairs. Many aspects of the events were put to him apparently in support of suggestions that he could or should have done more or perhaps in some cases less. In this respect the defendant’s case was not well accommodated to the lack of vested rights, power and real opportunity of Mr Antill to control events until the interest in remainder became vested in him. It was not well accommodated to the difficulties he encountered when he did seek explanations, information or indeed any responses from Mrs Nisbet; things did not go far before she expressed herself angrily, and the information which she did give usually indicated its limited reliability, so as to be close to being in substance a refusal to respond at all.

88 The absence of any appropriate records of dealings with trust assets found on searches after Mrs Nisbet's death should not be attributed to any inactivity of Mr Antill. To a high degree of probability, systematic records let alone properly prepared accounts of the trust did not exist from 30 June 1972 onwards, if they existed before then. Mrs Nisbet engaged in deliberate confusion and concealment, as appears from her own statements about her transactions. The statements which she made in 1997, and the letter written by Mr Coughtrey on her behalf demonstrate that she was not then in a position to give a clear account of trust dealings; if she had been in a position to do so it is highly likely that, with the assistance of a chartered accountant, she would have done so for her own protection. The basis on which it began to be asserted in 1997 that the assets of the trust amounted to $39,131 was never explained; if reasons supporting this figure were available it is probable that they would then have been given in response to what Mr Antill was asking for. It is highly probable and I find that Mrs Nisbet did not keep accounts or useful records of trust dealings, over many years, from 1972 onwards and probably before, and this is in no way attributable to inactivity of Mr Antill or any supposed failure of his. It appears that Mrs Nisbet was satisfied with her own performance, at least to the extent that she said, "Mr Coughtrey of Haines Norton has all the estate details." At her death no such details could be produced, and it is altogether improbable that Mr Coughtrey had more than incomplete scraps of information about estate affairs. Mrs Nisbet’s statements of 1997 show an awareness of the strong possibility of claims relating to her estate, and of Mr Antill is being dissatisfied; she adopted a posture of rectitude, showing her knowledge of the need to do so.

89 If any criticism is to be made of Mr Antill's conduct on the basis that he was less active than he could have been (which I do not accept) an important aspect would be that he sought information, was not given useful or credible information, and was not in a position to judge the scale of what was involved, or to evaluate whether or not going further, for example to litigation, would be a useful step, or would be economically justified. He was simply left without real knowledge of what his contingent rights were worth; he was not told whether the game was worth the candle. Much of the information he was given was incorrect, and matters were reported to him several decades out of their true context. In so far as he was given any information, it was either incomplete or deliberately misleading, and Mrs Nisbet did not regard herself as obliged to abide by what she indicated to him.

90 Mr Antill’s intemperate letter of 21 June 1997 does communicate that Mr Antill accepted and believed what he had then been told. This cannot have any real force adverse to him when appraising the defence of laches; what he had been told had been intended to produce inactivity on his part, it was far less than he had asked for, and it was so inadequate an account of the events of Mrs Nisbet’s trusteeship, so incomplete that it could not be said that it was true. I should not count against him that he was brought to a standstill when he called for information and was given an inadequate response.

91 Defendant’s counsel contended that the letter of 16 May 1997 had the significance that upon reading it Mr Antill knew that he ought to take some action in respect of the estate. Cross-examination dealt extensively with what Mr Antill had done to obtain information and promote activity by Mrs Nisbet; apparently it was an object of the cross-examination to show that he had not done enough and that his rights were injured if he had not been in some sense appropriately active. This led to the following exchange (Transcript 56):

Q: You should have done something about your dissatisfaction about the state of affairs of the Trust back in 1997, shouldn’t you?

A: Yes I should have but I accepted what had happened, she had lied to me.

92 This answer shows that his hindsight is clear; his answer has little to do with his entitlement to remedy.

93 Defendant’s counsel presented close analysis of implications said to arise from Mr Antill’s intemperately expressed response to what he was told in 1997 and subsequent quiescence. Acceptance was just the result intended to be produced, and I do not find it possible to treat his acting as Mrs Nisbet and her chartered accountant intended as adverse to his entitlement to enforce his rights. What he was told was a completely inadequate account, poorly based on any supporting material, with the object of holding off his activity indefinitely. It succeeded. Mr Antill is not to blame for this.

94 In my judgment Mr Antill’s entitlements are not barred by laches, acquiescence or delay.

95 Mr Antill is entitled at his election to the remedies accounts and inquiries in Claims 5, 6, 7, 8, 9 and 10 of the Statement of Claim. I have not made those orders because I do not see their utility in the circumstances. I will reserve further consideration of them, as Mr Antill may decide to pursue them.

1. Declare that the defendant holds the property known as 46 Adelaide Street, Bondi Junction, Lot 1 Deposited Plan 203349 being the land in Certificate of Title Folio Identifier 1/203349 on trust for the plaintiff.

2. Order that the defendant transfer the land in Certificate of Title Folio Identifier 1/203349 to the plaintiff.

3. Reserve further consideration of claims 5, 6, 7, 8, 9 and 10 in the Statement of Claim.

4. Reserve further consideration of costs.

**********

07/06/2010 - Change 1957 to 1997 - Paragraph(s) 53

01/02/2011 - Corrections to the citation in paragraph 9 - Paragraph(s) 9

Actions

Download as PDF Download as Word Document

Citations

Antill v Mostyn [2010] NSWSC 587

Most Recent Citation

Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168

Cases Citing This Decision

1

Alonso v SRS Investments (WA) Pty Ltd [2012] WASC 168

Cases Cited

5

Statutory Material Cited

3

Webb v Bloch [1928] HCA 50

Yates v Halliday [2006] NSWSC 1346

CITATION:	Antill v Mostyn [2010] NSWSC 587 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13 and 14 May 2010
JUDGMENT DATE :	4 June 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Bryson AJ
DECISION:	1. Declare that the defendant holds the property known as 46 Adelaide Street, Bondi Junction, Lot 1 Deposited Plan 203349 being the land in Certificate of Title Folio Identifier 1/203349 on trust for the plaintiff. 2. Order that the defendant transfer the land in Certificate of Title Folio Identifier 1/203349 to the plaintiff. 3. Reserve further consideration of claims 5, 6, 7, 8, 9 and 10 in the Statement of Claim. 4. Reserve further consideration of costs
CATCHWORDS:	TRUSTS AND TRUSTEES - liability of trustees - Chapman (plaintiff's grandfather) left half his estate to Chapman Trust to provide his daughter Mrs Nisbet with income for life remainder to her descendents - Chapman died in 1937, Mrs Nisbet became one of the trustees in 1953, sole trustee after deaths of others in 1960 and died in 2008 - Mr Antill her only child succeeded in remainder - challenge to Mrs Nisbet's investments and conduct of trust affairs - loans to herself were misappropriations - Mrs Nisbet acknowledged in 1983 that the assets were in her house - consideration of sufficiency of writing under s 23C of Conveyancing Act - her house was found to be subject to the trust and its proceeds were traced into second house which she bought in 1995 after selling earlier house - HELD that Mr Antill as remainderman was equitable owner of second house - Extensive consideration of facts
LEGISLATION CITED:	Conveyancing Act 1919 Statute of Frauds Trustee Act 1995
CATEGORY:	Principal judgment
CASES CITED:	Daniels v Trefusis [1914] 1 Ch 788 In the application of Handosa, Estate of Frank Robert Handosa (unreported) 21 April 1994 In the will of Sherriff [1971] 2 NSWLR 438 Re Mulligan [1998] 1 NZLR 481 Space Investments Limited v Canadian Imperial Bank of Commerce Trust Co (Bahamas) Limited [1986] 1 WLR 1072 Tonitto v Barsal (1992) 28 NSWLR 564 (CA) Wickstead v Brown (1992) 30 NSWLR 1 Woden Squash Courts Pty Ltd v Zero Builders Pty Ltd [1976] 2 NSWLR 212 Yates v Halliday [2006] NSWSC 1346
TEXTS CITED:	Ford and Lee Principles of the Law of Trusts Lewin’s Practical Treatise on the Law of Trusts 4th edition 1939
PARTIES:	Michael Thomas Antill (Plaintiff) John Joseph Mostyn (Defendant)
FILE NUMBER(S):	SC 290565 of 2009
COUNSEL:	J Needham SC with her R Antill (Plaintiff) T L Wong (Defendant)
SOLICITORS:	EH Tebbutt & Sons (Plaintiff) Thomson Playford Cutler (Defendant)