Antill v Mostyn - [2010] NSWSC 587

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antill v Mostyn

Details

AGLC: Antill v Mostyn [2010] NSWSC 587
Case: [2010] NSWSC 587
Decision Date: 4 June 2010

CaseChat Overview and Summary

The case of Antill v Mostyn involved the plaintiff, Mr Antill, challenging the actions of Mrs Nisbet, the daughter of his deceased grandfather, Chapman, who had established a trust with half of his estate. Mr Antill contended that Mrs Nisbet, who served as a trustee, misappropriated trust assets and acted improperly in managing the trust. Chapman had left the trust to provide Mrs Nisbet with an income for life, with the remainder to her descendants. After Chapman's death in 1937, Mrs Nisbet became a trustee in 1953, and later the sole trustee following the deaths of the other trustees in 1960. Mrs Nisbet passed away in 2008, and Mr Antill, her only child, succeeded to the remainder interest.

The legal issues before the court included whether Mrs Nisbet's loans to herself from the trust were valid, the sufficiency of writing under s 23C of the Conveyancing Act, and whether the trust assets were properly traced. The court had to determine if the assets were indeed misappropriated and if the proceeds from the sale of the trust assets could be traced to a new property. The court found that Mrs Nisbet had acknowledged in 1983 that the trust assets were in her house, and the house itself was subject to the trust. The court also determined that the proceeds from the sale of the house were used to purchase a second house in 1995.

The court held that Mr Antill, as the remainderman, was the equitable owner of the second house. The decision was based on the tracing of the trust assets into the second property, despite the various loans and transactions. The court concluded that the trust assets were misapplied and that the equitable ownership of the second house belonged to Mr Antill. The court's judgment was detailed, considering the extensive facts and the legal framework surrounding the trust and its administration.

Orders