B & M Property Enterprises Pty Ltd (in liq) v Pettingill

B & M PROPERTY ENTERPRISES PTY LTD
(IN LIQUIDATION) v PETTINGILL
[2001] SASC 75

Civil

1................ PERRY J.......................... This is an action by the liquidator of a company to secure vacant possession of a suburban house property occupied by the defendant Scott Aaron Pettingill, of which the company is the registered proprietor in fee simple (“the Nelson Road property”).

BACKGROUND

In 1992, Mr Malcolm Pettingill, the father of Scott Pettingill, wished to purchase some properties for investment. He approached a chartered accountant, Mr Bruce Adam, who at that time had been acting for the Pettingill family for some 12 to 18 months, to assist in obtaining a company with a view to it becoming the trading entity through which the investment properties might be acquired.
Mr Adam had on hand, as it were, a company, Dr J.S. Wallace Pty Ltd, which another client no longer wished to retain. On the instructions of Mr Malcolm Pettingill, he arranged for a change of name of the company to B & M Property Enterprises Pty Ltd (“B & M”). A certificate of registration on change of name was issued on 1 October 1992.
There were two shareholders; Mr Adam and Mr Malcolm Pettingill’s daughter, Mrs Marie Ann McLaughlin. Mr Adam was appointed secretary. Mrs McLaughlin and the defendant, Scott Pettingill, were appointed directors effective from 28 August 1992, which was before the change of name.
The defendant alleges that a meeting of directors was held at Mr Adam’s office on 6 September 1992, and that those present were, apart from himself, Mr Adam, Mr Malcolm Pettingill and the defendant. Mrs McLaughlin, who lives in Queensland, purported to participate in the meeting by telephone.
The defendant tendered in evidence what purport to be minutes of the meeting, which read as follows:
“It was resolved that the company contract to purchase a property at 111 Nelson Road, Valley View in South Australia, the company acting as Trustee for Scott Aaron Pettingill.”
No contract evidencing the purchase was tendered at the trial, but a transfer dated 6 October 1992 was executed by the then registered proprietors. It records the consideration for the purchase as $100,000.
The transfer was accepted by B & M under its common seal. This was not regularly affixed, as Mr Malcolm Pettingill signed as one of the attesting directors when it is clear that he did not hold office as such until 1997. The other attesting director was Scott Pettingill. The same irregularity appears on the face of a registered Memorandum of Mortgage, apparently executed on the same day, which records a loan by several mortgagees of $126,000. That is a surprising figure, given the consideration expressed in the transfer.
There is no evidence to displace the assumption which I consider that I am entitled to make, namely, that the balance of the mortgage advance over and above the $100,000 purchase price of the Nelson Road property, was applied by B & M for its own purposes.
The defendant tendered in evidence what he asserted to be an Acknowledgment of Trust executed under the seal of B & M on the same day, that is, 6 October 1992. This is in the following terms:
“ACKNOWLEDGMENT OF TRUST made the 6th day of October 1992 by B & M PROPERTY ENTERPRISES PTY LTD (hereincalled ‘The Trustee’) WHEREBY IT IS ACKNOWLEDGED that the Trustee is holding the property known as 111 Nelson Street Valley View South Australia Volume 5096 Folio 129 UPON TRUST for Scott Aron (sic) Pettingill of 111 Nelson Street Valley View South Australia (hereinafter called ‘the Beneficiary’) AND THE TRUSTEE HEREBY DECLARES that all benefits from the property shall be for the benefit of the Beneficiary and that the Trustee AGREES that it shall forthwith request transfer pay or deal with the said property of other benefits and exercise all rights in respect thereof in such manner as the Beneficiary shall from time to time direct.”
I assume that the acknowledgment should be read as though the word “on” appears before the word “request”.
Following settlement of the sale, for a few months Mr Malcolm Pettingill occupied the house on the property. When he left, a tenant was admitted into possession. Mr Adam, who gave evidence for the defendant, was not sure of the period of the tenant’s occupation, but he thought that the tenant might have been in occupation for “a year or so”.
At about the same time the company was also renting out another property which it owned at 71 Elizabeth Street, Banksia Park.
Mr Adam described the main source of income of the company as the rent from those two properties.
When the tenant left the Nelson Road property, the defendant and his fiancee, Kieran Louise Woods, moved into occupation of it. The defendant and Ms Woods parted about two years ago. Ms Woods then returned to a property which she owned jointly with the defendant at Para Hills. Meanwhile, the defendant has continued in occupation of the Nelson Road property.
On 14 June 1996, Mrs McLaughlin and the defendant resigned as directors of the company. Raymond Houltby became a director on 14 June 1997. Mr Malcolm Pettingill was appointed a director on 8 May 1997.
In 1996 the Nelson Road property was re-mortgaged. I deal with the circumstances surrounding that transaction (“the 1996 mortgage”) later in this judgment.
On 21 August 1998, a summons was issued in this Court by a number of creditors of B & M seeking an order that it be wound up. A winding up order was made on 9 March 1999 pursuant to which Frederick Charles Perkins was appointed liquidator of the company.
The present proceedings were instituted by summons issued on 24 September 1999. In the summons, B & M claims against the defendant an order for possession pursuant to Part 17 of the Real Property Act 1886.
In his defence, the defendant acknowledges that he is in occupation of the land, but asserts a right to remain there by reason of the alleged Acknowledgment of Trust said to have been executed on 6 October 1992. In a counterclaim, the defendant seeks an order that pursuant to the Acknowledgment of Trust, the company transfer the land to him.
In its defence to the counterclaim, the company denies that the Acknowledgment of Trust was an effective act of the company. More particularly, in the defence to counterclaim, with respect to the Acknowledgment of Trust, the company pleads:
“1...........
1.1    The document is a copy. No original has been produced by the defendant for authentication. The liquidator of the plaintiff has searched and called for the original instrument but none has been located or produced.
1.2    Neither the document nor the original of which it is a copy forms part of the records of the plaintiff held by or provided to its liquidator.
1.3    There is no record in the plaintiff’s Minute Book of any meeting of its directors being held on 6th October 1992. This was a Sunday and not a business day.
1.4    There was no validly constituted meeting of the plaintiff’s directors held to authorise the document or the trust that it purports to create.
2...... The plaintiff denies that the defendant has any beneficial interest in the land which is the property of the plaintiff.”
At the trial, the central issues were whether or not the purported minutes of the resolution of the directors of 6 September 1992, and the Acknowledgment of Trust said to have been executed on 6 October 1992, are authentic documents; and even if the documents are authentic in the sense that they accurately record a transaction effected by B & M at that time, whether the transaction is nonetheless void or voidable; and if the latter, whether it should now be set aside by the Court at the instigation of the liquidator.

THE EVIDENCE

At the hearing the defendant, Scott Pettingill, appeared on his own behalf. I refused an application by his father, Malcolm Pettingill, to represent him, but I ruled that he could act as a McKenzie friend, which he proceeded to do.
Scott Pettingill gave evidence, and called the accountant, Mr Adam.
No witnesses were called by the plaintiff to prove its case. It relied on the documents which it tendered, which included a computer register search of the title. This confirmed that B & M still appears as the registered proprietor of the Nelson Road property, which remains mortgaged to a number of individual joint mortgagees. They are, however, a new group of mortgagees, being the mortgagees named in the 1996 mortgage.
The liquidator also tendered a number of documents from the records of the company which he obtained following his appointment. It is clear that those records were poorly maintained and incomplete. There was no proper minute book kept, and the records which Mr Adam, as company secretary, kept in a book described as the “book of statutory records” of the plaintiff are, to say the least, fragmentary.
As is asserted in the defence to counterclaim, the liquidator was unable to find in whatever records of the company were given to him any original of either of the two critical documents, that is, the minutes of the meeting said to have been held on 6 September 1992 and the alleged Acknowledgment of Trust executed a month later.
Mr Scott Pettingill was a most unimpressive witness. He is aged 29 years. He left school at the level of year 10. He qualified as a pastry cook but is at present unemployed.
I gained the clear impression that he has little understanding of business matters. He certainly had no concept at all of his duties as a director of B & M. He said that he really did not know what was meant by the memorandum of association and articles of association of the company.
He ceased to be a director in 1996. He was unable to answer any questions as to the state of the company’s accounts during the period during which he was a director. He could not recall what bank it was at which the company maintained any account. He was unable to explain a reference in the balance sheet as at 30 June 1996 to unsecured loans of $97,907. He said that he left it to the accountant Mr Adam to “do all the paper work to do with the company”.
During the course of his cross-examination Mr Pettingill was questioned as to a statement in an application form submitted in support of the application for a loan over the Nelson Road property, that is, just before the 1996 mortgage. The form, which is headed “Mortgage Loan Application”, apparently was prepared by Geoff Terry Finance Pty Ltd. It contains a statement:
“The applicant company [B & M] holds two residential properties in trust for Scott Pettingill. The company does not trade in its own right and hence no taxation figures are available.”
Part of the cross-examination of Scott Pettingill was:
“Q. ... Why does it [the form] say the company holds two residential properties in trust.
A.Two? It was probably a - why does it say that?
Q...... Yes.
A.At one stage or another I might have had one other house in trust. That was all.
Q...... What is the other house that was being held in trust for you.
A.I wouldn’t remember which house that was.
Q...... You don’t remember the other house the company was holding in trust at that time in 1996.
A.Not now, no. Too long ago for me to remember that.
Q...... Does the company, as far as you know, still hold a property in trust for you. Over and above the other one at Nelson Road.
A.No.
Q...... Did it ever hold a second property in trust for you.
A.Yes
Q...... But you don’t remember which property.
A.I’m a bit rusty on that, that’s all, at the moment. It would probably be the Banksia Park property, if anything.
Q...... Can you be more definite. You said ‘probably’. Do you think it is the Banksia Park property. I’m not being tricky. I want to know what you remember.
A.It might have been my other house.
Q...... Your other house.
A.Yes.
Q...... The Para Hills house.
A.Yes.
Q...... That you own with Kiren. The one in joint names.
A.No - no, because that wasn’t the company - it was in personal names, so it wasn’t held in trust.”
When cross-examined later as to the suggestion that the Banksia Park property was held in trust for him, his evidence was:
“Q.... What’s the trust in your favour about for Banksia Park; can you tell us that. What are you entitled to.
A.I wouldn’t be able to tell you that.”
He said later that B & M was paying the rates and taxes for Banksia Park and that it was rented out and that B & M was receiving the rents. Furthermore, B & M made the mortgage payments due with respect to Banksia Park.
By declaration of trust in writing under seal dated 21 December 1994, Silvercity Enterprises Pty Ltd declared that it “holds and stands possessed” upon trust for B & M certain parcels of land, a registered mining lease and a mine described as a “private sand and gravel mine No 203”. Despite the fact that at that time Mr Scott Pettingill was a director of B & M, in the course of cross-examination he admitted that he had no knowledge at all of that transaction.
When asked separately as to his awareness of dealings by B & M with respect to a mine which it owned at Kanmantoo, he said that he had never been involved as a director of the company in any financial dealings regarding the mine, and that any dealings concerning it would have been in consequence of decisions made by his father. He was not aware that there was a mortgage over the Kanmantoo mine in favour of Nexus Mortgage Securities. He said, “I wouldn’t even know what sort of mine it is”.
Mr Scott Pettingill gave his evidence in a rehearsed fashion. There were several occasions while Mr Pettingill was in the witness box when counsel for the plaintiff pointed out that he was looking directly at his father, who was at the bar table fulfilling his role as a McKenzie friend, and his father was seen to nod or shake his head. My own observations confirmed that this occurred.
It was clearly his father, Malcolm Pettingill, who made all relevant decisions to do with the company, and for that matter, the family’s financial affairs. According to Scott Pettingill, it was his father or Mr Adam who called meetings of the directors. Scott Pettingill admitted that it was his father who had “spotted” the Nelson Road property. Scott Pettingill was not involved in any negotiations to do with its acquisition, although his own Para Hills property, which he owned jointly with his then fianceé Kieran, was just around the corner.
He thought that the purchase price was just over $100,000, but said, “I wouldn’t know how much over”.
He said that at the meeting said to have been held on 6 September 1992, it was his father who “advised” him how he should vote. He said further that he did not know that pursuant to the articles of the company, given that he had an interest in the purchase of the Nelson Road property, he was not entitled to vote.
I believe that Mr Scott Pettingill was at the time of the transactions in question completely in the hands of his father so far as business affairs were concerned, and indeed, it appears likely that relevantly, that is still the case.
Having regard to the view which I formed as to his credit, I reject Scott Pettingill’s evidence on all material issues unless it is intrinsically likely or supported by other evidence.

THE ALLEGED DECLARATION OF TRUST

Mr Scott Pettingill says that he was at the meeting of directors to which I have referred which was alleged to have occurred on 6 September 1992.
I have serious doubts as to the authenticity of the minutes of the meeting, and whether in fact a meeting occurred on that date. I have similar doubts as to the authenticity of the alleged declaration of trust and whether it was executed on 6 October 1992.
As for the minutes of the meeting, the original has never been produced. Unsatisfactory explanations were given by Mr Adam as to its whereabouts.
The minute refers to the company as “B & M Property Enterprises Pty Ltd”, but as at 6 September 1992 the company was still Dr J.S. Wallace Pty Ltd, although a form had been lodged with the Australian Securities and Investments Commission to change the name to “B & M Enterprises Pty Ltd”. It was only later, after Mr Adam was notified that that name was not available, that he secured the registration of the name “B & M Property Enterprises Pty Ltd” (emphasis added).
Against that background, Mr Adam was obliged to concede in evidence that the copy minute produced could not have been engrossed on or about 6 September 1992, although earlier he had given evidence that there was no reason to suppose that the minutes of the meeting of 6 September 1992 and the acknowledgment of trust dated 6 October 1992 were executed other than on the days on which they were dated.
As for the acknowledgment of trust, Scott Pettingill’s evidence was that it was signed on the same day as the directors’ meeting held on 6 September 1992. Either he is mistaken or not telling the truth.
The original has never been produced. The copy eventually produced to the Court, which was unstamped,[1] did not form part of the statutory records folder of the company.
[1] In accordance with my obligation to protect the revenue, and having regard to s 22 of the Stamp Duties Act I insisted that the document be stamped before I would receive it in evidence. It was submitted for late stamping, but apparently no duty or penalty was payable. It was, however, adjudged “duty stamped”.
These circumstances, together with my view of the credit of Scott Pettingill, have brought me close to finding that the minutes and the declaration of trust are not genuine documents, and that the underlying transaction of which they speak was spurious.
However, a conclusion tantamount to a finding of fraud would necessarily have to be based on very clear and weighty evidence, sufficient to support a finding close to a proof beyond reasonable doubt.[2] At the end of the day, I have reached the view that by a small margin the evidence does not quite enable me to reach that conclusion.
[2] Briginshaw v Briginshaw (1938) 60 CLR 336.
But that is not the end of the matter. As will be seen, for other reasons, the purported trust fails.
On Scott Pettingill’s evidence, the idea that the house property be held in trust for him by the company originated with his father and the accountant Mr Adam. According to him, the underlying reason was, “It was going to protect me in case I split with my ex or anything so she couldn’t touch it, so we had a house each”, the other house being the house which he owned jointly with her at Para Hills.
That is inconsistent with other evidence that he gave.
He said that originally, the idea was that it would be held in trust for both of them:
“... it was my house that was being held in trust for myself and my fianceé at the time ...”
He said, however, that he and his fianceé had an argument in their car while driving to Mr Adam’s office to attend the alleged meeting held on 6 September 1992. The upshot of the argument was that she dropped him off, and did not attend the meeting. As it was put by Mr Scott Pettingill:
“I can remember we had an appointment and just as we got there had a fight and I went in by myself and she drove off and left me there”.
His evidence was that, following the argument, it was then decided that the Nelson Road property would be held in trust for him alone, to the exclusion of Kieran.
Elsewhere, Mr Scott Pettingill said during the course of his evidence:
“Q.... Prior to the meeting on 6 September, did you have any discussions with Mr Adam on his own about the idea of having a trust in your favour for this house, just him on his own.
A.Only to protect myself.
Q...... What do you mean by that.
A.Just what I said.
Q...... Protect you from whom.
A.Well, it was to protect myself in case I split up with my fianceé at the time.
Q...... You thought that she might get her hands on the house; is that what you mean.
A.Yes, that’s how I put it. That’s why I was into a trust.
Q...... You spoke with Mr Adam about that, did you.
A.If I had it in a trust that she couldn’t touch it, yes, that’s why.
Q...... Was that his recommendation.
A.To put it in a trust, yes.
Q...... That’s why you voted in favour of this trust on 6 September, was it.
A.That’s right.” (emphasis added)

If, as suggested in that passage of evidence given by Mr Scott Pettingill, prior to the meeting of 6 September 1992 he had a discussion with Mr Adam in which the latter recommended that the house be held in trust for Scott Pettingill alone to “protect” him in case he split up with his then fianceé, this is not consistent with the suggestion made in the earlier passage of Mr Scott Pettingill’s evidence that until the argument occurred in the car on the way to the meeting of 6 September 1992, the idea was that the house would be held in trust for himself and his fianceé.
At all events, when Mr Adam gave evidence, he denied that he was even aware of the idea, let alone that he advised in favour of holding the property in trust in order to protect Scott in the event that he should part from Kieran.
Part of Mr Adam’s evidence is:
“Q.... It was never discussed, for example, that the whole idea of having a trust was because Scott had had an argument with Kiren (sic), was it.
A.Not that I recall, and certainly not at that stage. [At about September 1992 the time of the alleged directors’ meeting].
......... ...........

Q...... You were asked before whether or not one of the ideas to put it in as a trust, or reasons, was because there had been an argument with Kiren (sic) and you said ‘No, that wasn’t’. Was one of the purposes in order to avoid a situation that might arise if Kiren (sic) and Scott were to part at any time.
A.I don’t remember that being discussed in any way, but then I also don’t remember there being any conflict at that time between Scott and Kiren (sic), that I was aware of, anyway.
Q...... But you weren’t given to understand that the idea behind it might have been to avoid any problem that might arise if they agreed to separate.
A.No, that didn’t come into my -
Q...... To keep it out of their hands, in other words, if they did go there separate ways.
A.Well, that wasn’t part of any discussion that I recall.”

I reject Mr Scott Pettingill’s evidence as to the supposed reason why the property is said to have been put in trust.
Mr Adam’s evidence was that at the time it was purchased by B & M, the intention was that the Nelson Road property was to be a “rental property”. See his evidence during the course of examination-in-chief:
“Q.... You can assume that the argument in this case is all about a property at 111 Nelson Road, Para Vista; right.
A.Yes.
Q...... Is that one of the properties that you were aware the company purchased.
A.Yes, it is.
Q...... What was the other one.
A.Elizabeth Street at Banksia Park or -
Q...... 71 Elizabeth Street, Banksia Park. Which was the first of the two properties that was purchased. If you don’t remember -
A.I really don’t.
Q...... Were each of them financed by borrowing externally.
A.Yes.
Q...... In the case of Banksia Park, was that a rental property from the start.
A.That was the intention in both cases, yes.” (emphasis added)
Part of the cross-examination of the accountant, Mr Adam, reads as follows (I have italicised in this and subsequent quotations of the transcript certain passages):
“Q.... The court has heard evidence that it was your idea and Malcolm’s idea to put the trust together for Scott over Nelson Road. Was that the position.
A.Well, it would have been Malcolm’s idea.
Q...... Not your idea.
A.I wouldn’t have been in a position to initiate that sort of thought process really.
Q...... Did you contribute to the discussions about whether it was a good thing or not; a good idea.
A. I’m sure that Malcolm and I would have discussed it, because as I said yesterday, at the time Scott was a relatively young fellow and the theory was to start in train something for his benefit.
Q...... It was discussed at that time around September of 1992 when the company was buying this house, that it was because Scott was a young man and it was thought that it would be a good idea to have a house, for example, in the future.
A.Well, an investment of some sort, yes.
Q...... It was never discussed, for example, that the whole idea of having a trust was because Scott had had an argument with Kiren (sic), was it.
A.Not that I recall, and certainly not at that stage.
Q...... Was it also an idea behind this trust arrangement that it was an investment property from which the company would derive income from rent.
A.From time to time any number of things could have happened and probably did, but the original concept was clearly the company was going to be paying any bills and receiving any rent from that particular property. It wasn’t intended that that would go to Scott at that point in time.
Q...... Was it the company who was paying the mortgage repayments, do you recall.
A.Either the company or alternatively perhaps Malcolm out of other resources.
Q...... I didn’t catch that.
A.Either the company or Malcolm from other resources.
Q...... It wasn’t Scott, was it.
A.Not that I’m aware of.” (emphasis added)
There is evidence that the company paid other outgoings eg a cheque heel of B & M dated 10 March 1998 was tendered which indicates that as late as that date, which was well after Scott Pettingill was in sole possession of the Nelson Road property, the company paid the land tax due with respect to the property.
As for the precise sequence of events after the Nelson Road property was acquired in about October 1992, another passage in the cross-examination of Mr Adam is as follows:
“Q.... Just still on Nelson Road. The court has heard evidence that the house was bought in or about October 1992. Mr Malcolm Pettingill lived in there for about five to six months, thereafter Scott lives there pretty much on and off up until, essentially, the present day.
A.My memory tells me there was another tenant in there for another period.
Q...... Do you recall roughly how long.
A.I would really only be guessing but it might have been a year or so and I think the name of the tenant was Mill.” (emphasis added)
Mr Adam said that the main source of income for B & M at about that time (presumably for some time after the purchase of the Nelson Road property) was derived from what he describes as the “two rental properties”, namely, Nelson Road and Elizabeth. During the course of his evidence-in-chief, Mr Adam said:
“Q.... I don’t know whether we are at cross-purposes with the word ‘accounts’. Who got the rents, the company or Scott.
A.I think the company.
Q...... Why did the company get the rent if it was to hold the property in trust.
A.I think it is fair to say that at the time this was set up by Mr Malcolm Pettingill, Scott himself was, let’s say, a young lad of about 20 and Malcolm wanted to, if you like, maintain a control over the investment property, albeit that it was for Scott’s benefit in the future.
Q...... Was the rental accounted for within the books of B & M Property.
A.Yes, I’m sure it was.” (emphasis added)
Elsewhere he said:
“Q.... What if it [the Nelson Road property] had been sold, where would the money have gone.
A.Again, I think that that would have been a decision probably largely between Scott and his father.”
I mention, so that it is not thought that I have overlooked it, that annexed to an affidavit of Scott Pettingill which was tendered as part of his case is a statement, presumably prepared by him, dated 24 November 2000. The statement reads:
“111 Nelson Road, Valley View
The following is the improvements made and the approximate amount of money spent by Scott Pettingall (sic).
Floors surfaced and polished by Classic Floors approx $2200
Painting and Plastering inside house approx $2500 - $2800
Decking complete replacement
Back Pergola with treated pine decking - Timber $2000 (Better Wood)
- Labour $1000
Pool Fencing approx $1700
Replace Pool Pump System (Pool Fix, Golden Grove) approx $800
Rates and Taxes paid by Scott”
Interestingly, the statement does not refer to the making of any mortgage repayments by him.
The conclusions which I draw from those passages and items of evidence are:

(a)The Nelson Road property, as was the case with the Banksia Park property, was purchased by B & M for its own benefit, as an investment, to be rented out.
(b)Despite the terms of the so-called Acknowledgment of Trust, there was no intention to give to Mr Scott Pettingill the beneficial interest in the property at the time of the document’s execution, if it was executed at that time.
(c)Insofar as de facto control over the operation of the company was in the hands of Mr Malcolm Pettingill, as clearly it was, he may have had in mind that the acquisition of the property by the company would ultimately be for the benefit of his son, but that intention was not carried into effect at that stage.
(d)Consistently with points (a), (b) and (c), Mr Malcolm Pettingill first occupied the property for his own benefit, and subsequently a tenant was given possession of the property for a period of possibly as long as a year or a little more.
(e)B & M -
(i).... received the rent and accounted for it as income of the company; and
(ii)paid outgoings until as late as 1998, and possibly longer.

The evidence does not establish just how the mortgage repayments were paid after Scott Pettingill occupied the property, but I have no doubt that they were paid by B & M, for the period before Scott Pettingill was admitted into possession. Given the view which I take as to his credibility, I am not prepared to accept that he paid the mortgage repayments after he was admitted into possession.

THE 1996 MORTGAGE

Mr Scott Pettingill’s evidence was that the 1996 mortgage was taken out in order to “re-finance” the property at a lower rate of interest. That evidence would tend to suggest that the proceeds of the 1996 mortgage were utilised to pay out the balance then due on the mortgage taken out at the time the property was purchased in 1992, so that it could be discharged.
A print-out of the register search of the title dated 14 September 1999 confirms that, as of that date, a mortgage in favour of five individual mortgagees is registered on the title. A subsequent endorsement records a transfer by one of the original five mortgagees to two others as joint tenants of that mortgagee’s interest. Neither the date of registration of the mortgage nor the date of the transfer of the interest of one of the mortgagees’ appears from the print-out of the search.
I deduce, however, that they must be the mortgagees in whose favour the 1996 mortgage was executed, as a copy of the 1992 mortgage indicates a different group of mortgagees.
I am satisfied, however, that Mr Scott Pettingill was either unable or unwilling (I suspect the former) to give a full account of the circumstances in which the new mortgage was entered into in 1996.
The terms of the 1992 mortgage indicate that it was an interest-only mortgage, and that the principal sum was due to be repaid in October 1995. The evidence does not establish when, or from what sources, the principal amount due on the 1992 mortgage was discharged. As I have indicated, I do not accept Mr Scott Pettingill’s evidence on any material issue unless it is intrinsically likely or supported by other evidence.
Although, as I have said, Mr Scott Pettingill’s evidence was that the 1996 mortgage was taken out in order to “re-finance” the property, evidence as to the proceeds of the advance made on the 1996 mortgage lends no support to the view that the moneys were used at that time to pay out the principal due on the original mortgage, which, as I have indicated, was due to be repaid in 1995.
Tendered in evidence by way of an exhibit to the affidavit of Mr Scott Pettingill, to which I have earlier referred, is a letter from Mortimer & Mortimer addressed to B & M. In the letterhead, they describe themselves as “mortgage financier and land valuer”.
The letter is dated 28 May 1996. It reads:
“Dear Sir/Madam
MEMORANDUM OF MORTGAGE OVER 111 NELSON ROAD, VALLEY VIEW
As you are aware the settlement of the above matter took place today the 28th of May, 1996. I enclose herewith a cheque for the sum of $68,104.20 being the net proceeds.
In regard to the mortgage for $72,000.00, I should be grateful if you would forward each monthly payment as listed below:-
To M. KIRIAKOU of 276 Marion Road, Netley, 5037
12.75% pa = $393.12                  10.75% pa = $331.46
To D.R. DAHMS of 29 Esplanade, Christies Beach, 5165
12.75% pa = $159.38                  10.75% pa = $134.38
To S GOLDBOLD of 54 Sandison Road, Hallett Cove, 5158
12.75% pa = $127.50                  10.75% pa = $107.50
To R.P. & A. HAUSSEN of 49 Quinlan Avenue, St Marys, 5042
12.75% pa = $85.00  10.75% pm = $71.67
Payments should be made on the 21st day of each and every month commencing on the 21st day of June, 1996.” (emphasis added)
Another letter, written by Geoff Terry Finance Pty Ltd to Mr Malcolm Pettingill dated 28 May 1996, confirms that the net advance made on that mortgage was paid to the company. The letter from Geoff Terry Finance Pty Ltd reads:
“28 May 1996
Mr Malcolm Pettingill
B & M Property Enterprises Pty Ltd
2/59 Fullarton Road
KENT TOWN SA 5067
Dear Malcolm,
RE:    Mortgage Advance George Mortimer
We are pleased to confirm that settlement of the mortgage facility of $72,000 has occurred today with the funds being disbursed in accordance with your written instructions.
Total Funds Advanced:   $72,000.00
B & M Property Enterprises Pty Ltd   $68,104.20
George Mortimer Trust A/c   $2,330.80
(being establishment costs & statutory charges)
Geoff Terry Finance Pty Ltd   $1,565.00
Total:   $72,000.00
Please find enclosed letter from George Mortimer outlining payment arrangements.”
A separate authority addressed to Mr George C. Mortimer, given over the seal of B & M, which is undated except for a reference to the year, 1996, authorises Mr Mortimer to draw a bank cheque in favour of B & M for the amount of the cheque ultimately enclosed with his letter of 28 May 1996, namely, $68,104.20.
That documentary evidence leads me to a finding on the balance of probabilities that B & M, and not the mortgagees named in the 1992 mortgage, received the proceeds of the advance made on the 1996 mortgage.
It is true that B & M must at some time, somehow or other, have repaid the principal due on the 1992 mortgage, which was for a larger amount. So that at the end of the day, there may not have been a net benefit to the company. But all of these matters could have been explained by Mr Malcolm Pettingill, who chose not to give evidence.
Absent any such evidence, on the face of the documents as tendered, I find on the balance of probabilities that B & M derived a benefit from the mortgage advance made in 1996.
I will in due course explain the significance of that finding in the context of the counterclaim.

SOME MATTERS OF LAW

(a)Procedural Irregularities concerning the Directors’ Meeting of 6 September 1992

As I have explained, Mrs McLaughlin, one of the two directors of B & M, is recorded in the minutes of the meeting of directors held on 6 September 1992 as having been present “by telephone”. Mr Adam’s evidence was in part:
“... we spoke to Marie [Mrs McLaughlin] on the phone because she was in Queensland.”
This gives rise to the need to address the question whether a director could properly participate in a directors’ meeting, by telephone.
In Magnacrete v Douglas Hill,[3] I observed:
“The law has not yet advanced to the position whereby board meetings of directors may lawfully be held by separate phone calls to directors:[4] .... It may be that a meeting of directors could be held on a conference telephone, but that is not the position here.”
[3] (1988) 48 SASR 565 at 603.
[4] Referring to Corkery, Directors Powers and Duties, Longman (1987) page 12 and the cases there cited.
I took the matter up again in Re Southern Resources.[5] In that case, after referring to Magnacrete, I said:[6]
“The question comes down to construction of the articles of association. In my opinion, the articles of association of Southern Resources do not contemplate participation in a meeting of directors by telephone. If some directors meet, and others are contacted by telephone either during the course of the meeting or otherwise, those contacted by telephone cannot be regarded as participants in the meeting or in the business conducted at the meeting. If they purport to vote, the vote is of no effect as a formal vote. The situation is no different if a conference telephone, as opposed to a conventional phone is used.”
[5] Re Southern Resources Ltd: Residues Treatment and Trading Co Ltd and Anor v Southern Resources Ltd and Ors (1989) 15 ACLR 770.
[6] Ibid at 794.
Since my decision in Southern Resources, the Corporations Law has been amended by the insertion of s 248D which provides:
“A directors’ meeting may be called or held using any technology consented to by all the directors ....”
That section came into force on 1 July 1998.
It follows that at the time when the meeting in question was held, the common law, which of course takes into account any specific provisions to be found in the articles of association, applied.
As for the common law position as at the date of that meeting, I adhere to the view which I expressed in Magnacrete and Southern Resources Ltd, notwithstanding the fact that my observations in those cases have not been universally accepted.[7]
[7] See generally Re Bankruptcy of Associated Colour Laboratories Ltd (1970) 73 WWR 566; Wagner v International Health Promotions (Administrator Appointed) (1994) 15 ACSR 419 per Santow J at 421-422; Mulcon Pty Ltd v MYT Engineering Pty Ltd (1996) 14 ACLC 1054 per Bryson J at 1057; Byng v London Life Association Ltd and Anor [1989] 1 All ER 560 per Brown-Wilkinson VC (with whom Mustill and Woolf LJJ agreed) at 565; Bell and Anor v Burton and Ors (1993) 12 ACSR 325 per Tadgell J at 328-329; Re GIGA Investments Pty Ltd (In Administration) (1995) 17 ACSR 472 per Branson J at 475 et seq; Re Farnell Electronic Components Pty Ltd (1997) 25 ACSR 345.
There is, however, a difficulty in knowing just what the terms of the articles of association of B & M were as at the date of the meeting held on 6 September 1992. A copy of the memorandum of association and articles of association of B & M was in the papers obtained by the liquidator from Mr Adam. Neither document is dated, and I have not been furnished with evidence, which I would have thought could have been obtained easily, to indicate what the original state of the memorandum and articles was, and the dates upon which any changes in them might have been effected.
At all events, the articles adopt the regulations in Table A in Schedule 1 to the Corporations Law, but with some modifications. One of the modifications is as follows:
“10... The following regulation is inserted:-
69(3). A meeting of directors shall for the purposes of these Articles include the directors communicating with each other by any technological means by which they are able to participate in discussion notwithstanding the directors (or one or more of them) are not physically present in the same place and a director so participating in such meeting is deemed to be present (including for the purposes of constituting a quorum) and entitled to vote at the meeting. This regulation shall not limit the manner in which directors may meet or the generality of Regulation 69(1).”
Given the state of the evidence, the difficulty is to determine when it was that Regulation 69(3) became part of the articles of association.
I am unable to find, one way or the other, whether Regulation 69(3) was applicable at the time of the meeting in question. If it was not of application, other provisions in the articles of association might well lead me to the view which I took in Re Southern Resources. But given the uncertainty as to the time of operation of Regulation 69(3), I am unable to reach a conclusion either way on that aspect of the matter.

There is a further possible irregularity, in that insofar as Mr Adam purported to chair the meeting of 6 September 1992, as he was not a director, he was not entitled to do so.
But if one assumes irregularities both with respect to the voting by telephone and the chairing of the meeting, it does not follow that the alleged directors’ meeting said to have taken place on that day should be held to have been invalidly constituted, or that any resolution passed at the meeting should be regarded as void or voidable.
Section 1322(2) of the Corporations Law provides:
“A proceeding under this Law is not invalidated because of any procedural irregularity unless the court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the court and by order declares the proceeding to be invalid.”
A “proceeding” is defined as “any proceeding whether a legal proceeding or not”.[8]
[8] Corporations Law s 1322(1)(a).
A procedural irregularity includes any aspect of the manner in which a directors’ meeting may be held. The possible irregularities here are, within the meaning of the section, procedural irregularities.
The result is that, even assuming that the meeting was affected by both possible irregularities, the resolution is not thereby invalidated unless I was to be of the opinion that substantial injustice, which could not be remedied by any order of the court, has been caused.
In this case, if I accept that Mrs McLaughlin expressed her assent to the purchase of the Nelson Road property on the footing that it be held in trust for her brother, and given that Mr Adam was clearly in favour of the transaction in those terms, the only two shareholders of the company would obviously have voted in favour of the transaction if it had been put to a vote of shareholders as opposed to a vote of directors.
In those circumstances, I do not think that the procedural irregularities associated with the directors’ meeting said to have been held on 6 September 1992 could be said to have caused “a substantial injustice” within the meaning of s 1322(2).
No order has been sought under that section remedying the irregularity, but for reasons which I will come to it is unnecessary further to address that aspect of the matter.

(b)Breach of Fiduciary Duty

The outstanding feature of the case is Mr Scott Pettingill’s complete ignorance of the fiduciary duties owed by him as director, and the manifest breach of those duties constituted by his vote in favour of the purchase of the Nelson Road property on the footing that it be held in trust for himself.
This is not a case in which any extended discussion of the scope of the relevant fiduciary duty in equity is called for.[9] The duty finds statutory expression in s 232 of the Corporations Law which relevantly re-enacts the provisions found in s 229(1) of the former Companies Code, which was discussed by me in Re Southern Resources. Equally clearly, Mr Scott Pettingill was in breach of the articles of association, more particularly of paragraph 71 of Table A annexed to the articles, which reads:
“A director shall not vote in respect of any contract or proposed contract with the company in respect of which he is in any way, whether directly or indirectly, interested or in respect of any matter arising out of such a contract or proposed contract and, if he votes in contravention of this sub-regulation, his vote shall not be counted.”
[9] I discuss this topic in Re Southern Resources Ltd (supra) 15 ACLR at 784 et seq.
It follows that the directors’ resolution to hold the Nelson Road property on trust for Mr Scott Pettingill is voidable. If declared void, Mr Pettingill would be obliged in equity to account for any benefit which he obtained, that is, by restoring it to the company.
But if he did not obtain a benefit, the manifest breach of fiduciary duty is of little consequence. As I go on to explain, the declaration of trust was ineffective for other reasons. In those circumstances, there is no reason to consider further the question whether the resolution should be declared void, or should be avoided by equitable decree.

(c)Imperfect Gifts in Equity

While a voluntary declaration of trust may be all that is needed to confer an equitable interest in the donee, subject to the qualification that where it relates to land, the declaration must be in writing,[10] the declaration will not be effective if it operates as a promise to give in the future, nor, as it is put by the learned author of Snell: [11]
“... if the continuance of [the donor’s] animus donandi is negatived by his subsequently taking security for the debt forgiven or treating the property given as still being his own.” (emphasis added)
[10] Law of Property Act 1936, s 29(1)(b).
[11] Snell’s Principles of Equity 28th Ed, page 126. And see Jacobs Law of Trusts in Australia (6th Ed) (1997) (Butterworths) at para [626] page 110:
“When a trust had been declared but the settlor has not divested himself of the trust property, the trust is said to be incompletely constituted and operates merely as an agreement to create a trust. Such an agreement will not be enforceable unless it is based upon valuable consideration ...”
That part of the statement of principle extracted from Snell which I have italicised is supported by the learned author by reference to two authorities in particular, namely, Re Wale[12] and Re Freeland.[13]
[12] [1956] 1 WLR 1346.
[13] [1952] Ch 110.
In Re Wale, the settlor made a voluntary settlement in favour of her daughter of a parcel of investments registered in the settlor’s name. The facts indicated that the settlor, who was in advanced years, had forgotten about the settlement and had continued to regard the investments as her own property. Upjohn J held that there was an imperfect gift, and the settlement failed. During the course of his judgment, Upjohn J observed:[14]
“The relevant principles of law are not in dispute. As Sir George Jessel MR said in Richards v Delbridge:[15]
‘The principle is a very simple one. A man may transfer his property, without valuable consideration, in one of two ways: he may either do such acts as amount in law to a conveyance or assignment of the property, and thus completely divest himself of the legal ownership, in which case the person who by those acts acquires the property takes it beneficially, or on trust, as the case may be; or the legal owner of the property may, by one or other of the modes recognised as amounting to a valid declaration of trust, constitute himself a trustee, and, without an actual transfer of the legal title, may so deal with the property as to deprive himself of its beneficial ownership, and declare that he will hold it from that time forward on trust for the other person.’
There is one important principle also to be borne in mind. If the gift for any reason be imperfect, the court will not in effect approve that gift by construing an imperfect gift as a trust. In the same case Sir George Jessel dealt with that principle in this way:[16]
‘The true distinction appears to me to be plain, and beyond dispute: for a man to make himself a trustee there must be an expression of intention to become a trustee, whereas words of present gift show an intention to give over property to another, and not retain it in the donor’s own hands for any purpose, fiduciary or otherwise’.” (emphasis added)
[14] Ibid 1349-1350.
[15] (1874) LR 18 Eq 11, 14.
[16] LR 18 Eq 11, 15.
Later, after referring to dealings by the donor with certain of the investments, Upjohn J stated:[17]
“In each of those cases the settlor either kept the proceeds or made presents to her children. .......
Accordingly, in my judgment, the settlor did not evince any continuing intention in relation to the ... [the investments]....”. (emphasis added)
[17] Ibid 1359.
In Re Freeland, the plaintiff alleged that the testatrix, during her lifetime, had given her a motor car, although it was not delivered to the plaintiff but remained in the testatrix’s garage. Later, the testatrix agreed to lend the motor car to the defendant, who took possession and remained in possession of it until the death of the testatrix over a year later.
The Court of Appeal overturned the decision of the trial judge in favour of the plaintiff, holding that the principle laid down in Strong v Bird[18] that an imperfect gift might be perfected by the subsequent appointment of the donee to be the donor’s executor only applied where the donor had an immediate intention to make an out-and-out gift, and further, that that intention survived until the donor’s death. The principle had no application where the donor had a mere intention to make a gift in the future.
[18] (1874) LR 18 Eq 315.
In the course of his judgment,[19] Evershed MR cited Kennedy LJ in In re Pink[20] where the latter said:
“ ‘It is quite clear that what is spoken of both in the headnote in Strong v Bird,[21] and also in In re Stewart,[22] as a continuing intention on the part of the testator, or the testatrix as the case may be, means a continuing intention that the gift should have been given at the time when it was given’.” (emphasis added)
[19] Ibid at 116
[20] [1912] 2 Ch 528 at 538.
[21] LR 18 Eq 315.
[22] [1908] 2 Ch 251.
In Re Freeland, in a separate judgment, Jenkins LJ observed:[23]
“In my view, the lending of the car to the defendant, albeit with the consent of the plaintiff, is really fatal to the plaintiff’s claim that there was a continuing intention to make an immediate gift. In my judgment the principle of Strong v Bird[24] is directed to perfecting gifts complete in all respects, except as regards the legal formalities necessary for the proper transfer of title to the particular property in question. It is confined, in my view, to cases where nothing remains to be done but the mere formality of transfer, in order to perfect what was intended by the testator or testatrix to be an immediate gift, inter vivos, and surely there can be no room for its application in a case where there is an intention to give, but the gift is not completed because the intending donor desires first of all to apply the subject-matter of the contemplated or promised gift to some other purpose.” (emphasis added)
[23] Ibid 121.
[24] LR 18 Eq 315.
The view taken in Re Freeland of the requirement for a continuing intention on the part of the donor was endorsed in the High Court in Matthews and Ors v Matthews:[25]
“Upon consideration of the cases it cannot be doubted that there must be an attempt to make an immediate gift, and not a mere expression of intention, and that there must be a continuous intention of giving, which, after the act of making what the testator supposes to be a gift, can only mean, I think, that he believes it to have operated, and continues to mean that it should operate, as a gift, although in effect it does not satisfy the legal or equitable requirements of a perfect gift.”
[25] (1913) 17 CLR 8 per Barton ACJ at 19.
Although those statements are in the context of the principle in Strong v Bird, which recognises that an imperfect gift made by a testator during his or her lifetime may be perfected by the vesting of the subject matter of the gift in the donee if the donee is appointed executor, dicta emphasising the need for an intention to make an immediate gift, coupled with a continuous intention of giving, are equally apposite where the question is whether there has been a gift enforceable in equity and, rather than death supervening, the supervening act which has precipitated consideration of the effectiveness of the gift is the liquidation of the donor.[26]
[26] See also Cope and Anor v Keene and Anor (1968) 118 CLR 1.
I add that I have at times been concerned at the application of the parol evidence rule, which it might be thought would operate to exclude evidence of an intention on the part of B & M inconsistent with the contents of the declaration of trust.
However, Starr v Starr[27] is authority for the proposition that parol evidence is admissible in a case such as this, to show that the declaration was never intended to operate as a binding declaration of trust.
[27] [1935] SASR 263.
In Starr, the defendant was said to have constituted himself a trustee for each of his three infant daughters of moneys standing to his credit in accounts with a savings bank. The written declaration signed by him at the time of the opening of the accounts declared that the money would be the exclusive property of his daughters.
But the evidence made it clear that the defendant had always treated the moneys as his own, and did not have any intention of disposing of the beneficial interest in them. In those circumstances, Napier J, relying on Commissioner of Stamp Duties (Qd) v Jolliffe,[28] held that, notwithstanding the terms of the written instrument said to constitute a trust, evidence was admissible to show that the document was never intended to operate as a binding declaration of trust.
[28] (1920) 28 CLR 178.
Likewise, I am satisfied that evidence was properly admitted in this case which demonstrates that B & M never intended the so-called declaration of trust to take effect immediately to vest the beneficial interest in the subject property in Mr Scott Pettingill.

CONCLUSIONS

The short question in this case is whether equity will enforce a voluntary declaration of trust purporting to have immediate effect when the settlor delays transfer of the beneficial interest in the property and retains a benefit.
Here, B & M mortgaged the property for its own benefit at the same time as it purported to make a declaration of trust in favour of the defendant. Thereafter it permitted Mr Malcolm Pettingill to occupy the property for some months, following which, for a year or so, it admitted a tenant and kept the rental. Later again, in 1996, it remortgaged the property and obtained the benefit of a further advance pursuant to the new mortgage.
Furthermore, I accept the evidence of Mr Adam that the defendant’s father, whose state of mind I attribute to B & M, wished to maintain control over the property; that he did not intend at the time of the purported execution of the declaration of trust that the defendant would have the benefit of the property at that time but may have had in mind that it would eventually inure for the defendant’s benefit. Although the source of the payments under the two mortgages has not been established on the evidence, after the purported declaration of trust, the company continued to pay at least some of the outgoings.
In all those circumstances, the purported declaration of trust did not operate to dispose of the beneficial interest in the property to the defendant. The plaintiff, through the liquidator, is entitled to possession of the property.
The counterclaim must be dismissed.
I accept, however, that during the period of his occupation of the property the defendant may have paid for some improvements to it, and at least some of the outgoings. In those circumstances, he should be given the opportunity of demonstrating, if that should be the case, that he has paid, by one means or another, a total amount which exceeds a fair rental for the period of his occupation. In the event that he has paid out more than a fair rental, the plaintiff should reimburse the difference from any proceeds of sale of the property.
I will, therefore, as a term of the order disposing of the proceedings, direct that a Master shall, at the request of the defendant, inquire into and take an account of all payments of any outgoings by the defendant during his period of occupation of the subject property, including mortgage repayments, rates and taxes, insurance premiums (other than as to the contents of the house property) and payments by the defendant for maintenance of the building and for any physical improvements to the property. In the event that the Master takes accounts, he or she shall also inquire into and assess a fair rental value of the subject property during the period of the defendant’s occupation.
I make it clear that it will be entirely a matter for the defendant to decide whether or not to seek such an inquiry.
Furthermore, whether or not the defendant seeks an inquiry and taking of accounts by a Master, the liquidator of the plaintiff is at liberty to enter into possession of the property after a short period while the defendant has an opportunity to find alternative accommodation. If the liquidator of B & M should decide to sell the property, or if it is sold by the mortgagees, the net proceeds of the sale in the hands of the liquidator are to be held by him pending the completion of the Master’s inquiry and taking of accounts, if this should in the meantime have been requested by the defendant.
I will allow the parties to speak to the minutes of the final order and judgment. Subject to that, I order and adjudge:
That the defendant give up possession of the subject property, namely, the whole of the land comprised and described in Certificate of Title, Volume 5096, Folio 129, being the house property situated at and known as 111 Nelson Road, Valley View, to the plaintiff on or before the 20th day of April 2001.
That the defendant may, on or before the 30th day of March 2001 file an application for the making of an inquiry and the taking of accounts by a Master in accordance with this judgment, the outcome of which shall be set out in a report for the Court to be prepared pursuant to SCR r 85.02(2)(a), with liberty to the Master to refer to me any question arising during the course of the inquiry and taking of accounts.
That should the subject property be sold, in the event that the defendant has made application for an account and inquiry, the liquidator of the plaintiff shall not dispose of or distribute the net proceeds of sale, but shall retain the same in an interest-bearing bank account until further order.
That the defendant’s counterclaim be dismissed.
Liberty to any party to apply for such further or other order or direction as may be thought necessary for the effective carrying out of this judgment and order.
I will hear the parties as to costs.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

In accordance with my obligation to protect the revenue, and having regard to s 22 of the Stamp Duties Act I insisted that the document be stamped before I would receive it in evidence. It was submitted for late stamping, but apparently no duty or penalty was payable. It was, however, adjudged “duty stamped”.
Briginshaw v Briginshaw (1938) 60 CLR 336.
(1988) 48 SASR 565 at 603.
Referring to Corkery, Directors Powers and Duties, Longman (1987) page 12 and the cases there cited.
Re Southern Resources Ltd: Residues Treatment and Trading Co Ltd and Anor v Southern Resources Ltd and Ors (1989) 15 ACLR 770.
Ibid at 794.
See generally Re Bankruptcy of Associated Colour Laboratories Ltd (1970) 73 WWR 566; Wagner v International Health Promotions (Administrator Appointed) (1994) 15 ACSR 419 per Santow J at 421-422; Mulcon Pty Ltd v MYT Engineering Pty Ltd (1996) 14 ACLC 1054 per Bryson J at 1057; Byng v London Life Association Ltd and Anor [1989] 1 All ER 560 per Brown-Wilkinson VC (with whom Mustill and Woolf LJJ agreed) at 565; Bell and Anor v Burton and Ors (1993) 12 ACSR 325 per Tadgell J at 328-329; Re GIGA Investments Pty Ltd (In Administration) (1995) 17 ACSR 472 per Branson J at 475 et seq; Re Farnell Electronic Components Pty Ltd (1997) 25 ACSR 345.
Corporations Law s 1322(1)(a).
I discuss this topic in Re Southern Resources Ltd (supra) 15 ACLR at 784 et seq.
Law of Property Act 1936, s 29(1)(b).
Snell’s Principles of Equity 28th Ed, page 126. And see Jacobs Law of Trusts in Australia (6th Ed) (1997) (Butterworths) at para [626] page 110:
“When a trust had been declared but the settlor has not divested himself of the trust property, the trust is said to be incompletely constituted and operates merely as an agreement to create a trust. Such an agreement will not be enforceable unless it is based upon valuable consideration ...”

[1956] 1 WLR 1346.
[1952] Ch 110.
Ibid 1349-1350.
(1874) LR 18 Eq 11, 14.
LR 18 Eq 11, 15.
Ibid 1359.
(1874) LR 18 Eq 315.
Ibid at 116
[1912] 2 Ch 528 at 538.
LR 18 Eq 315.
[1908] 2 Ch 251.
Ibid 121.
LR 18 Eq 315.
(1913) 17 CLR 8 per Barton ACJ at 19.
See also Cope and Anor v Keene and Anor (1968) 118 CLR 1.
[1935] SASR 263.
(1920) 28 CLR 178.

[2001] SASC 75

22 March 2001