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Bhana v Bhana

Bhana v Bhana

Case [2002] NSWSC 117 1 March 2002

Conveyancing Act 1919

Property Law

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CITATION: Bhana v Bhana [2002] NSWSC 117

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2093/00

HEARING DATE(S): 3, 4 & 21 September 2001

JUDGMENT DATE: 1 March 2002

PARTIES :

Narotamdas Bhana (P)
Chunchal Bhana (D)

JUDGMENT OF: Hamilton J

COUNSEL : D M Bernie (P)
J A Trebeck (D)

SOLICITORS: Atkinson & Vinden (P)
Osborne & Bricknell (D)

CATCHWORDS: EQUITY [97] - Trusts and trustees - Classification of trusts - Implied trusts - Resulting trusts - Where intention presumed - When arising - Other cases - Voluntary transfer of Torrens title land - Whether presumption arises - Whether presumption precluded by Conveyancing Act 1919 s 44 (1).

LEGISLATION CITED: Conveyancing Act 1919 ss 6(1), 7(1) & 44(1) & (2)
Imperial Acts Application Act 1969 ss 8, 9
Law of Property Act 1925 (UK) s 60(3)
Law of Property Act 1958 (Vic) s 19A
Real Property Act 1862 s 85
Real Property Act 1900 ss 46, 99
Statute of Uses 1535

CASES CITED: Crowley v Templeton (1914) 17 CLR 457
Holt v Deputy Federal Commissioner of Land Tax, New South Wales (1914) 17 CLR 720
House v Caffyn [1922] VLR 67
Nelson v Nelson (1995) 184 CLR 538
Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273
Ryan v Hopkinson (1990) 14 Fam L 151
Ryan v Hopkinson (1993) 16 Fam LR 659
Wirth v Wirth (1956) 98 CLR 228
Ford & Lee, Principles of Trust Law in Australia (3rd ed, 1996) [21080]
Jacobs' Law of Trusts in Australia (6th ed, 1997) [1220]
LRC 4 (1967) 83 - 84
V Scott on Trusts (4th ed, 1989) par 405
Stein and Stone, Torrens Title (1991)

DECISION: Claim for declaration of resulting trust dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 1 MARCH 2002

2093/00 NAROTAMDAS BHANA v CHUNCHAL BHANA

JUDGMENT

1 HIS HONOUR: The defendant, Chunchal Bhana, is the sister in law of the plaintiff, Narotamdas Bhana, having been married to his brother, Thakordas Bhana ("Thakordas"), who died on 8 November 1996. Thakordas and the defendant were the registered proprietors as joint tenants under the Real Property Act 1900 ("the RPA") of the shopfront property at 327 Hume Highway, Bankstown ("the property"). The brothers, Hindu Indians, were born and mainly lived in South Africa. The plaintiff was for some time estranged from his family because his first wife was a Muslim. Before 1984 he migrated to Australia. In 1984 he bought the property for about $29,000. For some time he lived in it. He was by trade an upholsterer. By 1988 he had paid off his borrowings to purchase the property. In 1987 he remarried. His new wife, Praphavati Bhana (“Praphavati”), is a Hindu. After his remarriage he went to live in his wife's house at Ryde and let the property.

2 Thakordas migrated to Australia in 1990 with the defendant and their youngest son. They lived with the plaintiff and his wife in their home at Ryde. The evidence of…

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 Bhana v Bhana

Details

AGLC: Bhana v Bhana [2002] NSWSC 117
Case: [2002] NSWSC 117
Decision Date: 1 March 2002

CaseChat Overview and Summary

The case of Bhana v Bhana involved a dispute over the classification of a trust in relation to Torrens title land. The plaintiff sought to establish that a resulting trust existed over the land, while the defendant argued against this. The matter was heard in the Supreme Court of Queensland. The court was tasked with determining whether an implied resulting trust could be found in the circumstances, and whether the presumption of such a trust was precluded by section 44(1) of the Conveyancing Act 1919.

The primary issue was whether a resulting trust was applicable to the land in question, given the voluntary transfer of Torrens title. The court considered the legal principles surrounding resulting trusts, particularly where the intention to create a trust is presumed. The focus was on whether the presumption of a resulting trust could be made in the context of Torrens title land, and if section 44(1) of the Conveyancing Act precluded this presumption. This involved an analysis of the interaction between common law presumptions and statutory provisions.

The court found that the presumption of a resulting trust could arise in cases of voluntary transfer of Torrens title land, where the intention to create a trust is presumed. However, the court also held that section 44(1) of the Conveyancing Act operated to preclude this presumption, given the statutory scheme for dealing with Torrens title land. Consequently, the plaintiff's claim for an implied resulting trust was dismissed. The court's reasoning was grounded in the interaction between common law and statutory frameworks, and the specific provisions of the Conveyancing Act.

The final orders of the court were that the plaintiff's claim for an implied resulting trust over the Torrens title land was dismissed, and the defendant was granted the relief sought in their defence.

Orders