Brown v New South Wales Trustee and Guardian

The appeal concerned a dispute over property located in Mosman, New South Wales. The appellant, as executrix of Ian's estate, contended that John, the deceased registered proprietor of the Mosman land, held it on trust for Ian. The primary judge dismissed these proceedings, finding that John did not hold the land on express or resulting trust for Ian, and alternatively, that any such claim was defeated by confirmation or estoppel. The appellant appealed this decision.

The court was required to determine whether John held the Mosman land on trust for Ian, and if so, whether any such trust claim was defeated by confirmation or estoppel. Additionally, the court considered novel arguments concerning the effect of no grant of administration of John's estate at the time of the proceedings and the impact on equitable defences when the State of New South Wales was eventually entitled to John's net estate as bona vacantia.

The court found that at the time John acquired the Mosman land, he held it on trust for Ian. However, it also concluded that the primary judge was correct in holding that any claim that the property was held on trust was defeated by confirmation or estoppel. The court reasoned that the onus was on the appellant to satisfy the court on the balance of probabilities that John held the property on trust for Ian, requiring evidence sufficient to enable the court to feel actual persuasion of the asserted fact. While a note dated 5 December 2000, on its own, supported the conclusion that the money was transferred to John with the intention of purchasing a house for Ian, the surrounding circumstances, including written instructions signed by Ian, did not provide a sufficient basis to overcome the defence of confirmation or estoppel. The court also considered and rejected the arguments concerning the effect of the absence of a grant of administration and the State's entitlement to the estate.

The appeal was dismissed with costs.