Buck v Washband - [1998] QCA 310

IN THE COURT OF APPEAL [1998] QCA 310
SUPREME COURT OF QUEENSLAND
Appeal No. 346 of 1998
Brisbane
[Buck v. Washband]
BETWEEN:
MICHELE BUCK

(Defendant) Appellant

AND:
CHERYL WASHBAND

(Plaintiff) Respondent
de Jersey C.J.
McPherson J.A.
Thomas J.A.

Judgment delivered 16 October 1998
Separate reasons for judgment of each member of the Court each concurring as to the order made.
APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS: TRUSTS - resulting trust - no financial contribution - whether
presumption of resulting trust rebutted - whether open to trial judge to
infer that a gift of an interest in the property intended - interpretation
- whether discharges related to the property.
Calverley v. Green (1984) 155 C.L.R. 242
Counsel: Mr P.A. Keane Q.C., with him Mr D.J. Campbell for the appellant
Mr P.E. Hack for the respondent
Solicitors: Hemming & Hart for the appellant
Peter Daley for the respondent
Hearing Date: 30 September 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 346 of 1998
Brisbane

Before de Jersey CJ
McPherson JA
Thomas JA
[Buck v. Washband]
BETWEEN:
MICHELE BUCK

(Defendant) Appellant

AND:
CHERYL WASHBAND

(Plaintiff) Respondent

REASONS FOR JUDGMENT - de JERSEY CJ
Judgment delivered 16 October 1998
1 The parties are sisters. The learned trial judge held that the appellant held $77,273 on trust

for herself and the respondent, and that the respondent was entitled to $35,379.09 of it. The
judgment in favour of the respondent, including interest, amounted to $55,191.38.
2 The sum of $77,273 represented the proceeds of sale of a property at Boondall, purchased

in the joint names of the appellant, the respondent and their mother. On his Honour’s findings, the
appellant and her mother provided all of the moneys which facilitated the purchase of that property,
the respondent making no financial contribution. The Boondall property had been purchased utilising
to a large extent the proceeds of sale of another property, in Killeen Street, Nundah, which had earlier been owned by the appellant and her mother. After the sale of the Boondall property, the
appellant deposited the moneys into a joint account in the names of the appellant and the respondent,
later placing the moneys into an account in her name alone.
3 The circumstance that the respondent made no financial contribution to the property from

which the fund derived would give rise to a rebuttable presumption that the respondent held her
interest in the moneys on a resulting trust for the appellant (and their mother). But the learned judge
held that the presumption was rebutted by evidence that the appellant and her mother had given the
respondent an interest in the Boondall property in order to aid her recovery from a psychiatric illness,
to give her an interest “so that she could be part of it and be part of the improvements we were
making”. The judge did not read that as relating merely to the conferring of a bare legal estate, but

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 Buck v Washband

Details

AGLC: Buck v Washband [1998] QCA 310
Case: [1998] QCA 310
Decision Date: 16/10/1998

CaseChat Overview and Summary

The matter of Buck v. Washband involved the parties contesting the existence of a resulting trust in relation to a property. The dispute centred around whether the plaintiff, Buck, had made a financial contribution towards the purchase of the property and whether this contribution was sufficient to rebut the presumption of a resulting trust. The case was heard in the Supreme Court of Queensland.

The primary legal issues that the court needed to address were whether the presumption of a resulting trust could be rebutted and whether it was appropriate for the trial judge to infer that a gift of an interest in the property was intended. Additionally, the court needed to determine whether the discharges related to the property in question were relevant to the case. The court also needed to consider the interpretation of the relevant provisions of the law and the applicable legal principles.

The court held that the presumption of a resulting trust could be rebutted if there was evidence of a common intention that the property was to be shared beneficially. The court also found that it was open to the trial judge to infer that a gift of an interest in the property was intended based on the circumstances of the case. The court further held that the discharges related to the property were relevant to the case and that the interpretation of the relevant provisions of the law was consistent with the principles set out in Calverley v. Green. The court ultimately found in favour of the plaintiff, finding that a resulting trust existed in the property.

The court ordered that the property be held on trust for the plaintiff and the defendant in equal shares, subject to the discharges related to the property. The court also ordered that the defendant pay the plaintiff's costs of the proceedings.

Orders