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Byrnes & Anor v Kendle

Byrnes & Anor v Kendle

Case [2010] HCATrans 322 8 December 2010

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[2010] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A23 of 2010

B e t w e e n -
MARTIN FRANCIS BYRNES
First Appellant
JOAN WILHELMINA BYRNES
Second Appellant
and
CLIFFORD FRANK KENDLE
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 DECEMBER 2010, AT 12.00 PM

MR D.M.J. BENNETT, QC: May it please the Court, I appear with my learned friend, MR A.L. TOKLEY, for the appellants. (instructed by Haarsma Lawyers)

MR M.A. FRAYNE, SC: If the Court pleases, I appear with my learned friend, MR N.J. FLOREANI, for the respondent. (instructed by Corsers Lawyers.

FRENCH CJ: Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, there are two principal issues in this case, both fairly straightforward issues arising out of the law of trusts. The first concerns a trustee’s duty to collect rent and the second concerns what amounts to an acquiescence. There is a third issue raised by the notice of contention, which I will deal with in reply, as to whether there was a trust at all. That was an issue upon which we succeeded before the Full Court. There are some other issues about quantum and adjustments and what orders should be made if your Honours are in our favour and about costs. Those matters will be dealt with my learned friend, Mr Tokley. The two matters to which I address myself in‑chief are, first, the trustee’s duty to collect the rent and, secondly, the question of acquiescence.

In relation to the trustee’s duty, may I start by dispelling what we would describe as a non‑issue which is the proposition suggested in paragraph 25 of our learned friend’s submissions that the respondent was a “bare trustee”. The paragraph in my friend’s submissions commences with the words, “whilst labels are not of particular assistance” and we rather endorse those words. The characterising the respondent as a bare trustee does not assist for a number of reasons. First, he was not a bare trustee.

GUMMOW J: Should we not look at the trust instrument?

MR BENNETT: Yes, certainly. I will be doing that in a moment. The starting point, your Honour, is ‑ ‑ ‑

HEYDON J: The absurdity rule is this - the question is, “Was the man required to recover any rent?” Answer, “No, he was a bare trustee, therefore he was not required to recover any rent.” That is a circular form of reasoning, if reasoning is the right word.

MR BENNETT: That is what is put against us. Yes, your Honour. We say, firstly, he was not a bare trustee because he had an interest in the trust property. That arose in two ways. First, he owned the legal estate and half of it was in his own right, but more importantly there was a contingent remainder in his favour, an equitable contingent…

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 Byrnes & Anor v Kendle

Details

AGLC: Byrnes & Anor v Kendle [2010] HCATrans 322
Case: [2010] HCATrans 322
Decision Date

CaseChat Overview and Summary

Byrnes and another (the appellants) appealed to the High Court of Australia against a decision of the Supreme Court of Queensland which had dismissed their appeal from a judgment of the District Court. The dispute concerned the ownership of a parcel of land, with the appellants claiming it was held by the respondent, Kendle, on trust for them. The appellants alleged that they had entered into an agreement with the respondent for the purchase of the land, but that the respondent had subsequently repudiated this agreement and sought to retain the land for himself.

The High Court was required to determine whether the Supreme Court of Queensland had erred in upholding the District Court's finding that no enforceable agreement for the sale of the land had been concluded between the parties. Specifically, the court had to consider whether the evidence supported the conclusion that the parties had not reached a concluded agreement on all essential terms, including the price, and whether the conduct of the parties indicated an intention to be bound at that stage.

The High Court, in a joint judgment, affirmed the findings of the lower courts. Their Honours reasoned that for a contract to be binding, there must be a concluded agreement on all essential terms. In this instance, the evidence did not demonstrate that the parties had reached a consensus on the price, which was an essential term of the purported sale. The conduct of the parties, particularly the ongoing negotiations and the absence of a formal contract, indicated that they did not intend to be legally bound until a formal agreement was executed. The principles of contract formation, requiring offer, acceptance, and consideration, along with an intention to create legal relations, were applied.

The appeal was dismissed.

Orders