Byrnes & Byrnes v Kendle - [2009] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BYRNES & BYRNES v KENDLE
[2009] SADC 36
Judgment of His Honour Judge Boylan
31 March 2009
EQUITY - TRUSTS AND TRUSTEES - POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES
Claim by plaintiff wife and her son that defendant husband had breached his duty as trustee by failing to collect rent for trust property. Matrimonial home registered in husband's name only although wife had contributed to purchase price. Husband signed acknowledgement that he held half share on trust for wife. They moved to another house, intending to rent out former matrimonial home (the trust property). Husband allowed his son to move in but son failed to pay rent. Wife and her son, to whom she assigned her beneficial interest, claimed that husband, as trustee of an express trust, owed duty to collect rent and had breached that duty.
Held - (1) No express trust - Husband did not intend to create such a trust.
(2) If a trust was created, no general duty to collect rent.
(3) If a duty to collect rent, wife's consent to breach a bar to any claim by her or by her son as her assignee.
B & M Property Enterprises Pty Ltd (In Liquidation) v Pettingill [2001] SASC 75; Howling v Kristofferson (unreported) Supreme court of New South Wales Equity Division No 2911 of 1992; Storti v Andrews [1998] SASC 6737 (2 July 1998); Spellson v George (1992) New South Wales Law Reports 666; Re Pauling's Settlement Trusts; Younghusband v Coutts & Co [1962] 1 Weekly Law Reports 86; Life Association of Scotland v Siddal (1861) DE GFJ; 45 ER 800 at 74; Santos & Ors v American Home Assurance Company & Ors (1986) 127 LSJS 220, especially at 228, considered.

BYRNES & BYRNES v KENDLE
[2009] SADC 36
Introduction

Joan Byrnes and Clifford Kendle are married but separated. Mrs Byrnes and her son, Martin Byrnes, claim that Mr Kendle was trustee of a house property in which she had a beneficial interest and that Mr Kendle breached his duty as trustee in a number of ways, mainly by permitting his son to live in the house without paying rent. In my view, the claims fail because, if Mr Kendle was a trustee, he did not, in the circumstances of this case, owe to the beneficiary the duties asserted.
I heard evidence from the parties only. All three gave their evidence-in-chief on affidavit and were cross-examined. I am satisfied that all three were honest, although there is a curiosity in Martin Byrnes’s evidence which made me wary of it. I shall refer to that curiosity later.
The Witnesses
Mrs Byrnes is 87. Unsurprisingly, she was unclear about some events which happened many years ago, but she plainly had her wits about her. Mr Kendle is 84. Fairly recently he suffered a stroke. In cross-examination he agreed that the stroke and the medication he takes may have affected his memory, but he gave apparently clear evidence which was internally consistent. He impressed me as completely frank and straightforward. Where Mr Kendle’s evidence differs from that of Martin Byrnes and his mother, I generally prefer Mr Kendle’s evidence.
Findings of Fact
Many of my findings of fact are irrelevant given the view I take of the matter, but I set them out in case I am wrong about my decision.
Mrs Byrnes and Mr Kendle married in 1980. She was then 60 and he about 57. They are now 87 and 84. At the time of their marriage, both had adult children by previous marriages. Mrs Byrnes and Mr Kendle lived together for about 26 years before separating in early 2007. They have not divorced and there has been no settlement of property.
Mrs Byrnes’s son, Martin, is a solicitor. Since December 1989, he has lived overseas.
At the time of their marriage, Mr Kendle owned no real estate. Mrs Byrnes owned a number of properties and had other assets. While she generally managed her own affairs, she took advice from her son.
In 1984, Mr Kendle bought a home unit at Brighton for $31,000.00. He borrowed money to buy the unit which was subject to a Defence Service Homes mortgage. Mrs Byrnes contributed $2,000 to the purchase price. The property was registered in Mr Kendle’s name only and he paid all mortgage payments. They lived in the unit. In December 1988, Mrs Byrnes gave Mr Kendle $2,000. There is no evidence why she did so. In about July 1989, after Mr Kendle had told Mrs Byrnes that he needed money, she gave him a further $14,000.
On 1 August 1989, Mr Kendle signed a receipt acknowledging that he had received that $14,000. At the bottom of the receipt, in Mrs Byrnes’s handwriting, but in ink of a different colour and without any signature of Mr Kendle, is a note that she gave him $2,000 in December 1988 and another $2,000 at the time of the purchase of the property. Mrs Byrnes gave evidence that she did not know when she wrote the entries at the bottom of the receipt. I find that those entries were written at a date later than 1 of August 1989. Had the entries been made on 1 of August 1989, I would have expected them to have been in the body of the receipt. Neither the receipt proper nor the additional entries make any reference to Mrs Byrnes’s purchasing any interest in the Brighton property.
At Martin Byrnes’s instigation his mother and Mr Kendle executed a document entitled “Acknowledgement of Trust”.(see Appendix 1) It, too, is dated 1 August 1989. One clause reads:
“[Clifford Frank Kendle] stands possessed of and holds one undivided half interest in the Property as tenant in common upon trust for [Joan Wilhelmina Byrnes] absolutely “
Although it is dated 1 August 1989, I find that the Acknowledgement was made subsequent to 1 August 1989. Had it been made on the same day as the receipt, I would have expected, as I have said, that the two sums of $2,000 would have been mentioned in the body of the receipt or that there would have been no receipt other than the “Acknowledgement”. The dates on which the document were created may not matter. There is no doubt that, before the Brighton property was sold, Mr Kendle had acknowledged that he had received $18,000 from his wife.
Mrs Byrnes and Mr Kendle continued to live at Brighton until 1994 or 1995 when the unit was sold. There is no evidence of the sale price or of the value of the property at sale.
The unit was sold because Mrs Byrnes and Mr Kendle wanted to move to Murray Bridge. Mr Kendle bought a house at Rachel Street, Murray Bridge. The Memorandum of Transfer, dated 28 November 1994, shows consideration in the sum of $47,500. The house was paid for, wholly or in part, from the proceeds of the sale of the Brighton property. There is no evidence that Mrs Byrnes made any cash contribution to the purchase of Rachel Street. It was registered in Mr Kendle’s name only so that he could continue to receive the advantage of lower interest rates offered by the Defence Service Homes loan. I find that that was the only reason for the property’s being registered in Mr Kendle’s name only. Mr Kendle “transferred” his war service loan and continued to pay the mortgage payments and all the usual outgoings, namely, insurance, water, rates and taxes.
Mrs Byrnes and Mr Kendle did not move into the Rachel Street house immediately upon purchase. They renovated it extensively first. Mr Kendle did most of the manual work and paid for materials. I find that Mrs Byrnes contributed about $7,000 towards the renovations and Mr Kendle $14,000.00. They moved into that house at about Easter 1995.
In 1997, Mrs Byrnes and Mr Kendle again executed a document headed “Acknowledgement of Trust”(see Appendix 2). They did so at Mrs Byrnes’s instigation. The document was again prepared by her son. The document is signed and witnessed but not dated. It includes this clause:
“1.CFK stands possessed of and holds one undivided half interest in the New Property [Rachel Street] as tenant in common upon trust for JWB absolutely.”
Some time in 2001, Mrs Byrnes saw a house which she liked at Graetz Street, Murray Bridge. Her son Martin then offered to buy that property. The arrangement was that he would buy it but that Mrs Byrnes and Mr Kendle would live in it. They would not pay any rent. They would keep the Rachel Street property, rent it out, and use the rental moneys to supplement their incomes. While that was the arrangement, I find that Martin Byrnes did not buy the property at Graetz Street in reliance upon any undertaking by Mr Kendle that he would collect rent from the Rachel Street property. On that topic I prefer Mr Kendle’s evidence. Martin Byrnes bought the Graetz Street property in September 2001. The Memorandum of Transfer shows that there was a transfer to Mrs Byrnes of an estate of freehold for her life and to her son Martin an estate in remainder expectant upon the determination of the life estate of Mrs Byrnes. Mrs Byrnes and Mr Kendle moved into the Graetz Street property in December 2001.
Martin Byrnes, his mother and Mr Kendle had agreed that they would not use an agent for the renting out of Rachel Street. They agreed that Mr Kendle would find a tenant and would collect the rent. I find that, with Mrs Byrnes’s knowledge, Mr Kendle rented the house to his son Kym. The agreed rent was $125 per week. Kym paid rent for two weeks only. That rent was paid in cash. Mr Kendle kept no records of its having been paid. He did not use the rent for his own purposes but for the joint purposes of him and his wife.
In about April 2003, Mr Kendle drew down a further $10,000 on his Defence Service Homes loan. Of that $10,000, he lent $8,000 to his son Kym and used $2,000 for the joint purposes of him and his wife.
Kym lived in the house at Rachel Street until early 2007 without paying any further rent. For the whole of the period during which he lived there he should have been paying an average rent of $140 per week, making a total of $48,860.00. He paid only $250.00
From the time he bought the house at Rachel Street, Mr Kendle paid all the mortgage payments, the rates and taxes, water costs and insurance. During the period 1994 to 2008 (the period during which he owned the house at Rachel Street) those amounts came to:
Mortgage payments  $27,857.40
Rates  $ 3,572.65
Water  $ 2,160.00
Insurance  $ 2,650.37
$36,240.42
Mr Kendle also paid all of the payments due on the $10,000 loan. Mr Kendle’s evidence that he did most of the cooking, cleaning and laundry was not challenged. Mrs Byrnes gave evidence, which I accept, that she paid for “sustenance”.
Mrs Byrnes and Mr Kendle were both upset at Kym’s failure to pay rent. So was Martin Byrnes. On occasions the three of them discussed the problem but Mr Kendle took no action. To use his own words, he “just let the problem drift”. Nor did Mrs Byrnes take action. She chose not to do so for the sake of matrimonial harmony.
Matters came to a head in January 2007 when Mr Kendle’s daughter Cathy took action: she persuaded her father to evict Kym and he did so. Mr Kendle and Mrs Byrnes then had to decide what to do with the house. Cathy wanted to buy it but for a price which Mrs Byrnes and her son thought was less than its market value. Mrs Byrnes became concerned and discussed the matter with her son. She and Martin Byrnes decided that she should assign her interest in the house at Rachel Street to him.
On about the 21 March 2007, Mrs Byrnes left the matrimonial home. She and Mr Kendle have lived separately and apart since then. She lived first in Adelaide and then in Melbourne. Mr Kendle left Graetz Street and moved in with his daughter. I find that his grandson Reece moved into Rachel Street in July 2007 paying $100 per week rent which money was paid directly to Mr Kendle’s daughter to off-set her expenses in caring for her father.
At about the same time, Martin Byrnes prepared or caused to be prepared a “Deed of Assignment”. In that Deed, Mrs Byrnes assigned her interest in the house at Rachel Street to her son in consideration of his paying her $40,000.
Martin Byrnes was then living in London. On the morning of the 23 March 2007, he signed the Deed of Assignment in front of a witness and faxed a copy of it to his Adelaide solicitor, Mr Haarsma. According to Mrs Byrnes, she attended at Mr Haarsma’s office on the same day and signed the faxed copy which had been received there. At that time, no money was paid to her. The Deed was not stamped until much later. I accept the plaintiffs’ submission that late payment and late stamping do not affect the validity of the assignment. I find that there was a valid assignment.
According to Martin Byrnes that “copy” signed by him and by his mother was lost in Mr Haarsma’s office. Mr Haarsma did not give evidence. The fact of its loss was not discovered until early 2008 when Martin Byrnes wanted to send a copy of it to Mr Kendle’s daughter. He had to send her a copy of the fax signed only by him. I find that curious. Martin Byrnes said in evidence that, as far as he was aware, there had been available since the 23 March 2007 copies of the document signed by both him and his mother; that is, only the document bearing the original signature of his mother had been lost. If that were the case, then I would have expected Martin Byrnes to have sent to Mr Kendle’s daughter a copy bearing the copy signatures of both him and his mother. Given my decision, nothing turns on the point. It remains a curiosity.
Rachel Street was sold on 31 July 2008 for $145,000. Settlement took place on 12 September 2008. The net proceeds of sale were $124,681.99. That amount remains in Mr Kendle’s solicitor’s trust account pending the outcome of these proceedings. Mr Kendle is ready and willing, as he has been all along, to pay half of that amount to Mrs Byrnes.
Relying on his rights as an assignee, Martin Byrnes issued these proceedings on the 9 September 2008. His mother was not then a party to them. On the 29 September 2008, Mr Haarsma flew to Melbourne where Mrs Byrnes was living. In front of him, she signed a copy of the document faxed from London on the 23 March 2007 (Exhibit P3). On the same day, the 29 September 2008, Mr Byrnes paid $40,000.00 into Mr Haarsma’s trust account on account of his mother. To the date of trial, she had not drawn down that whole amount. Mrs Byrnes was joined as a plaintiff in these proceedings on the 20 October 2008. The Deed of Assignment (Exhibit P3) was stamped on Friday the 5 December 2008. The trial began the next Monday, 8 December 2008.
In her evidence, Mrs Byrnes said that her claim is for half of the net proceeds of sale. She went on to add that she wanted to see her son recover his costs. In her evidence, she made no claim for rent that should have been paid by Kym.
Was Mr Kendle a Trustee?
Mr Byrnes and his mother claim that, by the Acknowledgement of Trust of 1997, Mr Kendle became trustee of one undivided half share of the Rachel Street property for his wife. They claim that by virtue of his position as trustee Mr Kendle was under a positive duty to rent the property at a fair commercial rent and to keep and render accounts. They say that he breached his duty by failing to collect rent, by failing to keep and render accounts and by drawing down on the housing loan the sum of $10,000 and paying $8,000 of that amount to his son Kym.
To establish their claims, the plaintiffs must prove that by the Acknowledgement of Trust of 1997 Mr Kendle constituted himself as trustee of an express trust in favour of his wife and, next, that the law imposes upon such a trustee a duty to collect rent where the trust property includes real estate. In my view, the plaintiffs have not established either proposition. Before turning to my reasons for that conclusion, I mention one matter that was not canvassed at the trial.
There is no doubt that Mrs Byrnes contributed, albeit indirectly, to the purchase of the house at Rachel Street. In those circumstances there may well have been a trust, a resulting or constructive trust, which existed from the time Mr Kendle acquired Rachel Street. If so, the Acknowledgement of Trust was no more than a written acknowledgement that he was trustee of such a trust. If that were the case, there could be no suggestion that there was a duty upon him to collect rent. But the case was not argued on that basis and I shall say no more about it.
It was argued that as Mr Kendle was a “bare trustee”, he owed no duty to collect rent. I reject the submission that he was a bare trustee. Where a trustee himself has a beneficial interest in the trust property he cannot be a bare trustee. Here, Mr Kendle had a beneficial interest in one undivided half share and a further beneficial interest by way of a life interest in Mrs Byrnes’s half share. In those circumstances, the law in Australia is clear. He was not a bare trustee. (See Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281 per Gummow J.)
In my view, this case turns upon Mr Kendle’s intention. In determining whether or not an express trust has been created the court may look at evidence outside the Trust Deed to determine the intention of the alleged settlor.(1) The Acknowledgement of Trust signed in 1997 did not create an express trust of which Mrs Byrnes was a beneficiary. When Mr Kendle signed that document he intended only to acknowledge that, upon eventual sale of the property, half of the net proceeds would belong to his wife. That view is consistent with the way he viewed the arrangement and with the way in which he dealt with the property. He was asked in cross-examination if he accepted that he was a trustee for his wife. He answered:
“Yes. May I make a statement here? To me that was automatic [sic] reaction, she was my wife, we were partners so naturally half of it was hers.”
Further, by borrowing the further $10,000 against the security of the mortgage, after discussion with his wife about lending money to Kym, he again treated the property as their joint property. I have no doubt that, but for fear of his and Mrs Byrnes’s losing the advantage of a cheaper interest rate available under the Defence Service Homes loan, Mr Kendle would have registered the property in the names of both himself and his wife at the time he purchased it As he was not a trustee of an express trust, there can be no question of his owing a duty to collect rent. Mrs Byrnes’s evidence that she seeks only half of the net proceeds of sale is also consistent with this view.
(1) See B & M Property Enterprises Pty Ltd (In Liquidation) v Pettingill SCC 1V-99-1147 [2001] SASC 75 (22 March 2001) per Perry J, especially at paras. 124 to 126
Did Mr Kendle have an obligation to collect rent?
If I am wrong and Mr Kendle was a trustee, the claim still fails because he was under no duty to collect rent. On the basis that the Deed was a declaration of trust and that Mr Kendle became a trustee for his wife, the plaintiffs assert that there was such a positive duty to collect rent. The plaintiffs did not cite any authority to support that bald proposition but relied particularly on a decision of Cohen J in Howling v Kristofferson(2) That case concerned the executor of an estate. The estate property included a house. The executor permitted his son to live in the house for a period without paying rent. The plaintiff beneficiary claimed that the executor’s doing so was a breach of trust. At page 4 of the decision, His Honour said this:
“The plaintiff’s claim was based on the duty of an executor to ensure that there is no waste of estate assets. For that purpose it was said that the executor should take all proper steps to obtain a proper rent for real property which forms part of the estate. There is no doubt that an executor, like a trustee, is bound to invest money in the estate until the time of distribution in order to give the maximum benefit to the beneficiaries. See William, Mortimer & Summucks, Executors Administrators & Probate 16^th Edition at 721. On that principle it was submitted that the executor should get a reasonable return by way of rent for the assets where their sale is to be delayed. There is no apparent clear authority for this but it would seem to follow from the principle to which I have referred and it was not disputed by the defendant in these proceedings.” (my underlining)
At the bottom of page 7 of His Honour’s judgment His Honour said:
“I am accordingly of the opinion that in the circumstances, the defendant should have taken appropriate steps to ensure that rental was obtained from the premises and his failure to do so represented a breach by him.”
(2) Howling v Kristofferson (unreported) Supreme Court of New South Wales Equity Division No 2911 of 1992

As His Honour said, each case will depend upon its circumstances.
Mr Tokley, for the plaintiffs, also relied upon a decision of Justice Lander in Storti v Andrews(3) That was an application to remove as trustee a grandmother who was to manage property for her infant grandchildren after the death of the children’s mother. She, too, was in a vastly different position from Mr Kendle. Her duty to invest the proceeds of her deceased daughter’s insurance policy for the benefit of the two grandchildren plainly included a duty to earn income.
(3) Storti v Andrews [1998] SASC 6737 (2 July 1998)
Neither of the cases upon which the plaintiffs rely is authority for the bald proposition which they assert. They are no more than illustrations of situations in which the law will impose a duty to collect rent.
I reject the submission that there is a positive duty on every trustee who holds real estate on trust to collect rent. Whether or not that duty arises will depend upon the circumstances of the particular case. An executor who is trustee of an estate is in a far different position from a trustee married to a beneficiary who has contributed to the purchase of matrimonial property.
Co-operation in a breach of trust
If I am wrong and there was a positive duty upon Mr Kendle to get in rent, then his failure to do so was a breach of trust. But the beneficiary cannot complain if she co-operated in that breach.
Co-operation by a beneficiary in a breach of trust may be a bar to an action by the beneficiary for breach. Whether or not it is a bar will depend upon the facts of the particular case. See generally Spellson v George(4). In that case, Young A-JA quoted, at page 680, this passage from the judgment of Wilberforce J, as His Lordship then was in Re Pauling’s Settlement Trusts; Younghusband v Coutts & Co(5) [1962] 1 Weekly Law Reports 86:
“The result of these authorities appears to me to be that the court is to consider all the circumstances in which the concurrence of the cestui que trust was given with a view to seeing whether it is fair and equitable that, having given his concurrence, he should afterwards turn around and sue the trustees: that, subject to this, it is not necessary that he should know that what he is concurring in is a breach of trust, provided that he fully understands what he is concurring in, and that it is not necessary that he should himself have directly benefited by the breach of trust.”
(4) Spellson v George (1992) 26 New South Wales Law Reports 666, especially per Young A-AJ.
(5) Re Pauling's Settlement Trusts; Younghusband v Coutts & Co [1962] 1 Weekly Law Reports 86
The onus is on the trustee to establish the facts upon which such co-operation may be inferred. Sometimes those facts may be presumed from lapse of time (See Life Association of Scotland v Siddal(6) (1861) DE GFJ 58; 45 ER 800 at 74) In this case, not only did Mrs Byrnes sign the Acknowledgement of Trust in 1997, it was she who instigated it. She was well aware of her need to protect what she saw as her proprietary rights. Kym lived in the house for a little over six years. For all of that time, or nearly all of it, she was fully aware that he was not paying rent. Further, during those 6 years, she was present at numerous discussions with her son and her husband at which Martin Byrnes spelled out his view that Mr Kendle owed a duty to Mrs Byrnes to collect rent from Kym. She was well aware of the rights her son claimed for her but, for the sake of matrimonial harmony, she took no action. I find that, although unwillingly, she consented to her husband’s decision not to press for rent. Equity should not hear her complaints now, only after the marriage has broken down.
(6) Life Association of Scotland v Siddal (1861) DE GFJ 58; 45 ER 800 at 74
For these reasons, I would dismiss a claim by Mrs Byrnes for breach of trust. As her assignee, her son can have no better claim than she. I dismiss his claim for breach of trust.
Declaratory Relief and Final Orders
The plaintiffs seek a declaration that Mr Kendle holds one half of the net proceeds of sale of the property at Rachel Street on trust for one or other of them. Because Mr Kendle has never disputed that Mrs Byrnes was entitled to half of the proceeds of the sale, the tests for the grant of declaratory relief have not strictly been made out.(7) But the court has a wide discretion and because there has been a trial and the monies are held in a solicitor’s trust account it may be important that I make the declaration. Accordingly there will be a declaration that Mr Kendle holds half of the net proceeds of sale of the property on trust for Mr Martin Byrnes. It remains only for the solicitor to distribute those moneys equally between Mr Kendle and Martin Byrnes.
(7) Santos & Ors v American Home Assurance Company & Ors (1986) 127 LSJS 220, especially at 228.
Save for that declaration, the only order that I make is that the plaintiffs’ claims be dismissed. I will hear the parties as to costs.
Appendix 1
“ACKNOWLEDGEMENT OF TRUST
THIS ACKNOWLEDGEMENT OF TRUST is made 1^st August 1989.
BETWEEN:   CLIFFORD FRANK KENDLE of Unit 19,  120 The Esplanade, Brighton,
South Australia (“CRK”)
AND:  JOAN WILHELMINA BYRNES of 1
Marine Street, Somerton Park,
  South Australia (“JWB”)
        WHERAS:
A.CFK is the registered proprietor of Unit 19, Strata Plan 2527, 120 The Esplanade, Brighton, being the property comprised and described in Certificate of Titel Register Book Volume 4063 Folio 848 (“the property”).
B.    JWB has paid to CFK the sum of Eighteen Thousand Dollars ($18,000.00).
C.JWB and CFK have agreed that that payment would entitle JWB to a half interest as tenant in common in the Property, subject to each of JWB and CFK having a life interest during their lifetime in the half interest in the Property to which they are not entitled, if they survive the other of them.
NOW IT IS HEREBY DECLARED AND ACKNOWLEDGED as follows:
1.Subject to clause 2, CFK stands possessed of and holds one undivided half interest in the Property as tenant in common upon trust for JWB absolutely (“the JWB Interest”).
2.If JWB shall predecease CFK, then during his lifetime and while he continues to own the remaining undivided half share in the Property as tenant in common (“the CFK Interest”) CFK shall be entitled to the use and enjoyment of the JWB Interest. This clause shall entitle CFK to a life interest in the JWB Interest subject to early termination upon disposal of the CFK Interest.
3.If CFK shall predecease JWB, then during her lifetime and while she continues to own the JWB Interest JWB shall be entitled to the use and enjoyment of the CFK Interest. This clause shall entitled JWB to a life interest in the CFK Interest subject to early termination upon disposal of the JWB Interest.
IN WITNESS whereof the parties have executed this instrument as a deed.”
Appendix 2
“ACKNOWLEDGEMENT OF TRUST
THIS ACKNOWLEDGEMENT OF TRUST is made
BETWEEN   CLIFFORD FRANK KENDLE (“CFK”)
AND  JOAN WILHELMINA BYRNES (“JWB”)
Both of 10 Rachel Street, Murray Bridge,
  South Australia
RECITALS
A.By an Acknowledgement of Trust dated 1^st August 1989, the parties acknowledged that each of them was entitled to a half interest as tenant in common of the property known as Unit 19, Strata Plan 2527, 120 The Esplanade, Brighton, South Australia (“the Original Property”), and that CWK, who was the registered proprietor of the Original Property, stood possessed of an undivided half interest in the Original Property upon trust for JWB absolutely.
B.The Original Property was sold in 1994 and the proceeds applied to the purchase or further development of the property situated at 10 Rachel Street, Murray Bridge, South Australia (“the New Property”), of which CFK is now the sole registered proprietor.
C.In addition to the proceeds from the Original Property, the Parties have both contributed other monies to the purchase or further refurbishment of the New Property.
D.The Parties by this deed acknowledge that their respective entitlements to interests in the Original Property are transposed into interests in the New Property.
NOW IT IS HEREBY DECLARED AND ACKNOWLEDGED as follows:
1.Subject to clause 2, CFK stands possessed of and holds one undivided half interest in the New Property as tenant in common upon trust for JWB absolutely (“the JWB Interest”).
2.If JWB shall predecease CFK, then during CFK’s lifetime and while he continues to own the remaining undivided half share in the New Property as tenant in common (“the CFK Interest”) CFK shall be entitled to the use and enjoyment of the JWB Interest.   This clause shall entitle CFK to a life interest in the JWB Interest subject to early termination upon disposal of the CFK Interest.
3.If CWK shall predecease JWB, then during JWB’s lifetime and while she continues to own the remaining undivided half share in the JWB Interest JWB shall be entitled to the use and enjoyment of the CFK Interest. This clause shall entitle JWB to a life interest in the CFK Interest subject to early termination upon disposal of the JWB Interest.
IN WITNESS of which the parties have executed this instrument as a deed.
SIGNED SEALED AND DELIVERED )
by the said CLIFFORD FRANK            )         CLIFFORD FRANK KENDLE
KENDLE in the presence of:              )
SIGNED SEALED AND DELIVERED   )
by the said JOAN WILHELMINA        )         JOAN WILHELMINA BYRNES
BYRNES in the presence of:                 )
WITNESSED BY:  B CARANAGE
1/2 377 REGENCY RD
PROSPECT ”