Byrnes v Kendle

The case of *Byrnes v Kendle* involved an appeal to the High Court of Australia by Mrs Byrnes and Mr Martin Byrnes (her son) against Mr Kendle. The dispute concerned the nature of a trust allegedly created by Mr Kendle in a deed concerning a jointly owned property, and whether Mr Kendle, as trustee, had breached his duties by failing to collect rent from a portion of that property.

The High Court was required to determine whether Mr Kendle, by executing the 1989 Deed, had effectively declared himself a trustee of one half of the Brighton property for the benefit of Mrs Byrnes. Further, the court had to consider whether Mr Kendle had breached his trustee duties by failing to collect rent from the property, and if Mrs Byrnes had, through her inaction and knowledge, consented to or acquiesced in such a breach. Finally, the court needed to ascertain the extent to which Mr Kendle was entitled to set off outgoings and improvements made to the property in the taking of accounts.

The court reasoned that the language of the 1989 Deed, specifically the phrase "upon trust," clearly indicated Mr Kendle's intention to create an express trust. The deed established a beneficial interest for Mrs Byrnes in one half of the property, with Mr Kendle holding that interest as trustee. The court found that Mr Kendle's failure to collect rent constituted a breach of his duty as trustee. However, the court also considered the context of the matrimonial relationship and the lack of evidence of reliance by Mr Kendle on Mrs Byrnes' inaction, concluding that there was no effective acquiescence or consent on her part to the breach. The court allowed the appeal, setting aside previous orders and directing that a specific sum be paid to Mr Martin Byrnes on behalf of Mrs Byrnes from funds held in trust, with the balance to be paid to Mr Kendle.