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Chase v Chase

Chase v Chase

Case [2020] NSWSC 1689 20 November 2020

Breach of Trust

Equitable Estoppel

Unjust Enrichment

Admissibility of Evidence

Trusts & Equity

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Supreme Court

New South Wales

Medium Neutral Citation: Chase v Chase [2020] NSWSC 1689
Hearing dates: 18 September 2020
Date of orders: 20 November 2020
Decision date: 20 November 2020
Jurisdiction: Equity
Before: Rein J
Decision:
See [47]

Catchwords:
EQUITY – Trusts and trustees – Evidence of trust – Requirement of writing in s 23C(1)(b) of the Conveyancing Act 1919 (NSW) – Where the plaintiff, being a member of the Chase family, sought a declaration that a deregistered company held certain real estate on trust for himself and other members of the family in equal shares (the father of the family having set up the trust structure in 1981) – Where no written document establishing the trust could be located and the plaintiff sought to rely on secondary evidence to prove the existence and terms of the missing trust deed – The secondary evidence included affidavit evidence of oral statements by the father as to the trust’s existence and its terms, as well as certain records of the company which indicated that the company held land on trust – Held: the secondary evidence was contradictory and unclear and did not amount to “clear and convincing proof” of the terms of the missing trust deed. The lack of proof as to the trust’s terms resulted in a lack of certainty as to the property the subject of the trust, the identity of the beneficiaries and whether the trust was fixed or discretionary, such that the Court was unable to make the declaration sought by the plaintiff.
EVIDENCE – Presumptions – Presumption of regularity – The plaintiff sought to rely on the presumption of regularity to overcome the absence of a written document establishing the trust – Held: the presumption of regularity is concerned with formal requirements (such as the absence of a signature on a document), not with substantive issues of the kind that needed to be determined in these proceedings.

Legislation Cited:
Conveyancing Act 1919 (NSW)
Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)
Law of Property Act 1936 (SA)
Succession Act 2006 (NSW)
Trustee Act 1925 (NSW)

Cases Cited:
A.C.N. 063 346 708 (formerly known as South Passage Pty Ltd), In the matter of [2018] NSWSC 1709
Ali v Ali [2011] NSWSC 261
Anglican Development Fund Diocese of Bathurst v Palmer [2015] NSWSC 1856; (2015) 336 ALR 372
Bokhari v Bokhari [2014] NSWSC 1474
Braema Pastoral Company Ltd v Hutchinson [1993] NSWCA 33
Burnside v Mulgrew; Re the Estate of Grabrovaz [2007] NSWSC 550
Carlow Castle Pty t/a Greenhill Capital Partners v Aztec Resources Ltd [2014] NSWCA 123
City of Burnside v Attorney-General of South Australia (1993) 61 SASR 107; (1993) 81 LGERA 167
Harris v Knight (1890) 15 PD 170
Kingham v Sutton [2002] FCA 506; (2002) 114 IR 137
Knox County v Ninth National Bank [1893] USSC 8; 147 US 91 (1893)
Lincu v Krnjulac [2014] NSWSC 532
Mack v Lenton (1993) 32 NSWLR 259
Maks v Maks (1986) 6 NSWLR 34
Marine Investment…

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 Chase v Chase

Details

AGLC: Chase v Chase [2020] NSWSC 1689
Case: [2020] NSWSC 1689
Decision Date: 20 November 2020

CaseChat Overview and Summary

The matter before the court was an action brought by the plaintiff, a member of the Chase family, seeking a declaration that a deregistered company held certain real estate on trust for himself and other family members. The plaintiff claimed that the father of the family had set up the trust structure in 1981. The central issue was whether the plaintiff could rely on secondary evidence to prove the existence and terms of the missing trust deed, given the absence of a written document meeting the requirements of section 23C(1)(b) of the Conveyancing Act 1919 (NSW).

The court found that the secondary evidence provided by the plaintiff, which included affidavit evidence of oral statements by the father and records of the company, was contradictory and unclear. This evidence did not meet the standard of "clear and convincing proof" required to establish the terms of the missing trust deed. Consequently, there was a lack of certainty regarding the property subject to the trust, the identity of the beneficiaries, and whether the trust was fixed or discretionary. This uncertainty prevented the court from making the declaration sought by the plaintiff.

The court further held that the presumption of regularity, which the plaintiff sought to rely on, was not applicable to the substantive issues at hand. The presumption of regularity pertains to formal requirements, such as the absence of a signature on a document, rather than the substantive issues that needed to be determined in these proceedings. Thus, the presumption did not assist the plaintiff in overcoming the absence of a written document establishing the trust.

The court ultimately declined to make the declaration sought by the plaintiff due to the lack of clear and convincing evidence regarding the existence and terms of the trust.

Orders