Chetwynd v Rose

The appeal in *Chetwynd v Rose* concerned a dispute between beneficial co-owners of property. The primary issues before the Court of Appeal of New South Wales were whether an express trust had been declared over the property, and whether the beneficial co-owners were entitled to an adjustment in their favour in the accounts between them, specifically in relation to payments described as "rent".

The court was required to determine if a conversation that allegedly occurred 23 years prior to the hearing was sufficient evidence to establish a declaration of trust, and whether this alleged declaration was consistent with subsequent documentary evidence. Furthermore, the court had to consider whether payments made by some beneficial co-owners to a third beneficial co-owner, which secured a tax advantage for the latter, were intended to reflect the payment of an occupation fee, thereby entitling the former to an adjustment in the accounts.

The Court of Appeal found that the evidence of the alleged declaration of trust was insufficient and inconsistent with later documentary evidence, and therefore no such trust had been established. Regarding the accounting, the court determined that the payments described as "rent" were not intended to represent an occupation fee, and consequently, the beneficial co-owners were entitled to an adjustment in the accounts. The court allowed the appeal in part, setting aside certain orders and varying another, and declared that the first and second appellants were entitled to an adjustment of $47,093. The court made no order as to the costs of the appeal, directing the parties to file submissions regarding the costs of the proceedings below.