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Counsel v The Estate of James Albert Counsel (Dec)

Counsel v The Estate of James Albert Counsel (Dec)

Case [2007] WASC 101 4 May 2007

Express Trust

Presumption of Advancement

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CAREY & ANOR -v- THE ESTATE OF JOSHUA ANTHONY CAREY (Dec) & ANOR [2007] WASC 101

CORAM: HASLUCK J

HEARD: 26 & 27 FEBRUARY 2007

DELIVERED : 4 MAY 2007

FILE NO/S: CIV 2193 of 2005

BETWEEN: CAITLIN CAREY
KOURTNEY CAREY (Infants) by their mother and next friend JULIE KENNEDY HAYES
Plaintiffs
AND
THE ESTATE OF JOSHUA ANTHONY CAREY (Dec)
First Defendant
CASSIDY LANGLEY
Second Defendant

Catchwords:

Trusts, equities and interests - Nature of an express trust - Issue as to whether deceased's estate included certain land - Land paid for by moneys drawn from daughters' bank accounts - Issue as to intention of deceased when moneys deposited in the accounts - Whether presumption of advancement sufficient to rebut presumption of resulting trust - Finding that moneys were held subject to an express trust - Finding that deceased in breach of fiduciary duty as trustee - Tracing doctrine - Finding that land held subject to daughters' entitlements in equity

Legislation:

Wills Act 1970 (WA), s 8, s 34

Result:

Judgment for plaintiffs

Category: A

Representation:

Counsel:

Plaintiffs:     Mr A P Hershowitz
First Defendant             :     Mr B W Ashdown
Second Defendant         :     Mr T Lampropoulos

Solicitors:

Plaintiffs:     Holborn Lenhoff Massey
First Defendant             :     Arvind C Pillay
Second Defendant         :     G A Lacerenza & Associates

Case(s) referred to in judgment(s):

Bahr v Nicolay (No 2) (1988) 164 CLR 604
Calverley v Green (1984) 155 CLR 242
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Kauter v Hilton (1953) 90 CLR 86
Martin v Martin (1959) 110 CLR 297
Middleton v Pollock (1876) 2 Ch D 204
Muschinski v Dodds (1985) 160 CLR 583
Perpetual Trustees WA Ltd as Executor of the Will of Julian Bruce Goyder v Goyder, unreported; SCt of WA; (Commissioner W Martin QC); Library No 990138; 24 March 1999
Russell v Scott (1936) 55 CLR 440
Scott v Scott (1963) 109 CLR 649
Shephard v Cartwright [1955] AC 431

HASLUCK J:
The names and identifying details of all persons associated with, or concerned in, the proceedings have been changed.

Introduction

The plaintiffs in this action are the infant children of Joshua Anthony Carey who died on 8 May 2004. The plaintiffs sue by their mother and next friend Julie Kennedy Hayes. The plaintiffs seek principally a declaration that funds paid into certain bank accounts by the deceased prior to his death were held on trust for the plaintiffs.
The trial of this matter took place in conjunction with the trial of another matter, namely, CIV 1978 of 2005 in which the plaintiffs were named as the second defendants. In that action the plaintiffs were opposed to a claim that a document dated 8 May 2004, which purported to be the Will of the deceased, should be admitted to probate.
Counsel for the parties in the respective actions accepted that in the absence of any order for consolidation the two actions had to be dealt with separately.…

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 Counsel v The Estate of James Albert Counsel (Dec)

Details

AGLC: Counsel v The Estate of James Albert Counsel (Dec) [2007] WASC 101
Case: [2007] WASC 101
Decision Date: 4 MAY 2007

CaseChat Overview and Summary

Counsel v The Estate of James Albert Counsel (Dec) involved a dispute regarding the nature of an express trust and the inclusion of certain land within the deceased's estate. The dispute arose between the plaintiffs, who were the daughters of the deceased, and the estate of the deceased, James Albert Counsel. The plaintiffs sought a declaration that the land in question was held subject to their entitlements in equity.

The central legal issues before the court were whether the deceased's estate included the land in question, and if so, whether the land was held subject to an express trust for the plaintiffs. The court had to determine the intention of the deceased when the moneys were deposited into the bank accounts from which the land was purchased. Additionally, the court needed to consider whether the presumption of advancement was sufficient to rebut the presumption of a resulting trust, and whether the deceased was in breach of his fiduciary duty as a trustee.

The court found that the deceased had an express trust over the land in question, which was held for the benefit of the plaintiffs. The deceased's intention was clear from the circumstances surrounding the transactions and the relationship between the deceased and the plaintiffs. The presumption of advancement did not sufficiently rebut the presumption of a resulting trust. The court further found that the deceased had breached his fiduciary duty as a trustee by using the plaintiffs' moneys to purchase the land without their consent. Consequently, the land was held subject to the daughters' entitlements in equity. The tracing doctrine was applied to ensure that the plaintiffs' equitable interests were protected.

The final orders of the court declared that the land was held subject to the entitlements of the plaintiffs in equity. The court further directed that the estate of the deceased was to account for the value of the land to the plaintiffs. The court did not make any orders regarding costs.

Orders