Crafter & Ors and Crafter & Ors

FAMILY COURT OF AUSTRALIA

CRAFTER AND ORS & CRAFTER AND ORS [2012] FamCAFC 199

FAMILY LAW – APPEAL – TRUSTS – Where in considering whether there was an express trust or resulting trust it was asserted the trial Judge did not expressly set out what was required for such a trust to be established – The trial Judge did consider what was required for the existence of an express trust and counsel on appeal conceded a resulting trust could not exist – Where the trial Judge found there was no express trust or constructive trust – The evidence supports the finding that there was no express trust and the finding that there was no constructive trust was open to the trial Judge.

FAMILY LAW – APPEAL – OTHER FINDINGS – Where the trial Judge made other findings which were challenged – The findings made by the trial Judge were open to him on the evidence.

Family Law Act 1975 (Cth) s 78
Real Property Act 1886 (SA) s 71(e)

Bahr v Nicholay [No 2] (1988) 164 CLR 604
Byrnes v Kendle (2011) 243 CLR 253
Devries v Australian National Railways Commission (1993) 177 CLR 472
Kauter v Hilton (1953) 90 CLR 86
Nelson v Nelson  (1995) 184 CLR 538
SSHontestroom v SS Sagaporack [1927] AC 37
Trident General Insurance Co Limited v McNiece Bros Proprietary Limited (1988) 165 CLR 107

FIRST APPELLANT: M Crafter
(by her personal representatives)

SECOND APPELLANT: W Crafter

THIRD APPELLANT: D Pty Ltd

FOURTH APPELLANT: PJ Crafter

FIRST RESPONDENT: PA Crafter

SECOND RESPONDENT: B Crafter

THIRD RESPONDENT: N Pty Ltd

FILE NUMBER: ADC 142 of 2007

APPEAL NUMBER: SOA 27 of 2011

DATE DELIVERED: 4 December 2012

PLACE DELIVERED: Perth

PLACE HEARD: Adelaide

JUDGMENT OF: Bryant CJ, Finn & Thackray JJ

HEARING DATE: 14 & 15 May 2012

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 3 March 2011

LOWER COURT MNC: [2011] FamCA 122

REPRESENTATION

COUNSEL FOR THE APPELLANTS: Mr Stevens

SOLICITOR FOR THE APPELLANTS: Stokes Legal

COUNSEL FOR THE FIRST RESPONDENT: Mr Tredrea

SOLICITOR FOR THE FIRST RESPONDENT: Jo-Anne N Milen and Associates

COUNSEL FOR THE SECOND RESPONDENT: No appearance

SOLICITOR FOR THE SECOND RESPONDENT: Lindleys Solicitors

COUNSEL FOR THE THIRD RESPONDENT: No appearance

SOLICITOR FOR THE THIRD RESPONDENT: Lindleys Solicitors

Orders

1. The appeal be dismissed.

2. The second, third and fourth appellants pay the first respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crafter & Crafter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 27 of 2011
File Number: ADC 142 of 2007

M Crafter (by her personal representatives)

First Appellant

And

W Crafter

Second Appellant

And

D Pty Ltd

Third Appellant

And

PJ Crafter

Fourth Appellant

And

PA Crafter

First Respondent