Reported Decision:
52 NSWLR 492
New South Wales
Court of Appeal
CITATION: Damberg v Damberg & Ors [2001] NSWCA 87 FILE NUMBER(S): CA 40636/99 HEARING DATE(S): 3 April 2001 JUDGMENT DATE:
25 May 2001PARTIES :
Wilfried Robert Damberg (Appellant)
Bruenhild Damberg (First Respondent)
Oliver Damberg (Second Respondent)
Nicole Damberg (Third Respondent)JUDGMENT OF: Spigelman CJ at 1; Sheller JA at 2; Heydon JA at 3
LOWER COURT JURISDICTION : Family Court of Australia LOWER COURT
FILE NUMBER(S) :PA 4703/98 LOWER COURT
JUDICIAL OFFICER :Purdy J
COUNSEL: Mr P L G Brereton SC (Appellant)
Mr L P Robberds QC/Mr J A Trebeck (Respondents)SOLICITORS: Campbell Paton & Taylor (Appellant)
Wilson Fardell & Moore (First Respondent)
Garden & Montgomerie (Second and Third Respondents)CATCHWORDS: Equity - Implied Trusts - Resulting trusts - Whether rebuttal of presumption of advancement from parent to child of equitable interest in property in addition to legal title - Whether parent possessed "definite intention" to retain beneficial interest - Application of general law of evidence to determine whether "definite intention" proved - Conflict of Laws - Breach of foreign law - Whether Australian Courts will prevent party from enforcing in Australia a resulting trust created in a foreign jurisdiction for a purpose that was "illegal" or "unlawful" in that foreign jurisdiction - Identification of "illegal" or "unlawful" purpose - Necessity to examine provisions of foreign legislation - Ascertainment of "policy" of legislation - Where foreign jurisdiction is Germany - Where foreign law relates to capital gains tax avoidance or evasion - Conflict of Laws - Presumption of identity of unproved foreign law and the lex fori - Whether such presumption should be made - Where foreign jurisdiction is Germany - Where relevant unproved foreign law is likely to be statute-based - Where relevant unproved foreign law relates to capital gains tax avoidance and evasion - Where taxation law is not an area of law that is based on broad principles that can be assumed to be part of any given legal system - D CASES CITED: See attached list DECISION: See para 200
Agbaba v Witter (1977) 51 ALJR 503
Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238
(1969) 90 WN (Pt 1) (NSW) 44
Bowden Bros & Co v Imperial Marine and Transport Insurance Co (1905) 5 SR (NSW) 614
[1980] 1 NSWLR 496
Bryson v Bryant (1992) 29 NSWLR 188
Bumper Development Corp Ltd v Commissioner of Police of the Metropolis [1991] 1 WLR 1362
- Calverley v Green (1984) 155 CLR 242
Casey v Casey [1949] P 420
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Chilton v Corporation of London (1878) 7 Ch D 735
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
Davies v The National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 397
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- AGLC
- Damberg v Damberg [2001] NSWCA 87
- Case
- [2001] NSWCA 87
- Decision Date
CaseChat Overview and Summary
The case of *Damberg v Damberg* concerned a dispute between family members regarding beneficial ownership of property. The primary issue revolved around whether a parent, who had transferred legal title of property to a child, retained an equitable interest in that property. This involved considering the presumption of advancement and whether it could be rebutted by evidence of the parent's "definite intention" to retain a beneficial interest. The court also had to determine whether Australian courts would enforce a resulting trust created in a foreign jurisdiction (Germany) if the purpose for which it was created was considered illegal or unlawful under German law, particularly in relation to capital gains tax avoidance or evasion.
The legal issues before the court were twofold. Firstly, it was necessary to ascertain whether the presumption of advancement, which typically presumes a gift from a parent to a child, had been rebutted. This required an examination of the evidence to determine if the parent had a "definite intention" to retain a beneficial interest in the property. Secondly, the court had to consider the conflict of laws aspect: whether an Australian court should refuse to recognise or enforce a resulting trust established under German law if that trust was created for a purpose deemed unlawful in Germany, specifically concerning capital gains tax avoidance or evasion. This also raised the question of whether the presumption of identity between unproved foreign law and the *lex fori* (the law of the forum) should apply, especially when the relevant foreign law was likely statutory and related to complex taxation matters.
The court's reasoning involved a detailed analysis of the evidence presented to establish the parent's intention. It applied general principles of evidence to determine whether the presumption of advancement was rebutted. Regarding the conflict of laws issue, the court considered the principles governing the enforcement of foreign trusts and the circumstances under which an Australian court might decline to enforce a trust due to its unlawful purpose under foreign law. This required an examination of the specific provisions and the underlying policy of the relevant German legislation concerning capital gains tax. The court also grappled with the presumption of identity of foreign law, noting that taxation law, particularly concerning avoidance and evasion, is not typically based on broad principles that can be assumed to be common across legal systems, making the application of this presumption problematic.
The court ultimately made orders regarding the beneficial ownership of the property and the enforceability of the resulting trust, the specifics of which are detailed in paragraph 200 of the judgment.
The legal issues before the court were twofold. Firstly, it was necessary to ascertain whether the presumption of advancement, which typically presumes a gift from a parent to a child, had been rebutted. This required an examination of the evidence to determine if the parent had a "definite intention" to retain a beneficial interest in the property. Secondly, the court had to consider the conflict of laws aspect: whether an Australian court should refuse to recognise or enforce a resulting trust established under German law if that trust was created for a purpose deemed unlawful in Germany, specifically concerning capital gains tax avoidance or evasion. This also raised the question of whether the presumption of identity between unproved foreign law and the *lex fori* (the law of the forum) should apply, especially when the relevant foreign law was likely statutory and related to complex taxation matters.
The court's reasoning involved a detailed analysis of the evidence presented to establish the parent's intention. It applied general principles of evidence to determine whether the presumption of advancement was rebutted. Regarding the conflict of laws issue, the court considered the principles governing the enforcement of foreign trusts and the circumstances under which an Australian court might decline to enforce a trust due to its unlawful purpose under foreign law. This required an examination of the specific provisions and the underlying policy of the relevant German legislation concerning capital gains tax. The court also grappled with the presumption of identity of foreign law, noting that taxation law, particularly concerning avoidance and evasion, is not typically based on broad principles that can be assumed to be common across legal systems, making the application of this presumption problematic.
The court ultimately made orders regarding the beneficial ownership of the property and the enforceability of the resulting trust, the specifics of which are detailed in paragraph 200 of the judgment.
Orders
Orders of the court
See para 200
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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