Duggan v White

The dispute in Duggan v White was between Duggan and White, with Duggan seeking to enforce a secret trust over certain property. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether a bequest of property to the plaintiffs in a will was an absolute gift to them, or if there was an explicit understanding that the gift was given on particular terms, thereby creating a secret trust. Additionally, the court had to determine if the trustees were entitled to costs incurred in seeking judicial advice under the Trustee Act 1925 (NSW), section 59(4), when the initial application was not for judicial advice.

The court examined the nature of the bequest in the will and the circumstances surrounding it. It concluded that there was no explicit understanding that the gift to the plaintiffs was subject to particular terms. Therefore, no secret trust arose. Furthermore, the court considered the trustees' application for costs under the Trustee Act 1925 (NSW), section 59(4), and found that the initial application was not for judicial advice. Since the residual beneficiary of the estate was not a party to the proceedings, the court determined that it was not appropriate to make a costs order that would affect the residual beneficiary by foreclosing the question of indemnity.

The Supreme Court of New South Wales ruled that the bequest to the plaintiffs was an absolute gift and that the trustees were not entitled to the costs incurred in seeking judicial advice. The court emphasised that the absence of an explicit understanding regarding the terms of the gift meant that no secret trust was established. The court also noted that the costs order could not be made as it would have the effect of prejudicing the residual beneficiary, who was not a party to the proceedings. The final orders of the court reflected these findings, ensuring that the plaintiffs' entitlement to the property was absolute, and the trustees' costs were not awarded due to the circumstances of the case.