Gadsdon v Gadsdon

Case [2003] WASC 48


GADSDON & ORS -v- GADSDON & ANOR [2003] WASC 48



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASC 48
Case No:CIV:1916/200129-31 JANUARY 2003
Coram:PULLIN J18/03/03
31Judgment Part:1 of 1
Result: Claim allowed in part
Declaration of constructive trust
A
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Parties:GEOFFREY JOHN GADSDON
DAVID WILLIAM GADSDON
JUDITH ANN HAVERCROFT
MARGARET JUNE GADSDON
GEOFFREY JOHN GADSDON AS EXECUTOR OF THE ESTATE OF GEOFFREY FRANK GADSON

Catchwords:

Trusts
Constructive trust
Breach of trust
Real property
Torrens system
Indefeasibility of title
Fraud
Whether indefeasibility provisions apply to volunteer
Caveat
Claim for property settlement not a caveatable interest

Legislation:

Transfer of Land Act, s 68, s 82, s 134
Trustees Act 1962, s 65

Case References:

Bahr v Nicolay (No 2) (1988) 164 CLR 604
Baumgartner v Baumgartner (1987) 164 CLR 137
Clay v Clay (2001) 202 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Conlan v Registrar of Titles (2001) 24 WAR 299
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Durbin v Perpetual Trustee Co Ltd [1995] ANZ ConvR 280
Forbes v Git [1922] 1 AC 256
Foskett v McKeown [2001] 1 AC 102
Hayes v O'Sullivan (2001) 24 WAR 40
Ioppolo v Ioppolo (1978) 4 Fam LR 124
LHK Nominees Pty Ltd v Kenworthy [2002] WASCA 291
Lindsay Petroleum Company v Hurd, Farewell & Kemp (1874) LR5PC 221
Lloyd v Tedesco (2002) 25 WAR 360
Maile v Jennings [1956] VLR 45
Metcalf & Kerr v Permanent Building Society (in liq) (1993) 10 WAR 145
Permanent Building Society (in liq) v Wheeler (1992) 10 WAR 109
Tokenhouse Enterprises Pty Ltd v Commissioner of Stamp Duties (Qld) [1986] 1 Qd R 155
Truesdale v Federal Commissioner of Taxation (1970) 120 CLR 353

Allen v Snyder [1977] 2 NSWLR 685
Assets Co Ltd v Mere Roihi [1905] AC 176
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Australian Guarantee Co Ltd v Balding (1930) 43 CLR 140
Baburin v Baburin (No 2) [1991] 2 Qd R 240
Baburin v Baburin [1990] 2 Qd R 101
Baird v BCE Holdings Pty Ltd (1996) 40 NSWLR 374
Barry v Heider (1914) 19 CLR 197
Boranga v Flintoff (1997) 19 WAR 1
Breskvar v Wall (1971) 126 CLR 376
Butler v Fairclough (1917) 23 CLR 78
Calverley v Green (1984) 155 CLR 242
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
City of Belmont v Link Interiors Pty Ltd, unreported; SCt of WA (Wheeler J); Library No 990114; 12 March 1999
Composite Buyers Ltd v Soong (1995) 38 NSWLR 286
Constandinidi v Ralli [1935] Ch 427
Ex parte Goodlet & Smith Investments Pty Ltd [1983] Qd R 792
Forster v Hale (1798) 3 Ves 696; 30 ER 1226
Hide & Skin Trading v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
IAC (Finance) Pty Ltd v Courtnay (1963) 110 CLR 550
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AGLC
Gadsdon v Gadsdon [2003] WASC 48
Case
[2003] WASC 48
Decision Date

CaseChat Overview and Summary

This case involved a dispute over a home unit, Unit 29, located in Kings Park Road, Crawley. The protagonists were the first defendant, Mrs Gadsdon, who was the second wife and now the widow of Mr Gadsdon senior, and the plaintiffs, who were the children of Mr Gadsdon senior and his first wife. The plaintiffs alleged that their father, Mr Gadsdon senior, was guilty of fraud in that he instigated, and participated in, a fraudulent breach of trust by the trustee when the home unit was transferred from the trustee of the family trust to Mr Gadsdon senior. Mrs Gadsdon lodged a caveat prohibiting any transfer of the home unit by Mr Gadsdon senior. The plaintiffs commenced these proceedings, seeking declarations that Mr Gadsdon senior held the home unit on trust for the plaintiffs, and that Mrs Gadsdon had no caveatable interest in the home unit.

The court held that the plaintiffs were entitled to a declaration that Mr Gadsdon senior held the home unit on a constructive trust for the plaintiffs in accordance with the proportions specified in cl 5(a) of the Trust Deed. The court also held that Mrs Gadsdon did not have any estate or interest in the home unit. The court further held that the plaintiffs were not entitled to a declaration that the Vesting Day of the Trust was 9 March 1995. Instead, the home unit would be held by the estate on constructive trust for the persons who were the Beneficiaries before the Vesting Day. The court also held that the plaintiffs were not entitled to an order that the caveat be removed, as the second defendant would have to seek such an order. The court would hear submissions from the second defendant about this if it sought leave to counterclaim.

The court's decision was based on the following reasoning. Firstly, the court held that the plaintiffs were entitled to a declaration that Mr Gadsdon senior held the home unit on a constructive trust for the plaintiffs in accordance with the proportions specified in cl 5(a) of the Trust Deed. The court held that the transfer of the home unit from GFG to Mr Gadsdon senior was a breach of trust and that Clause 22 of the Trust Deed prohibited the transfer. The court held that Mr Gadsdon senior was guilty of fraud because he had taken active steps to bring about the transfer of the land to himself, without consideration, when he had been advised about the content of Clause 22 and given legal advice to "shelve" the proposal unless he obtained counsel's opinion approving the proposed transaction, which advice he ignored.

Secondly, the court held that Mrs Gadsdon did not have any estate or interest in the home unit. The court held that there was no foundation for the caveat, and the plaintiffs were entitled to the declaration they sought. The court held that the caveat was not a proper foundation for sustaining a caveat, as it did not show that the caveator had "an estate or interest" in the land. The court also held that there was no evidence of any joint endeavour between Mrs Gadsdon and Mr Gadsdon senior, and therefore, there was no basis for a constructive trust in favour of Mrs Gadsdon.

Thirdly, the court held that the plaintiffs were not entitled to a declaration that the Vesting Day of the Trust was 9 March 1995. The court held that the resolution passed on 9 March 1995, which terminated the Trust, could not be construed as being "the Vesting Day". The court held that GFG, through its directors, did not think there was any property left to be dealt with in accordance with cl 5(a), and as a result, it did not appoint a Vesting Day earlier than 30 June 2052. The court held that the home unit would be held by the estate on constructive trust for the persons who were the Beneficiaries before the Vesting Day.

Lastly, the court held that the plaintiffs were not entitled to an order that the caveat be removed, as the second defendant would have to seek such an order. The court would hear submissions from the second defendant about this if it sought leave to counterclaim. The court held that the plaintiffs had no standing under s 138 of the Transfer of Land Act to apply for an order that the caveat be removed. The court held that the second defendant would have to seek leave to counterclaim under s 138 of the Transfer of Land Act for an order removing the caveat lodged by Mrs Gadsdon.

In conclusion, the court held that the plaintiffs were entitled to a declaration that Mr Gadsdon senior held the home unit on a constructive trust for the plaintiffs in accordance with the proportions specified in cl 5(a) of the Trust Deed. The court also held that Mrs Gadsdon did not have any estate or interest in the home unit. The court held that the plaintiffs were not entitled to a declaration that the Vesting Day of the Trust was 9 March 1995. Instead, the home unit would be held by the estate on constructive trust for the persons who were the Beneficiaries before the Vesting Day. The court held that the plaintiffs were not entitled to an order that the caveat be removed, as the second defendant would have to seek such an order. The court would hear submissions from the second defendant about this if it sought leave to counterclaim.

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