Garrett v L'Estrange - [1911] HCA 67

ISABELLA GARRETT

GUY STUART L'ESTRANGE

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Crown Lands-Conditional murchase-Agreement by husband to hold conditional

purchase in trust for wife-Person other than the applicant-Unity of person between husband and wife-Crown Lands Act 1884 (N.S.W.), 48 Vict. No. 18, SYDNEY,

sec. 121-Crown Lands Act 1889 (N.S. W.), 53 Vict. No. 21, 8. 47-Trust and Dec. 6, 7, 18.

Trustee-Declaration of trust-Part performance-Resulting trust-Statute of Frauds, 29 Car. II. c. 3, sec. 7.

The wife of an applicant for a conditional purchase is " a person other than the applicant" within the meaning of sec. 121 of the Crown Lands Act 1884. By that section, therefore, a husband is prohibited from taking up land in

To constitute a declaration of trust of land there must be an intention on the part of the person who makes the declaration to divest himself of the beneficial interest, and constitute himself a trustee of the land for the other party.

A husband who had quarrelled with his wife wrote a letter to her at a time when she was not living with him in which he said, in reference to a condi- tional purchase: "I hope you will come home and see to your own home while I am away, as it is yours not mine. The residence is not done on it yet, so it will not do for both of us to be out of it," and in another passage, " come back to your dear home." Held, that this was not a declaration of trust by the husband in favour of the wife.

Possession to constitute part performance under the Statute of Frauds must be unequivocally attributable to independent ownership by the person claiming the land.

13 CLR 431

There cannot be a resulting trust contrary to the provisions of a Statute. Decision of A. H. Simpson Ch. J. in Eq., 28 W.N. (N..S.W), 112, affirmed.

APPEAL from the Supreme Court of New South Wales.

The plaintiff brought a suit against the defendant, the executor L'ESTRANGE. of her deceased husband, claiming that she was entitled to a certain additional conditional purchase which had been taken up by her husband during his lifetime.

The suit was heard by A. H. Simpson Ch. J. in Eq., who held that the plaintiff was not SO entitled 1.

From this decision the plaintiff now appealed to the High Court upon the grounds (1) that His Honor was in error in holding that an agreement to acquire and hold the said additional conditional purchase for the plaintiff, or under a promise to transfer to the plaintiff, was inoperative under the provisions of the Crown Lands Acts; (2) that His Honor was in error in holding that the Statute of Frauds was a defence to the suit; (3) that His Honor should have held that, after the application for the additional conditional purchase had been confirmed, it was agreed between the plaintiff and the…

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 Garrett v L'Estrange

Details

AGLC: Garrett v L'Estrange [1911] HCA 67
Case: [1911] HCA 67
Decision Date: 18 December 1911

CaseChat Overview and Summary

The appellant, the widow of Joseph Garrett, appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales. The appellant sought to establish her entitlement to an additional conditional purchase taken up by her deceased husband. The core of the dispute concerned whether the husband had acquired and held this land as a trustee for his wife, or if a resulting trust had arisen in her favour.

The legal issues before the High Court were whether an agreement by a husband to hold a conditional purchase for his wife was rendered inoperative by the provisions of the Crown Lands Acts, whether the Statute of Frauds barred the claim in the absence of sufficient writing, whether a declaration of trust had been effectively made by the husband, and whether a resulting trust arose in favour of the wife. The appellant argued that the wife was not a "person other than the applicant" for the purposes of the Crown Lands Act, that a trust was created after the application was confirmed, and that improvements made by the wife constituted part performance, or alternatively, that her money funded the purchase, giving rise to a resulting trust.

The High Court affirmed the decision of the Supreme Court, holding that the husband's acquisition of the additional conditional purchase for his wife was prohibited by section 121 of the Crown Lands Act 1884 and section 47 of the Crown Lands Act 1889, as a wife is considered a "person other than the applicant" and married women were generally restricted from conditionally purchasing Crown land. The Court found that the husband's letter to his wife, relied upon as a declaration of trust, was not sufficiently definite and lacked the intention to divest himself of beneficial ownership, particularly given the context of marital discord and the fact that the residence was not yet established on the land in question. Furthermore, the Court held that possession by the wife was not unequivocally attributable to independent ownership, thus failing the test for part performance under the Statute of Frauds. Finally, the Court ruled that a resulting trust could not arise contrary to the express provisions of a statute, and as the initial deposit was paid with the husband's money, no such trust was established. The appeal was dismissed.

Orders