Harry Bernard Thynne v Jevny Pty Limited - [2022] NSWSC 1774

Supreme Court

New South Wales

Medium Neutral Citation: Harry Bernard Thynne v Jevny Pty Limited and Anor [2022] NSWSC 1774
Hearing dates: 13 and 14 December 2022
Date of orders: 22 December 2022
Decision date: 22 December 2022
Jurisdiction: Equity
Before: Hammerschlag CJ in Eq
Decision:
The plaintiff is to withdraw caveat AS583181

Catchwords:
EQUITY – LAND LAW – SUCCESSION – Real Property Act 1900 (NSW) s 74MA – where deceased made a will and signed a memorandum of wishes which was countersigned by his wife (the second defendant) who survived him – where under the memorandum of wishes he bequeathed to her a real property on the understanding and agreement with her that she would leave it or any other property bought to replace it or the proceeds of its sale to a son of the deceased’s first marriage (the plaintiff) and a child of the marriage between her and the deceased in equal shares – where the plaintiff lodged a caveat on the property contending that she holds it in trust for the two sons – HELD – no trust created, no caveatable interest, caveat to be removed

Legislation Cited:
Real Property Act 1900 (NSW)

Cases Cited:
Barns v Barns (2003) 214 CLR 169
Birmingham v Renfrew (1937) 57 CLR 666

Category: Principal judgment
Parties: Harry Bernard Thynne – Plaintiff
Jevny Pty Limited ACN 001737864 – First Defendant
Victoria Diane Sheringham – Second Defendant
Representation:
Counsel:
S.V. Shepherd – Plaintiff
A.F. Fernon SC with M Barnes – First and Second Defendants
Solicitors:
I D Haege – Plaintiff
O’Neill McDonald Lawyers – First and Second Defendants

File Number(s): 2022/220085

JUDGMENT

Introduction

HIS HONOUR: This judgment principally concerns whether a caveat lodged by the plaintiff on a real property in Darling Point, Sydney, owned by the second defendant, is supported by a caveatable interest.
The secondary question is whether, if the caveat is supported, its removal should be ordered because its maintenance is against the balance of convenience.
Where in this judgment I refer to persons by their first names, no disrespect is intended.

Background

James Bernard Thynne (the deceased), a solicitor and one-time partner in the law firm once known as Allen Allen & Hemsley, died on 22 June 2011.
The deceased married Catherine Reid on 3 December 1982 and the plaintiff, Harry Bernard Thyne (Harry), was born to them on 9 November 1983.
The deceased and Catherine Reid divorced in 1990.
On 14 September 1996, the deceased married the second defendant, Victoria Dianne Sheringham (Victoria). Their son, Patrick Lachlan Thynne (Patrick), was born on 6 December 1996.
The deceased owned a property (Mona Road) at 26 Mona Road, Darling Point, Sydney, being Lot 1 in Strata Plan 15755.
He also had a farming business consisting of cattle grazing and a macadamia orchard conducted on a property known as Elanora on the Pacific Highway at Valla, New South Wales (in the Nambucca Heads region). The land at Elanora had…

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.

Keep reading for free

Create a free CaseChat account to read Harry Bernard Thynne v Jevny Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 1774
Decision Date: 22 December 2022

CaseChat Overview and Summary

In the case of Harry Bernard Thynne v Jevny Pty Limited, the dispute centred around the interpretation of a memorandum of wishes signed by the deceased and his wife, which outlined specific bequests of a real property. The plaintiff, a son of the deceased's first marriage, argued that the memorandum created a trust in his favour and that of his half-sibling, who was the product of his mother's marriage to the deceased. The case was heard in the Supreme Court of New South Wales. The central legal issue was whether the memorandum of wishes constituted a valid trust agreement or if it merely represented a personal wish that did not have legal enforceability.

The court examined the language of the memorandum and found that while it expressed the deceased's wishes and intentions, it did not contain the necessary legal language to create a trust. The memorandum was not witnessed and did not comply with statutory requirements under the Real Property Act 1900 (NSW). The court held that the memorandum did not create a trust, and thus, the wife was not holding the property in trust for the benefit of the plaintiff and his half-sibling. Consequently, the plaintiff's caveat, which was based on the claim of a trust, was found to be invalid. The court ordered that the caveat be removed as it was based on a misapprehension of the legal nature of the memorandum of wishes.

The court's reasoning was grounded in the statutory requirements for the creation of trusts and the principles of equity. It was determined that for a trust to be established, the intention to create one must be clearly expressed, and there must be compliance with the formalities prescribed by law. Given that the memorandum of wishes did not satisfy these requirements, no trust was created. As a result, the wife was free to dispose of the property as she saw fit, and the plaintiff's claim to a beneficial interest in the property was dismissed. The court's decision was final, and the caveat was ordered to be removed, leaving the wife with full rights over the property.

Orders