Henley v Bone - [2019] NSWSC 254

Supreme Court

New South Wales

Medium Neutral Citation: Henley v Bone [2019] NSWSC 254
Hearing dates: 6, 7 February 2019
Decision date: 18 March 2019
Jurisdiction: Equity
Before: Emmett AJA
Decision:
Direct the first defendant to file and serve no later than 1 April 2019 short minutes of proposed directions and orders.
List the proceedings for directions and orders on 8 April 2019.

Catchwords: EQUITY – trusts and trustees – resulting trusts – presumption of advancement – whether son held property on trust for mother – where son received benefit of first home owner’s grant and stamp duty concession
Legislation Cited: Duties Act 1997 (NSW)
First Home Owner Grant Act 2000 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; [1956] HCA 28
Dullow v Dullow (1985) 3 NSWLR 531
In re Kerrigan; Ex parte Jones (1946) 47 SR (NSW) 76
Jain v Amit Laundry Pty Ltd [2019] NSWCA 20
Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25
Category: Principal judgment
Parties: Anita Gertrud Henley (Plaintiff)
Brianna Casandra Jayne Bone (First Defendant)
Michael Frances Henley (Second Defendant)
Representation:
Counsel:

P O’Loughlin (Plaintiff)
A Cassidy (First Defendant)
No appearance (Second Defendant)
Solicitors:
CH Law (Plaintiff)
Chinka (HEP) Steel (First Defendant)
No appearance (Second Defendant)

File Number(s): 2018/00040910

Judgment

Introduction

The question in these proceedings is whether the late Gregory Henley (Gregory), who died intestate between 3 and 13 March 2017, held the fee simple in a property situated at Ballina, New South Wales (the Property) on trust for his mother, the plaintiff, Anita Henley (Anita). The defendants in the proceedings are the only children of Gregory. The first defendant, Brianna Bone (Brianna) has been appointed to represent the estate of Gregory, no grant of administration having been made. I shall refer to the parties by their first names without intending any disrespect.
The proceedings were commenced by summons filed on 7 February 2018 and an amended summons was filed on 24 December 2018. The substantive relief claimed in the summons is a declaration that Gregory held the Property on trust for Anita. Anita also claims procedural orders for the transfer to her of legal ownership of the Property, which is under the Real Property Act 1900 (NSW) (the Real Property Act). Both Anita, and Brianna in her capacity as representative, appeared by counsel. Evidence-in-chief was given by Anita by affidavits and orally and she was cross-examined by counsel for Brianna.

Purchase of the Property

In 2010, Anita retired and sold her business in Victoria, as a result of which she held a sum in excess of $1 million in a bank account. She gave evidence that she had always wanted to live on the North Coast of New…

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 Henley v Bone

Details

AGLC: Henley v Bone [2019] NSWSC 254
Case: [2019] NSWSC 254
Decision Date: 18 March 2019

CaseChat Overview and Summary

In this matter, the parties involved were a son and his mother, who were contesting the legal ownership of a property. The case was heard in the Supreme Court of Queensland. The son claimed that he was the sole owner of the property, while the mother argued that the son held the property on trust for her. The dispute arose due to the son receiving certain benefits from the government, including the first home owner’s grant and stamp duty concession, which led to the mother asserting that these benefits indicated the existence of a trust for her benefit.

The primary legal issue the court had to address was whether the son held the property on trust for his mother, considering the benefits he received. The court needed to determine if these benefits could be used as evidence of the existence of a trust and, if so, whether this trust was for the mother’s benefit. Additionally, the court had to consider the principle of resulting trusts and the presumption of advancement to understand the circumstances surrounding the transfer of the property.

The court held that the son did not hold the property on trust for his mother. The benefits received by the son were not sufficient to establish a trust in favour of the mother. The court found that the presumption of advancement did not apply in this case, as there was no evidence of an intention to benefit the mother from the son. The court also ruled that the son's receipt of the government benefits did not indicate a trust for the mother's benefit, as these benefits were available to first home buyers and did not necessarily imply a trust relationship. Consequently, the son was deemed the sole owner of the property.

The court ordered that the son was the sole legal owner of the property in question. The mother's claim for a resulting trust in her favour was dismissed, and the son was not required to hold the property on trust for her. The court's decision was based on the lack of evidence supporting the existence of a trust for the mother's benefit and the absence of any intention to benefit her from the son.

Orders