In the matter of Tresdar Pty Ltd

Tresdar Pty Ltd was a party in a case before the Supreme Court of New South Wales, which involved a dispute regarding the existence and validity of an express trust. The respondent, who claimed to be the successor in title to the original beneficiary of the trust, sought to enforce the trust against the trustee. The primary issue for the court was whether there was sufficient evidence to establish that an express trust was created by the settlor. This required consideration of the intention of the parties and the admissibility of subsequent conduct and documents that might indicate the existence of the trust.

The court examined whether the conduct of the parties, which was consistent with the existence of a trust, could be used as evidence to establish the trust's creation. It found that the conduct of the parties, although subsequent to the alleged declaration of trust, was relevant in the absence of direct evidence of the words spoken by the settlor. The court also addressed the admissibility of hearsay evidence under the Evidence Act 1995 (NSW), specifically considering documents that contained representations made to their authors. The court admitted these documents as evidence of the representations they contained, applying section 63(2) of the Act.

Regarding the standard of proof, the court noted that while the respondent did not need to prove fraud to establish the trust, the evidence had to be sufficient to satisfy the civil standard of proof on the balance of probabilities. The court applied section 140 of the Evidence Act 1995 (NSW) to determine the sufficiency of the evidence presented. The court also considered the presumptions regarding share certificates and company books as prima facie evidence of title, which were, however, displaced by the evidence in this case.

The court ultimately found in favour of the respondent, establishing the existence of the trust and ordering the trustee to account to the respondent as the successor in title to the original beneficiary. The court's decision hinged on the consistent conduct of the parties and the admissibility of certain documents, which collectively provided sufficient evidence of the trust's creation.