Jenkins v Naidoo - [1991] TASSC 120

Serial No B6/1991
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Jenkins v Naidoo [1991] TASSC 120; B6/1991

PARTIES:  JENKINS, David Clive
  v
  NAIDOO, Sherie

FILE NO/S:  121/1991
DELIVERED ON:  1 March 1991
JUDGMENT OF:  Zeeman J

Judgment Number: B6/1991
Number of paragraphs: 23

Serial No B6/1991
List "B"
File No 121/1991

DAVID CLIVE JENKINS v SHERIE NAIDOO

REASONS FOR JUDGMENT ZEEMAN J

1 March 1991

On 29 January 1991 the applicant filed a writ whereby he sought a declaration that the respondent holds the land comprised in folio of the Register Volume 2958 Folio 26 on trust for him and an order that the respondent transfer that land to him free from all encumbrances. On the same day, the applicant filed an application seeking an order that until further order, the respondent be restrained from offering that land for sale and from selling it.

That application was supported by an affidavit of the applicant. In that affidavit he deposed to the following facts: he purchased the subject land (which is known as "Villa de L'est") in or about May 1987; consequently he became the registered proprietor of an estate in fee simple in that land on 18 May 1987; subsequently he transferred his estate in the land to the respondent; consequently she became the registered proprietor thereof on 14 September 1987; that transfer was effected in circumstances where no consideration passed from the respondent to the applicant; and at the time of the transfer to her the applicant expressly agreed that she would hold the land "for" the applicant.

Were it not for one matter, the affidavit contained material upon the basis of which it would have been proper to grant the interim injunction sought by the applicant. However, the applicant deposed in his affidavit to the fact that some time after having purchased the property, his then wife instituted divorce proceedings in the United Kingdom, he having been served with that petition whilst he was in London on business. The events which followed, and which resulted in the transfer to the respondent, were deposed to by the applicant in his affidavit in the following terms:

"11As a result of my wife's proceedings in the United Kingdom I was concerned about assets which I had acquired in Tasmania and whilst in England I was living at a home I owned 'Mutton Row', Hobscross Road, Old Harlow, Essex.
12The defendant suggested to me that I ought to transfer the Villa de L'est which I owned at Bicheno to her for the purposes of not listing it in any assets I may own in Australia. I was concerned at the time of protecting my base in Tasmania from which I was living and the Defendant said to me words 'Well, if you really trust me transfer it to me and I will hold it for you'.
13I thought it was a good idea at the time and as a result I caused Villa de L'est some time in September, 1987, to…

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 Jenkins v Naidoo

Details

AGLC: Jenkins v Naidoo [1991] TASSC 120
Case: [1991] TASSC 120
Decision Date: 1 March 1991

CaseChat Overview and Summary

In Jenkins v Naidoo, the applicant sought a declaration and order that the respondent holds and should transfer to him a property in Bicheno, Tasmania, which she currently holds. The respondent had acquired the property from the applicant under a transfer made without consideration, with the understanding that she would hold it for him. The applicant claimed that his purpose in arranging the transfer was to hide the property from his former wife, who was pursuing divorce proceedings in the United Kingdom, and thereby avoid disclosing it as part of his assets. The applicant filed an affidavit outlining these facts, which suggested he acted with the intent to deceive his former wife regarding his property holdings. The court examined whether the applicant's actions, driven by an illegal purpose, could support his claim for equitable relief.

The court addressed the legal issues of whether the applicant could establish a trust over the property and if his illegal purpose in arranging the transfer would prevent him from obtaining equitable relief. The court noted that if the transfer created a resulting trust, the applicant might not need to rely on the illegality of his purpose. However, if the transfer required the establishment of an express trust, the applicant would need to demonstrate his purpose, which was illegal. The court referenced various cases to determine whether the burden of proof regarding the accomplishment of the illegal purpose lay with the applicant or the respondent. While some cases suggested the onus was on the respondent, others implied a duty on the court to investigate the illegality regardless of the parties' arguments. The court concluded that the applicant had presented a probable prima facie case for either a resulting or an express trust, and given the absence of countervailing factors, the application for relief should be granted.

In light of the above, the court decided to grant the applicant's request for an interim order pending the outcome of the full trial, subject to further hearing on the form of the orders.

Orders