Loone v Tasmanian Trustees Ltd - [1987] TASSC 56

TASSC A52/1987

CITATION: Loone v Tasmanian Trustees Ltd [1987] TASSC 56; (1987) Tas R 146; A52/1987

PARTIES:LOONE, NANCY MARGARET
v
TASMANIAN TRUSTEES LTD

TITLE OF COURT:
JURISDICTION:  SUPREME COURT OF TASMANIA
FILE NO/S:  113/1985
DELIVERED ON:  27 October 1987
JUDGMENT OF:  Cosgrove J

Judgment Number: A52/1987
Number of paragraphs: 21

Serial No 52/1987

List “A”

File No. 113/1985

NANCY MARGARET LOONE v. TASMANIAN TRUSTEES LTD.

REASONS FOR JUDGMENT COSGROVE J

27 October 1987

The defendant company is the administrator of the Estate of Robert Cyril Jackson who died intestate on the 24 September 1983. The plaintiff seeks a declaration that two bank accounts, a car and certain lands are held by the defendant on trust for her absolutely. So far as the land is concerned she claims in the alternative that it is held for her on trust as to one half share or such share as the court may determine. Further in the alternative, she claims a declaration that the defendant holds the said lands on trust to permit her to occupy it rent free for as long as she may desire.

The obligations which the plaintiff seeks to have declared as a burden on the estate are said to arise from the fact that the deceased held the said properties on trust for the plaintiff at the time of his death. There is no claim for breach of contract. It may be said straight away that there is nothing in the evidence which could even remotely justify a declaration in respect of the two bank accounts and the car. I do not think that this was conceded during the trial but the contrary was not argued.

So far as the land is concerned, the plaintiff claims that the deceased held the subject property upon trust for her and for himself for some time prior to his death. The time at which the trust is said to have arisen is not specified and is probably immaterial. The nature of the trust is said to be “implied” or “constructive”. This description of the trust means no more than that the plaintiff disclaims any reliance upon an express trust or declaration of trust. While this disclaimer circumvents the obstacle of the absence of writing, it takes the submission of counsel for the plaintiff into controversial and perhaps uncertain territory. In an endeavour to find a guide for myself through this territory I have gone back to first principles.

A “A trust is an equitable obligation binding a person to deal with property, over which he has control, for the benefit of persons of whom he may himself be one, and any one of whom may enforce the obligation” (Underhill quoted in Jacob‘s Law of Trusts in Australia 5th edn in para 101).
B. “There are four essential elements in every form of trust: the trustee, the trust property, the beneficiary, and the personal obligation annexed to [the] property” (the insertion in brackets is mine).

There is no difficulty for 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.

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Details

Case: [1987] TASSC 56
Decision Date: 27 October 1987

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Nancy Margaret Loone versus Tasmanian Trustees Ltd. was heard by Cosgrove J. The plaintiff, Nancy Loone, sought a declaration that the defendant, the administrator of the estate of Robert Cyril Jackson, held certain properties on trust for her. The properties in question included two bank accounts, a car, and certain lands. Nancy claimed that these properties were held on trust for her by Robert at the time of his death, either absolutely or as a one-half share. Alternatively, she sought a declaration that the defendant holds the lands on trust to allow her to occupy them rent-free for as long as she desires.

The court was required to determine whether Nancy could establish that Robert held the properties on trust for her, as claimed, or if the defendant was free to administer the estate without any such trust obligations. The court had to evaluate whether the evidence supported Nancy's claims of an implied or constructive trust, which she disclaimed as not being express. Cosgrove J outlined the legal principles relevant to establishing such trusts, emphasizing the necessity of proving a transaction involving a common intention or agreement regarding the property, which would render it inequitable for Robert to deny Nancy a beneficial interest.

After reviewing the evidence presented, Cosgrove J found that Nancy's credibility was significantly undermined by her admissions of giving false instructions to her solicitor and making false statements in support of her welfare benefit application. The court also noted that Nancy's testimony was often inconsistent and lacked reliability. Despite this, Cosgrove J attempted to discern the main events of the relationship between Nancy and Robert. The court concluded that while Robert provided financial and other support to Nancy and her children, there was no evidence of a common intention or agreement that any property was to be held on trust for Nancy. The court found no basis for imposing a constructive trust on the properties in question.

Consequently, the court ruled in favor of the defendant, holding that the administrator of Robert's estate was free to administer the properties without any trust obligations to Nancy. The court also dismissed Nancy's alternative claim for a life tenancy based on estoppel for the same reasons.

Orders