Macpherson & Anor v Macpherson - [1991] HCATrans 67

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MS0 of 1990
B e t w e e n -
PETER ALEXANDER GORDON
MACPHERSON and RUTH ANNE
MACPHERSON

Appliants

and
JOHN MALCOLM CAMPBELL MACPHERSON and LEONIE MACPHERSON

Respondents

Application for special
leave to appeal

BRENNAN J
DAWSON J

Macpherson

8/3/91

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 MARCH 1991, AT 12.38 PM

MR B.J. SHAW, QC: If the Court pleases, I appear with my

learned friend, MR P.W. ALMOND, for the applicant.
(instructed by Messrs Hargraves)

MR P.G. NASH, QC: If the Court pleases, I appear with my

learned friend, MR P.D. ELLIOTT, for the
respondents. (instructed by T.C. Naughtin & Co).

MR SHAW:

Might I hand up to the Court some copies of a

report that I am going to refer to? It is
Muschinski v Dodds.
If the Court pleases, this case arose, in substance, out of a dispute between two brothers
about some farming land. It arose in circumstances
in which their father had owned some land which he
farmed and, on his death, he left it to his widow
for life and divided between his four children of
whom the two brothers were two by way of remainder.
The two brothers thereafter conducted farming
activities on the farm and entered into partnership
later, including their wives.
In the course of their activities, land was

purchased in the name of, at first, the elder
brother and, later, the younger brother, in
circumstances in which, in our submission, the
facts show that contributions to the purchase price
in substance came equally from them and in
circumstances in which it was clear that it was
intended that at the end of the activities of the
partnership each of them would be entitled to an
equal amount of land. But, in fact, before that
happened the partnership was brought to an end by
reason of disagreements between the brothers and
the question arose about entitlement to the land,
some of which stood in the name of the elder
brother and some of which stood in the name of the
younger brother.
At first instance, it was held that the land

was held on trust equally between the two brothers. In-fact, the wives were brought into it but I think

they may be left to one side for the moment. And
the basis upon which His Honour held that at first
instance appears at page 15 and the following of
the application book. At page 15, His Honour the
trial judge held that there was an implied trust.
That is set out at the bottom of that page, and

there is a reference to a number of cases. And at
the top of the next page His Honour says, at
line 4, that he finds:
that there was a common intention and
understanding as to their equal beneficial

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 Macpherson & Anor v Macpherson

Details

AGLC: Macpherson & Anor v Macpherson [1991] HCATrans 67
Case: [1991] HCATrans 67
Decision Date

CaseChat Overview and Summary

The parties to this proceeding before the High Court of Australia were Peter Alexander Gordon Macpherson and Ruth Anne Macpherson (applicants), and John Malcolm Campbell Macpherson and Leonie Macpherson (respondents). The dispute concerned the beneficial ownership of farming land, which had been purchased in the names of the two brothers. The land was originally part of a larger estate left by the brothers' father to their mother for life, with the remainder to be divided among his four children, including the two brothers. The brothers subsequently conducted farming activities on the land, initially together and later as a partnership that included their wives.

The central legal issue before the High Court was whether the farming land, some of which was registered in the name of the elder brother and some in the name of the younger brother, was held on trust equally between the two brothers, as determined by the trial judge. The trial judge had found an implied trust based on a common intention and understanding of equal beneficial interest in the properties. However, the High Court questioned this finding, particularly in light of the fact that the brothers had conducted farming activities and entered into a partnership concerning the land.

During the hearing, the Court raised the point that if the land were partnership property, there would be no necessity to establish trusts or equities. The applicants' counsel argued that the parties' conduct strongly indicated an intention to act equally between them, and that principles derived from cases such as *Harvey v Harvey* supported the conclusion that the land was partnership property. The Court noted that the partnership had made payments towards the land, further suggesting it was partnership property.

Orders