Nelson and Anor v Nelson and Ors - [1995] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S207 of 1994

B e t w e e n -
BETTIE JUNE NELSON and PETER
JOHN NELSON
Appellants
and
ELIZABETH ANNE NELSON
First Respondent
RUSSELL HODGE, STEPHEN LANCKEN, STEPHEN FULLER, SHARON BOWLES, MICHELE WORNER, ANTHONY HATZIS, trading as OWEN HODGE & SONS WITH FORREST DUFTY & CO

Second Respondents

DEANE J

DAWSON J
TOOHEY J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MAY 1995, AT 10.17 AM

___________________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR C.C. WATERSTREET, for the appellants. (instructed by Lane & Lane)

MR B.A. COLES, QC: If your Honours please, I appear with my learned friends, MR P.H. BLACKBURN‑HART and MR K. SOLARI for the first respondent. (instructed by Owen Hodge & Sons)

DEANE J: Yes, Mr Jackson?

MR JACKSON: The Court should have a copy of an outline of submissions, together with a chronology which has just been given to the Court.

DEANE J: If you could just give us a couple of moments, Mr Jackson.

MR JACKSON: Your Honours, may I move immediately to two matters: first, the terms of the legislation which give ultimately give rise to the contention of illegality and, secondly, to the findings of fact which are basic to the case. Your Honours, the legislation is adverted to by the Court of Appeal in volume 2 at page 497 ‑ there are some other provisions and I propose to take your Honours to the provisions which are relevant in the two enactments.

I use the expression, your Honours, “the two enactments” because the Defence Service Homes Act 1918 had been amended between the time when the Bent Street contract ‑ that is the contract which was in question ‑ was entered into and the time when the application for a loan was made, the application for subsidy to be more accurate, to the Defence Services Homes body.

Your Honours, the relevant provisions of Defence Services Homes Act 1918 at the relevant time commenced with section 4B(1)(b)(i) and your Honours will see that the provision was, to the following effect, that:

Where a person applies for assistance under this Act, the ‑

Director ‑

may, at any time after receipt of the application, determine ‑

and then it says ‑

if the provisions of section 19A or 23 are relevant to the application, whether the applicant, or the wife or husband of the applicant ‑ ‑ ‑

DEANE J: I still have not found it. Which should we be looking at?

MR JACKSON: I am sorry, your Honours. Your Honours should have, I think, the enactment in two forms; one being the Defence Services Homes Act 1918, prior to the 1988 amendment.

TOOHEY J: Well, we have two prints; one as at 1981 and one at 1991.

MR JACKSON: Yes, your Honour. The earlier of…

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: [1995] HCATrans 117
Decision Date

CaseChat Overview and Summary

The case of *Nelson and Anor v Nelson and Ors* concerned a dispute between a mother and her two adult children regarding the beneficial ownership of certain properties. The mother, Mrs. Nelson, had purchased several properties over the years, some with the assistance of her late husband's superannuation funds. She later transferred the legal title of these properties to her two children, the respondents, for reasons that were contested. Mrs. Nelson sought to establish that she retained a beneficial interest in these properties, alleging that the transfers were made on the understanding that the children would hold them on trust for her. The matter ultimately came before the High Court of Australia.

The High Court was required to determine whether the transfers of property from Mrs. Nelson to her children were intended to be absolute gifts or whether they were made upon trust. Specifically, the court had to consider the application of the presumption of advancement and the presumption of resulting trust in the context of a mother-child relationship and the circumstances surrounding the property transfers. The central legal issue was whether Mrs. Nelson could rebut the presumption that the transfers were gifts to her children, thereby establishing a resulting trust in her favour.

The High Court, in a majority decision, found that the presumption of advancement, which typically applies to gifts from a father to a child or a husband to a wife, did not apply in this mother-to-child context. Instead, the court applied the presumption of a resulting trust, which presumes that the transferor of property intends to retain a beneficial interest unless there is evidence to the contrary. The court examined the evidence presented by Mrs. Nelson, including her continued involvement in managing the properties and her financial contributions, to determine if she had successfully rebutted the presumption that the transfers were absolute gifts. The majority concluded that the evidence supported the existence of a resulting trust, finding that Mrs. Nelson had not intended to make outright gifts of the properties to her children.

The High Court ordered that the respondents held the properties on trust for the appellant, Mrs. Nelson, to the extent of her beneficial interest.

Orders