LADY MARY NOLAN (both in her personal capacity and as Executrix of the Estate of
SIR SIDNEY NOLAN, deceased) and Ors
Respondents
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JUDGES:
ORMISTON, CHERNOV and EAMES, JJ.A.
WHERE HELD:
MELBOURNE
DATES OF HEARING:
13, 14, 15, 16 and 23 October 2003
DATE OF JUDGMENT:
10 June 2004
MEDIUM NEUTRAL CITATION:
[2004] VSCA 109
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Limitation of actions – Appellant’s claim to paintings as beneficiary under constructive trust – Whether paintings trust property – Whether claim statute barred – Limitation period relating to trust property – Whether alleged donor of paintings Constructive Trustee as Executor or trustee de son tort - Constructive trust – Institutional or remedial – Executor de son tort – Trustee de son tort – Principles applicable – Whether executor de son tort is “trustee” or “personal representative” for the purposes of the Limitation Act 1980 (U.K.) – Whether appellant/claimant is “beneficiary under a trust” for the purposes of the Limitation Act 1980 (U.K.) – Limitation Act 1980 (U.K.) ss. 3(1), 21(1)(b), 38(1) – Administration of Estates Act 1925 (U.K.) s.28 – Administration and Probate Act 1958 (Vic.) s.33(1).
Evidence – Gifts of chattels inter vivos – Intention to make gift – Circumstantial evidence – Proper approach to evaluating circumstantial evidence.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr P.N. Vickery, Q.C. Mr M.J. Corrigan
Simon Parsons & Co. Solicitors
For the 1st and 2nd Respondents
Mr M.A. Dreyfus, Q.C. Mr M.A. Robins
Nathan Kuperholz
No appearance for 3rd, 4th and 5th Respondents
ORMISTON, J.A.:
This appeal arises out of a claim by Mosca Gai Jinx Margaret Ellery Nolan (whom I shall call “Jinx Nolan”) that she is entitled as owner to possession of three paintings by her late father, Sir Sidney Nolan (whom I shall call “Sidney Nolan”), “Hare in Trap”, “Royal Hotel” and “Italian Crucifix”, which are alleged to have been given by Sidney Nolan to his first wife Cynthia Nolan, the appellant’s mother, before her death in 1976. The appellant alleges that she was entitled to the paintings as effectively the sole beneficiary under her mother’s English and Australian wills, although in strictness she is only the sole life tenant, with the estate passing to various charities on her death. The paintings were said to have been converted by Sidney Nolan shortly after his first wife’s death and have never been delivered either to the executors and trustees of Cynthia Nolan’s English or Australian estates or to the appellant, but have passed to the first-named respondent[1], Lady Nolan, the second wife and widow of Sidney Nolan, as executrix and effectively the sole beneficiary of Sidney Nolan’s last will and estate. The claim was brought by way of writ dated 13 September 2001, and was dismissed by the learned trial judge last year in a detailed and complex judgment[2] primarily on the ground that the evidence led at 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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Nolan v Nolan [2004] VSCA 109
Case
[2004] VSCA 109
Decision Date
CaseChat Overview and Summary
In the case of Nolan v Nolan, the appellant, a beneficiary under a trust, sought to recover paintings which were allegedly gifted to the respondent, the executor of the estate, as trustee de son tort. The appellant argued that the respondent, as trustee de son tort, held the paintings on trust for the appellant. The respondent countered that the appellant's claim was statute barred under the Limitation Act 1980 (U.K.). The court had to determine whether the paintings were trust property, whether the appellant's claim was statute barred, and whether the respondent, as executor de son tort, was a trustee for the purposes of the Limitation Act 1980 (U.K.).
The court considered the principles applicable to institutional and remedial constructive trusts, and whether the respondent, as executor de son tort, was a trustee or personal representative for the purposes of the Limitation Act 1980 (U.K.). The court also had to determine whether the appellant was a beneficiary under a trust for the purposes of the Limitation Act 1980 (U.K.). The court examined the evidence of the intention to make a gift of the paintings and the proper approach to evaluating circumstantial evidence.
The court found that the respondent, as executor de son tort, was a trustee for the purposes of the Limitation Act 1980 (U.K.) and that the appellant was a beneficiary under a trust for the purposes of the Limitation Act 1980 (U.K.). The court held that the paintings were trust property and that the appellant's claim was not statute barred. The court also held that the evidence of the intention to make a gift of the paintings was sufficient to establish the appellant's claim. The respondent's appeal was dismissed.
The court ordered the respondent to return the paintings to the appellant and to pay the appellant's costs of the appeal. The court also held that the respondent, as executor de son tort, was liable for the appellant's costs of the appeal.