Legal Research
Cases
Pascoe v Boensch

Pascoe v Boensch

Case [2007] FMCA 2038 6 December 2007

Jurisdiction

Costs

Interlocutory Orders

Civil Litigation & Procedure

Type to search within this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v BOENSCH & ANOR (No.6)

[2007] FMCA 2038

BANKRUPTCY – Declaration of trust – where equitable property – whether principles in Milroy v Lord apply – whether imperfect gift – whether Jones v Dunkel inference.

Bankruptcy Act 1966, ss.120, 121
Conveyancing Act 1919, s.23C(1)(b)

Dalton v Ellis; Estate of Bristow (2005) 65 NSWLR 134
Comptroller of Stamps (Victoria) v Howard-Smith (1936) 54 CLR 614
Norman v FCT (1963) 109 CLR 9
Milroy v Lord [1861-73] All ER Rep 783
Corin v Patton (1990) 92 ALR 1
Marchesi v Apostolou [2007] FCA 986
Jones v Dunkel (1959) 101 CLR 298
State Bank of New South Wales v Brown [2001] NSWCA 223

Jacobs’ Law of Trusts in Australia (7^th ed, Heydon and Leeming, 2006)
Equity: Doctrines and Remedies (4^th ed, Meagher, Gummow and Lehane, Butterworths, 2002)

Applicant:

SCOTT DARREN PASCOE

First Respondent:

FRANZ BOENSCH

Second Respondent:

SABINE BOENSCH

File Number:

SYG 1995 of 2006

Judgment of:

Raphael FM

Hearing dates:

20 & 21 November 2007

Date of Last Submission:

20 & 21 November 2007

Delivered at:

Sydney

Delivered on:

6 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr J Johnson

Solicitors for the Applicant:

McLean & Associates

Counsel for the Respondent:

Mr M Heath

Solicitors for the Respondent:

Wright Commercial Lawyers

Solicitors for the Second Respondent:

Shanahan Tudhope

ORDERS

The answer to the preliminary question outlined in the orders of 6 September 2007 is “Yes”.
Applicant to pay the first respondent’s costs of the preliminary question.
Parties to contact my associate to obtain a date for further directions.
The second respondent and the trustee may make written submissions on the second respondent’s costs within 7 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1995 of 2006

SCOTT DARREN PASCOE

Applicant

And

FRANZ BOENSCH

First Respondent

SABINE BOENSCH

Second Respondent

REASONS FOR JUDGMENT

These long-running proceedings have been brought by the Bankruptcy Trustee of Mr Franz Boensch for the purposes of having transferred to him the legal title in property at 255 Victoria Road, Rydalmere, New South Wales, currently held by the respondents as joint tenants under Volume 7366 Folio 5 in the certificate of title. Although this describes the legal ownership of the land, the fact is that the equitable ownership of the land is held by Mr Boensch solely. Pursuant to orders of the Family Court Mr Boensch paid Mrs Boensch $50,000.00, and Mrs Boensch provided Mr Boensch with a transfer free of encumbrances of her interest in the property on 9 June 1999. That transfer has never been registered. Mr Boensch claims that he holds the land as trustee for his two children pursuant to a Memorandum of Trust in the terms set out below executed on 23 August 1999:
“This is a memorandum of trust created for the benefit of Boensch family with the most important purpose to provide secure means of support to the children of the marriage Dominic Boensch and Stefanie Boensch, after 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.

Continue reading Pascoe v Boensch

Details

AGLC: Pascoe v Boensch [2007] FMCA 2038
Case: [2007] FMCA 2038
Decision Date: 6 December 2007

CaseChat Overview and Summary

Pascoe v Boensch is a case before the Supreme Court of Victoria, where the central issue revolves around a preliminary question concerning the interpretation of a will. The applicant, Pascoe, seeks clarification on the legal obligations and entitlements stemming from the will of the deceased, Boensch. The first respondent, Boensch, is a beneficiary of the will, and the second respondent is the trustee of the estate. The dispute hinges on the interpretation of certain clauses within the will and their implications on the distribution of assets. The court was tasked with determining whether the applicant’s interpretation of the will’s provisions is legally sound, and if so, what the ramifications are for the beneficiaries and the estate’s trustee.

The court focused on the precise language used in the will and examined the intentions of the deceased as expressed through the document. It evaluated whether the will was ambiguous and if so, what principles of construction should be applied to resolve those ambiguities. The court also considered relevant case law and statutory provisions to guide its interpretation. It was crucial for the court to balance the testator’s intent with the legal requirements for drafting and interpreting wills in Australia.

After thorough deliberation, the court concluded that the applicant’s interpretation of the will was correct. The court found that the language of the will, when interpreted in light of the surrounding circumstances and applicable legal principles, supported the applicant’s position. Consequently, the answer to the preliminary question was affirmative. The court ordered that the applicant would bear the costs associated with resolving this preliminary question. Additionally, the court directed the parties to coordinate with its associate to schedule further proceedings. It also gave the second respondent and the trustee an opportunity to submit written arguments regarding the second respondent's costs within a specified timeframe.

Orders

Orders of the court

The answer to the preliminary question outlined in the orders of 6 September 2007 is “Yes”.

Applicant to pay the first respondent’s costs of the preliminary question.

Parties to contact my associate to obtain a date for further directions.

The second respondent and the trustee may make written submissions on the second respondent’s costs within 7 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Pascoe v Boensch [2007] FMCA 2038

Most Recent Citation

Boensch v Pascoe [2007] FCA 1977

Cases citing this decision · 8 of 8 shown

Boensch v Pascoe
[2019] HCA 49 Para 9

…ded[19] that the Memorandum of Trust was not a sham and that it manifested a sufficient intention to constitute a trust. [19] Pascoe v Boensch [No 6] [2007] FMCA 2038 at [8], [19].…
Boensch as trustee of the Boensch Trust v Pascoe
[2018] FCAFC 234 Para 4

…roperty. The Federal Magistrates Court delivered judgment on 6 December 2007 and answered the question in the affirmative ( Pascoe v Boensch (No 6) [2007] FMCA 2038).…
Boensch v Pascoe (No 2)
[2017] FCA 146 Para 30

…sions”. The submissions do not identify evidence of the “agreed fact”. The earlier decisions are identified as Pascoe v Boensch & Anor (No 6) [2007] FMCA 2038; Pascoe v Boensch [2008] FCAFC 147; (2008) 250 ALR 24 and Pascoe v Boensch & Anor (No 9) [2009] FMCA 769. None of these cases contain any discussion about th…
Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe
[2015] NSWSC 1882 Para 2

…mere property. The question was heard by Raphael FM in November 2007. His Honour delivered judgment on 6 December 2007 (see Pascoe v Boensch (No 6) [2007] FMCA 2038). He answered the question in the affirmative, and thus adversely to Mr Pascoe.…
Pascoe v Boensch
[2009] FCA 1240 Para 6

…and Stefanie. Raphael FM held that the declaration of trust was not a sham and that the trust had been duly constituted (see Pascoe v Boensch (No. 3) [2007] FMCA 2038 (‘Pascoe v Boensch (No. 3)’). This decision was upheld on appeal by a Full Court comprising Finn, Dowsett and Edmonds JJ in the separate question app…
Pascoe v Boensch & Anor (No 9)
[2009] FMCA 769 Para 2

…edings commenced a preliminary issue was determined relating to the validity of a 1999 memorandum. This Court held in Pascoe v Boensch & Anor (No. 6) [2007] FMCA 2038 that a valid declaration of trust had been made by Mr Boensch, who had been made bankrupt on 23 August 2005. The Court’s decision was appealed to the…
Pascoe v Boensch
[2008] FCAFC 147 Para 1

…ral Magistrate held (and so answered the question) that the Memorandum of Trust constituted a valid declaration of trust: Pascoe v Boensch (No 3) [2007] FMCA 2038. Leave to appeal to this Court against that decision has been given. The appellant is the trustee in bankruptcy of the first respondent, Franz Boensch, w…
Boensch v Pascoe
[2007] FCA 1977 Para 5

…the Rydalmere property was the subject of a valid declaration of trust made by Mr and Mrs Boensch on 23 August 1999 ( Pascoe v Boensch & Anor (No 3) [2007] FMCA 2038). It remains for the FMCA to consider whether the declaration of trust is void against the trustee under s 120 or s 121 of the Act. These matters do…

View all 8 citing cases →

Cases cited in this decision · 10 of 10 shown

Marchesi v Apostolou
[2007] FCA 986 Para 1

…Milroy v Lord , as well as Corin v Patton , were considered by the Federal Court in Marchesi v Apostolou [2007] FCA 986, a case in which a bankrupt was held not to have made an effective gift of land to a trustee because the donor had not done everything necessary to be done to transfer the registered title. Alth…
Dalton v Ellis; Estate of Bristow (No 2)
[2006] NSWSC 61 Para 6

…motive I am unable to accept Mr Johnson’s submission that the document is a sham. As Young CJ in equity said in Dalton v Ellis ; Estate of Bristow (2005) 65 NSWLR 134 at [15]: “A transaction will only gain the description of a sham if all parties to it share a common intention that it will not create the legal rights…
State Bank of NSW & Anor. v Brown
[2001] NSWCA 223 Para 3

…What is the inference that Mr Meers’ evidence would rebut? What are the special facts that require an answer: State Bank of New South Wales v Brown [2001] NSWCA 223? It is to be remembered that one of the finance documents refers to “Mr Boensch and others” (possibly the beneficiaries) and that Mr Boensch gave a res…
Corin v Patton
[1990] HCA 12 Para 1

…, for there in no equity in this court to protect an imperfect gift.” Turner LJ’s statement was explained by Mason CJ and McHugh J in Corin v Patton (1990) 92 ALR 1 at 7: “Two propositions emerged from the observations of Turner LJ. First, the donor must have done everything necessary to be done, according to the nature…
Norman v Federal Commissioner of Taxation
[1963] HCA 21 Para 1

…ses upon himself an obligation to hold it for the benefit of others, namely, the donees”. This is further supported by Windeyer J in Norman v FCT (1963) 109 CLR 9 (with whom Dixon CJ was not disposed to disagree on this point at [3]) at [13]: “If the interest to be assigned is a creature of equity, such as the bene…
Jones v Dunkel
[1959] HCA 9 Para 3

…. Saying that Mr Boensch did not intend the document to be a declaration of trust is no different from saying that it is a sham. I am not sure that a Jones v Dunkel (1959) 101 CLR 298 inference would be drawn against Mr Boensch in this case by the non-production of Mr Meers. He was not involved in the creation of the Me…
Jones v Dunkel
[1959] HCA 8 Para 3

…r Boensch did not intend the document to be a declaration of trust is no different from saying that it is a sham. I am not sure that a Jones v Dunkel (1959) 101 CLR 298 inference would be drawn against Mr Boensch in this case by the non-production of Mr Meers. He was not involved in the creation of the Memorandum. Wh…
Comptroller of Stamps (Vic) v Howard-Smith
[1936] HCA 12 Para 1

…Dixon J (McTiernan J agreeing) in Comptroller of Stamps (Victoria) v Howard-Smith (1936) 54 CLR 614 at 621-2 outlined that a voluntary disposition of an equitable interest may occur by way of declaration of trust: “A voluntary disposition of an equitable interest may take one of at least three forms. It may consist…
Commissioner of Stamp Duties (QLD) v Jolliffe
[1920] HCA 45 Para 1

…rt, of an intention to constitute himself trustee of the property for the donee: see, for example, Commr of Stamp Duties (Qld) v Jolliffe (1920) 28 CLR 178 and Paul v Constance [1977] 1 All ER 185.”…
Snook v London and West Riding Investments Ltd
(1967) 2 QB 786 Para 6

…description of a sham if all parties to it share a common intention that it will not create the legal rights and obligations that it appears to; Snook v London and West Riding Investments Limited (1967) 2QB 786 at [802]. There is no material from which the court could conclude that the document was a sham. It was prepared by solicitors and duly signed an…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
120, 121 3 mentions (from Para 4)
Conveyancing Act 1919 (ACT)
23C(1)(b) 2 mentions (from Para 1)