Shortall v White

[2007] NSWCA 372

Reported Decision: (2007) DFC 95-411

New South Wales

Court of Appeal

CITATION:	Shortall v White [2007] NSWCA 372
HEARING DATE(S):	28 November 2007
JUDGMENT DATE:	19 December 2007
JUDGMENT OF:	Hodgson JA at 1; Santow JA at 2; Handley AJA at 3
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	DEFACTO RELATIONSHIPS - agreement between former defacto partners - principle in Balfour v Balfour [1919] 2 KB 571 and Cohen v Cohen [1929] HCA 15 - (1929) 42 CLR 91 no longer applicable - TRUST - intention to create - bilateral transaction for consideration - test objective
CASES CITED:	Balfour v Balfour [1919] 2 KB 571 Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91 Commissioner of Stamp Duties (Qd) v Jolliffe [1920] HCA 45; (1920) 28 CLR 178 Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86, 100 Konskier v B Goodman Ltd [1928] 1 KB 421 Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491 Saunders v Vautier [1841] 4 Beav 115 [49 ER 282] T Choithram International S A v Pagarini [2001] 1 WLR 1 PC Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 Walker v Corboy (1990) 19 NSWLR 382
PARTIES:	Alan Shortall Louise White
FILE NUMBER(S):	CA 40836/06
COUNSEL:	G Curtin (Appellant) N Perram SC with P Castley (Respondent)
SOLICITORS:	Middletons (Appellant) Stephen Bottrill Solicitors & Attorneys (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 2719/06
LOWER COURT JUDICIAL OFFICER:	Campbell J
LOWER COURT DATE OF DECISION:	15 December 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	White v Shortall [2006] NSWSC 1379

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CA 40836/06
SC 2719/06

HODGSON JA
SANTOW JA
HANDLEY AJA

Wednesday 19 December 2007

Alan SHORTALL v Louise WHITE

DEFACTO RELATIONSHIPS - agreement between former defacto partners - principle in Balfour v Balfour [1919] 2 KB 571 and Cohen v Cohen [1929] HCA 15; (1929) 42 CLR 91 no longer applicable

TRUST - intention to create - bilateral transaction for consideration - test objective

The parties had been in a defacto relationship which had broken down but they continued to see each other. On 17 March 2003 they had an emotional 2 hour counselling session with a psychologist during which the respondent said she wanted some security and the appellant agreed to give her a letter indicating that he held some shares in a public company in trust for her. Later that day the appellant said that he would not sign such a letter unless the respondent gave him a cheque for $20,000 which she did. The appellant then gave the respondent a letter confirming that he held 222,000 shares in the company in trust for her which he would transfer on request made after 1 August 2003. Unknown to the respondent the shares were held in escrow until 1 November 2004 following listing of the company on the ASX. The respondent called for a transfer of the…