Shortall v White

The appeal concerned an agreement between former de facto partners, Mr Shortall and Ms White. The dispute centred on whether a binding trust had been created by their agreement regarding property. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the agreement between the former de facto partners was intended to create a legally enforceable trust, or if it was merely a domestic arrangement not intended to give rise to legal relations. This required the court to consider the applicability of principles concerning agreements between parties in a domestic context, particularly in light of modern understandings of de facto relationships and contractual intent.

The Court of Appeal determined that the principle established in *Balfour v Balfour* and *Cohen v Cohen*, which presumed a lack of legal intention in domestic agreements, was no longer applicable to agreements between former de facto partners. Instead, the court applied an objective test to ascertain the intention to create a trust, focusing on whether the transaction was bilateral and supported by consideration. The court found that the agreement, being a bilateral transaction for consideration, demonstrated an intention to create a legally binding arrangement, thus establishing a trust.

The appeal was dismissed, and the parties were ordered to pay costs.