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Strang v Strang

Strang v Strang

Case [2009] NSWSC 760 5 August 2009

Breach of Trust

Equitable Estoppel

Adverse Possession

Statutory Construction

Statutory Interpretation

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CITATION: Strang v Strang [2009] NSWSC 760

HEARING DATE(S): 12.02.09, 13.02.09, 16.04.09, 17.04.09

JUDGMENT DATE :
5 August 2009

JUDGMENT OF: Nicholas J

DECISION: Par 156 - 159

CATCHWORDS: EQUITY – trusts and trustees – vesting orders – written declaration of trust – whether requisite intention existed at time of declaration – equitable defences – laches and delay – general principles considered REAL PROPERTY – Crown land – week-end leases – whether declaration of trust an illegal dealing under Crown Lands Consolidation Act 1913 LIMITATION OF ACTIONS – trusts and trustees – trustee’s executrix refuses to transfer trust property to beneficiary’s executrix – whether plaintiff statute barred – when claim for a vesting order arises – rule in Saunders v Vautier considered STATUTORY INTERPRETATION –Trustee Act 1925 – whether laches available as a defence to a claim for a vesting order under s 71 Trustee Act 1925 – principles considered CROSS-CLAIM – equity – powers and duties of trustee – trustee seeks indemnity out of trust estate for payment of expenses – whether expenses related to conduct of the trust or trust affairs – question turns on its on facts – no general principles considered

LEGISLATION CITED: Crown Lands Consolidation Act 1913
Limitation Act 1969
Supreme Court Act 1970
Trustee Act 1925

CATEGORY: Principal judgment

CASES CITED: CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98
Davies v Littlejohn [1923] HCA 64; (1923) 34 CLR 174
DKLR Holding Co (No. 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510
DKLR Holding Co (No. 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431
Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072
Gatsios Holdings Pty Ltd v Kritharas Holdings (in liq) [2002] NSWCA 29
Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271
Hourigan v Trustees Executors and Agency Co Ltd [1934] HCA 25; (1934) 51 CLR 619
Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624
Hyhonie Holdings Pty Ltd v Leroy [2004] NSWCA 72
McWilliam v McWilliam Wines Pty Ltd [1964] HCA 6; (1964) 114 CLR 656
Minister for Lands v Cassin (1966) 45 LVR 26
Minister for Lands & Forests v McPherson (1991) 22 NSWLR 687
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273
NSW v Scharer [2003] NSWCA 328
Orr v Ford [1989] HCA 4; (1989) 167 CLR 316
Re Lamshed [1970] SASR 224
Re McCready [2004] NSWSC 887
Re Purkiss [1999] VSC 386; (1999) 3 VR 223
Saunders v Vautier (1841) 4 Beav 115; 49 ER 282
Sichel v O’Shanassy (1877) 3 VLR (E) 208
Stafford v Kekatos (No. 4) [2008] NSWSC 1338
Walsh v Minister for Lands for NSW [1960] HCA 52; (1960) 103 CLR 240

TEXTS CITED: J D Heydon and M J Lemming, Jacobs' Law of Trusts in Australia, 5th Ed (2006) Lexis Nexis Butterworths

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 Strang v Strang

Details

AGLC: Strang v Strang [2009] NSWSC 760
Case: [2009] NSWSC 760
Decision Date: 5 August 2009

CaseChat Overview and Summary

The case of Strang v Strang involved a dispute over a written declaration of trust concerning Crown land held under a weekend lease. The parties were the plaintiff, Strang, and the defendant, Strang, who was the executrix of the estate of the plaintiff's father. The plaintiff sought a vesting order, claiming that the requisite intention existed at the time of the declaration of trust, and sought to address equitable defences, including laches and delay. The defendant argued that the plaintiff was statute-barred from claiming a vesting order, as the claim for a vesting order arose when the plaintiff reached the age of majority. Additionally, the defendant claimed that the plaintiff was estopped from claiming a vesting order due to laches.

The legal issues the court had to decide were whether the requisite intention existed at the time of the declaration of trust, whether the plaintiff was statute-barred, and when the claim for a vesting order arose. The court also considered whether laches was available as a defence to a claim for a vesting order under s 71 of the Trustee Act 1925. The court examined the principles of statutory interpretation and the powers and duties of trustees, including whether the trustee could seek indemnity out of the trust estate for payment of expenses.

The court held that the requisite intention existed at the time of the declaration of trust, and that the claim for a vesting order arose when the plaintiff reached the age of majority. The court found that the plaintiff was not statute-barred as the claim for a vesting order arose before the statute of limitations began to run. The court also held that laches was not available as a defence to a claim for a vesting order under s 71 of the Trustee Act 1925. Finally, the court held that the trustee could seek indemnity out of the trust estate for payment of expenses related to the conduct of the trust or trust affairs.

The court ordered that the plaintiff be granted a vesting order and that the defendant transfer the trust property to the plaintiff's executrix. The court also ordered that the defendant pay the plaintiff's costs of the action.

Orders