Thomas v Thomas

[2010] NSWCA 12

New South Wales

Court of Appeal

CITATION:	Thomas v Thomas [2010] NSWCA 12
HEARING DATE(S):	5 February 2010
JUDGMENT DATE:	16 February 2010
JUDGMENT OF:	Campbell JA at [1]; Macfarlan JA at [2]; Young JA at [3]
DECISION:	(1) The appeal is dismissed. (2) The appellant personally to pay the respondent's costs of appeal.
CATCHWORDS:	EQUITY- father's estate claims land in son's name- father and son with very similar names- primary judge dismisses claim- decision on facts upheld- presumptions of resulting trust and advancement of little assistance.
CATEGORY:	Principal judgment
PARTIES:	Kenn Thomas (Appellant) John Wayne Thomas, Jnr (Respondent)
FILE NUMBER(S):	CA 2009/00298184
COUNSEL:	M S Willmott SC and R D Wilson (Appellant) L J Ellison SC (Respondent)
SOLICITORS:	Brazel Moore Lawyers (Appellant) Shaw Reynolds Bowen & Gerathy (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 5835/07
LOWER COURT JUDICIAL OFFICER:	Rein J
LOWER COURT DATE OF DECISION:	27 November 2008

CA 2009/00298184


CAMPBELL JA
MACFARLAN JA
YOUNG JA

Tuesday 16 February 2010

THOMAS v THOMAS

Judgment

1 CAMPBELL JA: I agree with Young JA.

2 MACFARLAN JA: I agree with Young JA:

3 YOUNG JA: This appeal concerns a dispute between the proprietor of real property, and the estate of his late father, as to whether interests in certain property are held by him on trust for the estate.

4 The proceedings were heard by Rein J who determined that there was no trust: the appellant, the administrator of the father’s estate has appealed to this court.

5 The appellant, Kenn Thomas, is the adopted son of the deceased, George Henry Thomas, who was also known as John Wayne Thomas (senior), who died on 3 June 2005 aged 78.

6 The respondent is John Wayne Thomas (junior) the son of the deceased and his then wife.

7 On the appeal, Mr M S Willmott SC and Mr R D Wilson appeared for the appellant and Mr L Ellison SC appeared for the respondent.

8 Originally, the appellant sought determination of a trust in respect of five properties. One of these was conceded, two of the claims were withdrawn, leaving for determination the beneficial ownership of a lock up shop at Kulnura (“the Shop”) and a property in Yorkey Waters Road, Kulnura (“Yorkey Waters”).

9 The case as pleaded was on the basis that there was a resulting trust in respect of the two properties. However, at the trial the further case was advanced that the properties had been acquired by the respondent as “nominee” for the deceased, or the deceased and the respondent as tenants in common.

10 Mr Willmott accepted that his client bore the onus of proof of establishing the deceased’s beneficial interest in each of the two properties.

11 The primary judge noted that, apart from the respondent himself (with whose evidence he did not have the same degree of confidence), he accepted that all the witnesses were honest and reliable, doing the best they could to recollect events that…