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Thompson v Leigh

Thompson v Leigh

Case [2006] NSWSC 540 30 June 2006

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CITATION: Thompson v Leigh [2006] NSWSC 540

HEARING DATE(S): 13/06/06

JUDGMENT DATE :
30 June 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 06/30/2006

DECISION: Direct the parties to bring in short minutes of order in accordance with these reasons.

CATCHWORDS: EQUITY – Trusts and trustees – Resulting trusts – Constructive trusts – Director of trustee of unit trust bought properties in his own name intending them to be acquired for his superannuation funds – Properties acquired with 100% finance – Superannuation funds unable to borrow – Director and superannuation funds held units in the unit trust – Loans made to trustee, the director and director’s wife jointly – Trustee of unit trust derived all income and paid all mortgage and other expenses – No declaration of trust – Director later made bankrupt – Whether properties held by director on trust for trustee of unit trust – Whether resulting trust or “common intention” constructive trust – Held trustee of unit trust entitled under resulting trust to a one-third beneficial interest in properties and entitled to contribution secured by charge.

LEGISLATION CITED: Superannuation Industry (Supervision) Act 1993 (Cth)

CASES CITED: Sonenco (No. 77) Pty Ltd v Sylvia (1989) 24 FCR 105
Parsons v McBain (2001) 109 FCR 120
Martin v Martin (1959) 110 CLR 297
Calverley v Green (1984) 155 CLR 242
Currie v Hamilton [1984] 1 NSWLR 687
Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060
Mercier v Mercier [1903] 2 Ch 98
Ingram v Ingram [1941] VLR 95
Calverley v Green at 247
Brown v Brown (1993) 31 NSWLR 582
Nelson v Nelson (1995) 184 CLR 538
Burns v Burns
Gissing v Gissing [1971] AC 886
Grant v Edwards [1986] Ch 638
Green v Green (1989) 17 NSWLR 343
Lee v Dickerson [1884] 15 QBD 60
Forgeard v Shanahan (1994) 35 NSWLR 206
Shephard v Cartwright [1955] AC 431
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
Maharaj v Chand [1986] AC 898
Shepherd v Doolan [2005] NSWSC 42

PARTIES: RS & GH Thompson Pty Ltd
v
David Leigh as trustee of the bankrupt estate of Rodney Stuart Thompson

FILE NUMBER(S): SC 3645/05

COUNSEL: Plaintiff: M Lawson
Defendant: P Cummings

SOLICITORS: Plaintiff: Thomas Mitchell Solicitors
Defendants: Donovan Oates Hannaford Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 30 June 2006

3645/05 RS & GH Thompson Haulage Pty Ltd v David Leigh as trustee of the bankrupt estate of Rodney Stuart Thompson

JUDGMENT

1 HIS HONOUR: The plaintiff is the trustee of a unit trust known as the Geltrom Unit Trust, having accepted appointment as trustee in place of Geltrom Pty Ltd (“Geltrom”) on 16 May 2000. It seeks a declaration that it is the beneficial owner of properties at 43 Seamist Drive/Swansdale Close, Nerang, Queensland and lot 238 Fortuna Place, Arundel Park, Queensland.

2 Mr Rodney Thompson was the registered proprietor of those properties. On 15 June 2001, he was…

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 Thompson v Leigh

Details

AGLC: Thompson v Leigh [2006] NSWSC 540
Case: [2006] NSWSC 540
Decision Date: 30/06/2006

CaseChat Overview and Summary

In the case of Thompson v Leigh, the parties involved were the trustee of a unit trust and the director of the trust, who had also acquired properties in his own name intending them to be held for his superannuation funds. The dispute centred on whether the properties were held on trust for the trustee of the unit trust, and if so, whether the trust was a resulting trust or a "common intention" constructive trust. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the director held the properties on trust for the trustee of the unit trust, and if so, what type of trust it constituted. The court needed to determine if there was a resulting trust or a constructive trust based on the common intention of the parties involved. The court also had to consider whether the properties were acquired with the intention that they be held for the superannuation funds, given the director's and the superannuation funds' joint holding of units in the unit trust.

The court found that the director held the properties on trust for the trustee of the unit trust. The court determined that this was a resulting trust, as the director intended the properties to be acquired for his superannuation funds, which could not borrow the necessary funds. The court noted that the trustee derived all income from the properties and paid all mortgage and other expenses, further supporting the existence of the trust. The court held that the trustee of the unit trust was entitled under the resulting trust to a one-third beneficial interest in the properties and was also entitled to a contribution secured by a charge.

The final orders of the court included the determination that the trustee of the unit trust was entitled to a one-third beneficial interest in the properties and that a charge should be placed on the director's interest in the properties to secure the trustee's entitlement to a contribution.

Orders