TRUSTS – Presumption of resulting trust – Principles – Beneficiary contributed to purchase price of property acquired in name of trustee of a trust established by beneficiary’s father – Presumption not rebutted – Leave to appeal granted – Appeal dismissed.
CONTRACT – Oral agreement for transfer of interest in land – Statute of Frauds not satisfied – Principles relating to part performance – Sufficient acts of part performance established.
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APPEARANCES:
Counsel
Solicitors
For the Applicants
Dr I J Hardingham QC with Mr M Y Bearman
DCA Lawyers
For the Respondent
Mr P W Collinson QC
Klonis Kirby & Co
TATE JA:
I have had the benefit of reading, in draft form, the reasons of Kyrou JA. I agree, for the reasons his Honour gives, that leave to appeal should be granted but that the appeal should be dismissed.
KYROU JA:
Introduction and summary
This is an application for leave to appeal against a declaration made by a judge of the County Court that the respondent (‘James’) holds an interest in a property at 50 Puckle Street, Moonee Ponds (‘Property’) which is registered in the name of the first applicant (‘Trustee’), and an order requiring the Trustee to transfer that interest to James.[1]
The second applicant (‘Andrew’) is the younger brother of James. They are both directors of the Trustee, which is the trustee for a family discretionary trust known as the S Vlahos Family Trust (‘Trust’). James is a solicitor.
The proceeding arose out of the acquisition by the Trustee of the Property in July 1990 for $590,000. The Property is a two storey building and comprises a retail area on the ground floor, a residential area on the first floor and two car park spaces at the rear of the building. James contributed $110,000 towards the purchase price of the Property and paid the stamp duty of $31,600 for the transaction. His total contribution of $141,600 represented 22.57[2] per cent of the total cost of the transaction, namely, $621,600 (‘acquisition cost’).
[2]This is an agreed percentage. The correct percentage is 22.78 per cent.
In December 2011, Andrew and James signed a minute of meeting of the Trustee which was expressed to have taken place on 8 December 2011 (‘Minute’).[3]
[3]The Minute misdescribed the Trustee as Vlahos Holdings Pty Ltd but nothing turns on this error.
The Minute set out a number of resolutions, including a resolution providing for an in specie distribution of the first floor of the Property to James (‘in specie distribution’). The Minute stated as follows:
The directors resolved that the…
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.
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AGLC
Vlahos Pty Ltd v Vlahos [2017] VSCA 166
Case
[2017] VSCA 166
Decision Date
CaseChat Overview and Summary
In Vlahos Pty Ltd v Vlahos, the parties involved were Vlahos Pty Ltd and various individuals related to the deceased, George Vlahos. The dispute centred around the interpretation of a trust established by George and the validity of an oral agreement concerning the transfer of a property interest. The matter was heard in the Supreme Court of Victoria. The plaintiffs sought to establish that a resulting trust existed over certain properties, while the defendants argued against this claim. Additionally, the plaintiffs argued for the enforcement of an oral agreement to transfer an interest in land, contending that it was sufficiently evidenced by part performance.
The legal issues before the court encompassed the presumption of a resulting trust in the context of a property purchased by a trustee in the name of a trust established by the beneficiary's father. The court had to determine whether the presumption of a resulting trust was rebutted by any evidence. Furthermore, the court needed to examine whether the oral agreement for the transfer of land interest was valid, considering the requirements of the Statute of Frauds and the doctrine of part performance.
The court held that the presumption of a resulting trust was not rebutted by any evidence presented. It found that the contributions made by the beneficiaries towards the purchase price of the property were insufficient to overcome the presumption. Consequently, the court upheld the existence of the resulting trust as claimed by the plaintiffs. Regarding the oral agreement, the court found that the doctrine of part performance applied, as the plaintiffs had established sufficient acts that could be attributed solely to the agreement. These acts demonstrated the existence of the oral contract, thereby satisfying the requirements for its enforcement despite the Statute of Frauds.
The court granted leave to appeal but ultimately dismissed the appeal. The resulting trust was confirmed, and the oral agreement for the transfer of the property interest was upheld, allowing the plaintiffs to enforce the agreement as established by part performance.