Weston v McAuley

This case concerned a claim by a trustee in bankruptcy for a 50% share of the proceeds from the sale of a former matrimonial home. The dispute arose between the trustee, representing the bankrupt husband, and the bankrupt's wife, who claimed a greater entitlement to the proceeds. The matter was heard by Judge Driver.

The court was required to determine the proper characterisation of the bankrupt's proprietary interest in the former matrimonial home and, consequently, the respective entitlements of the trustee and the wife to the sale proceeds. This involved considering whether a presumption of a resulting trust in favour of the bankrupt arose, and if so, whether that presumption could be rebutted by evidence or the presumption of advancement.

Judge Driver reasoned that the High Court's decision in *Calverley v Green* remained relevant, particularly concerning the presumption of advancement. The judge noted that where two or more persons contribute unequal shares to the purchase of property held in joint names, a presumption arises that the property is held on trust for them as tenants in common in proportion to their contributions, unless a relationship giving rise to a presumption of advancement exists. The presumption of advancement typically applies to purchases by a husband in his wife's name, or a father in a child's name. The judge found that this presumption could be displaced by evidence demonstrating a common intention for the parties to share an equal interest, or that the disproportionate contributor intended an equal interest despite their contribution. The court also considered that the relevant intention is an objective, manifest intention inferred from the parties' words and conduct, rather than an uncommunicated subjective intention. The judge distinguished the present case from *Cummins* on two bases: the presumption of advancement and the actual intention of the parties.