couple purchasing land for matrimonial home in their joint names-Transfer by prospective husband of his half interest in the land to intended wife-Expressed to be for specified monetary consideration-No money paid-House afterwards July 26;

erected on land-Each paying portion of the cost-Marriage-House used as MELBOURNE,

matrimonial home-Summary application by husband to a judge for a declaration that wife held the land as trustee for the two of them-The Married Women's Property Acts 1890 to 1952 (Q.), S. 21.

The Married Women's Property Acts 1890 to 1952 (Q.), S. 21, SO far as it is applicable to this case, provides :-" In any question between husband and wife as to the title to or possession of investments or other property, either party, or any person, bank,

in whose books any investments or property of either party are or is standing, may apply by summons or otherwise in a summary way to any judge of the Supreme Court

Such judge may, on such application, make such order with respect to the property in dispute and as to the costs of and consequent upon the application

The appellant and respondent, whilst engaged to be married, purchased for £200 as joint tenants land on which to build their future matrimonial home. The respondent paid £150 of the purchase money. Before their marriage he transferred his joint interest in the land to the appellant. The consideration was stated in the transfer to be £100, but no part of it was paid to him. The respondent's reason for the transfer, as stated in evidence, was that the appellant told him that "her mother had their home in her own name' and that it was a thing their people believed in and that he replied that if it was going to make her happier we will do the same and she promised

98 CLR 229

to look after his interest for ever and a day after ". Subsequently a house was built on the land. Each of them paid part of the earlier progress pay- ments for its cost and the balance was paid by means of an overdraft of £300 on a bank account in the appellant's name obtained on the security of the land. A receipt for the payment of the total cost, £626 10s. 6d., was given by the builder to the appellant in her own name. After many years of married life together in the house the respondent applied to a judge under S. 21 of The Married Women's Property Acts 1890 to 1952 (Q.) for and obtained an order declaring that the appellant held the land as trustee for the two of them. The wife appealed against the order.

Held, by Dixon C.J. and McTiernan J., Taylor J. dissenting, that a resulting trust did not arise from the transfer by the respondent to the appellant of his half interest in 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.

Continue reading Wirth v Wirth

Details

AGLC: Wirth v Wirth [1956] HCA 71
Case: [1956] HCA 71
Decision Date: 25 October 1956

CaseChat Overview and Summary

The appellant, the wife, appealed from an order of the Supreme Court of Queensland made under s 21 of The Married Women's Property Acts 1890 to 1952 (Q.). The husband, the respondent, had applied for and obtained a declaration that the wife held certain land as trustee for both of them as joint tenants. The dispute arose from the transfer of the husband's half-interest in land, purchased jointly by the engaged couple for their future matrimonial home, to the wife before their marriage.

The legal issues before the court were whether a resulting trust arose from the transfer of the husband's interest in the land to his intended wife, and whether the presumption of advancement applied to a transfer made in contemplation of marriage. The court was also required to determine the extent of the discretion vested in a judge under s 21 of the Married Women's Property Acts when resolving property disputes between spouses.

Dixon C.J. and McTiernan J. held that a resulting trust did not arise from the transfer. They reasoned that a transfer of property by a prospective husband to his intended wife, made in contemplation of marriage, raises a presumption of advancement, similar to a transfer made after the marriage. They further stated that while s 21 of the Acts grants a judge discretion regarding the summary remedy, the rights of the parties must be determined according to ordinary legal principles. Taylor J. dissented.

The appeal was allowed, and the order of the Supreme Court of Queensland was reversed. The court declared that the appellant was entitled to the land and the lounge suite as beneficial owner.

Orders