Avison v McFarlane

In the High Court of Australia, Avison v McFarlane concerns a dispute over the division of assets in a trust upon the separation of the husband and wife. The wife sought to trigger a mandatory division of the trust assets as allowed by clause 8.12 of the Avian Trust deed. The husband, however, opposed the application, claiming that two of the properties were subject to a trust in favour of his daughters and that the transfer of these properties and/or his subsequent gifting program were void for non-compliance with the Property (Relationships) Act 1976.

The legal issues before the Court were whether the husband's daughters had an interest in 29 and 31 Avian Road, and if the transfer of these properties, and/or the husband's subsequent gifting program, were void for non-compliance with the PRA. The Court was required to determine the nature and extent of the daughters' interest, if any, in the trust properties and whether the husband's actions complied with the PRA.

The Court found that the husband's daughters did not have an interest in 29 and 31 Avian Road, as there was no evidence of a trust being created in their favour. The Court also found that the transfer of these properties and/or the husband's subsequent gifting program did not comply with the PRA, as the husband failed to provide the required notice to the trustees. The Court held that the wife was entitled to a declaration that the assets of the trust included all three properties and an order by way of specific performance directing the trustees to re-settle half of the assets (or their money equivalent) on the wife’s new trust.

In conclusion, the Court ruled in favour of the wife, granting her the declaration and specific performance order sought. The husband's claims regarding his daughters' interest in the trust properties and the validity of the transfer and gifting program were rejected.