2 if the presumption of rt arises a b and c hold

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2. If the presumption of RT arises, A, B and C hold their joint legal title on trust for themselves as tenants in common in shares proportionate to their contributions. REBUTTING THE PRESUMPTION OF RESULTING TRUST (1) 1. Evidence of actual intention to pass beneficial interest (eg a gift, or an advance to be repaid) 2. The intention is that of the transferor (S) at the time of the transfer or purchase 3. Intention must be actual, and can be express, or inferred from words or conduct. That is, it was in their head to intend to do this!!! 4. The onus is on the person seeking to rebut the presumption REBUTTING THE PRESUMPTION OF RESULTING TRUST (2) 1. The presumption of RT is rebutted where the presumption of advancement applies. 2. In transfers from husband to wife ( not de facto ), parent to child, law presumes the transferor intended to make a gift (‘advancement’) 3. Presumption of advancement applies to a transfer from mother to child: Nelson v Nelson (1995) 184 CLR 538 RT: PUTTING IT TOGETHER 1. Could presumption of RT operate in relation to this transfer or purchase? 2. If so, onus is on the person seeking to rebut it. 3. Is it rebutted by presumption of advancement? 4. Is either presumption rebutted by evidence of actual intention at the time of the transfer or purchase? CALVERLEY V GREEN: FACTS 1. Mr C and Ms G were de facto spouses. C argued that G had a resulting trust (RT). Not only had he made all the payments, but had a presumption of an RT. There was no real rebuttal. 2. They bought a home ($27,250) in joint names 3. C contributed $9250 from own funds 4. The rest ($18000) was provided from a mortgage loan to both of them 5. C made all the repayments and G paid household expenses CALVERLEY V GREEN:HIGH COURT 1. Where two or more persons advance the purchase price in unequal shares, it is 2
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3 presumed that the transferees hold the property upon a resulting trust for those who provided the purchase price in shares proportionate to their contributions. Court held this was the case. 2. What did G contribute? She was a joint borrower, so half the mortgage advance was her contribution 3. An RT arose and was not rebutted by presumption of advancement (which does not operate between de facto husband and wife, as there is a higher degree of separation, in that they’re not intending to be fully bound.) 4. No evidence that C intended to make a gift CALVERLEY V GREEN: THE SHARES 1. Their shares under the RT were fixed at time of purchase and were not affected by who actually paid the mortgage instalments. 2. C and G held their joint legal interests on trust for themselves as tenants in common in equity in proportion to their respective contributions to the purchase money. That is, C contributed 2/3, G merely 1/3. **Even if G repayed C, C would still be held to own the property in equity, as at time of making agreement, C had paid it off.
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