Wilkins v Wilkins 2007 VSC 100 Australian Building Technical Solutions Pty Ltd

Wilkins v wilkins 2007 vsc 100 australian building

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Wilkins v Wilkins [2007] VSC 100 Australian Building & Technical Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 Nelson v Nelson (1995) 184 CLR 538
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Topic 12 – Resulting Trusts Equity & Trusts 70517 Dearing v Dearing [2009] NSWSC 1394 per Rein J Tyrone Dearing – registered proprietor of property at Bundeena – claimed needed to be in his name to obtain mortgage. Kay Dearing – mother – provided $269,000 & claimed RT. Nelson v Nelson – presumption of advancement can apply as between mother & adult child. “In my view the presumption of advancement has here been rebutted. I am not persuaded that the plaintiff intended to make a gift of the proceeds of the sale of her only real asset and to divest purchased from the proceeds. It follows that the plaintiff has made out her case for a resulting trust and it was agreed that if I were to so find, there would be no need to consider the plaintiff’s alternative contention that there ought be declared a constructive trust.”
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Topic 12 – Resulting Trusts Equity & Trusts 70517 Wilkins v Wilkins [2007] VSC 100 per Kaye J In the absence of evidence to the contrary, a registered proprietor of real estate is presumed to own the equitable interest in it. However, where a person purchases property, and places that property in the name of someone else, the law presumes that that person holds the property on a RT for the purchaser who paid the cost of acquisition of it. The presumption of a RT may be rebutted by showing that there is a relationship between the parties which gives rise to a countervailing presumption known as the “presumption of advancement”. In such a case, the presumption of the RT is, in effect, nullified.
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Topic 12 – Resulting Trusts Equity & Trusts 70517 C: PRESUMED RESULTING TRUSTS Rebuttal of presumptions The presumptions can be rebutted by evidence that the intention at the relevant time was not to make a gift: eg Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060 Evidence of acts or declarations of the parties before or at the time of purchase, or so immediately thereafter as to constitute a part of the transaction: will be admissible for and against the actor or declarant. Subsequent acts and declarations: admissible only against a person, not in favour: Shepard v. Cartwright [1954] 3 All ER 649; [1955] AC 431
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Topic 12 – Resulting Trusts Equity & Trusts 70517 D : QUISTCLOSE TRUSTS - A SPECIES OF RESULTING TRUST ( or not ?) Barclays Bank v Quistclose Investments Ltd [1970] AC 567 NSW cases considering Quistclose trust: Shepard (in his capacity as registered trustee of the bankrupt estate of Wallman) v Mladenis [2011] NSWSC 1431 George v Webb [2011] NSWSC 1608 Raulfs v Fishy Bite Pty ltd [2012] NSWCA 135
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Topic 12 – Resulting Trusts Equity & Trusts 70517 Barclays Bank v Quistclose Investments Ltd [1970] AC 567 RR was indebted to BB & needed £209,719 to pay dividends to shareholders (serious financial difficulties).
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