Presumption can be rebutted by proof of intention to make gift Contrary

Presumption can be rebutted by proof of intention to

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Presumption can be rebutted by proof of intention to make gift. Contrary presumption – presumption of advancement.
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Topic 12 – Resulting Trusts Equity & Trusts 70517 C: PRESUMED RESULTING TRUSTS Napier v. Public Trustee (WA) (1980) 32 ALR 153 at 158 per Aickin J: “Where a property is transferred by one person into the name of another without consideration, [and where a purchaser pays the vendor and directs him to transfer the property into the name of another person without consideration passing from that person], there is a presumption that the transferee holds the property upon trust for the transferor or the purchaser as the case may be.”
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Topic 12 – Resulting Trusts Equity & Trusts 70517 C: PRESUMED RESULTING TRUSTS Presumption of RT applies to both real and personal property: Russell v. Scott (1936) 55 CLR 440. But it does not apply to monies given as a loan . Conveyancing Act 1919 (NSW) s 44 – no use is to be held to result from the absence of consideration in a conveyance of land to which no uses or trusts have been declared… Unless transferor displays intention that transferee is not to take beneficially, a voluntary transfer of real property will carry both legal & equitable titles & not give rise to resulting trust.
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Topic 12 – Resulting Trusts Equity & Trusts 70517 C: PRESUMED RESULTING TRUSTS Contributions by more than one to the purchase, property in legal name of only one equity presumes a resulting trust of a share in favour of the contributing party(ies): Calverley v. Green (1984) 155 CLR 242. Ordinarily equity presumes that legal title is held on resulting trust for the purchasers as tenants in common in proportions equivalent to the proportions they contributed to the purchase price: Calverley v Green 246-7. equal contributions are presumed to be held as joint tenants - reversed by statute: Conveyancing Act 1919 (NSW) s 26.
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Topic 12 – Resulting Trusts Equity & Trusts 70517 C: PRESUMED RESULTING TRUSTS Calverley v Green (1984) 155 CLR 242 C & G were de facto partners. C & G jointly purchased house as joint tenants for $27,750: C paid $9,000 deposit (+ $250). $18,000 borrowed jointly on mortgage, but C made all loan repayments. In 1978 relationship broke down. G brought action for compulsory sale & equal distribution of proceeds. C cross-claimed that G held her interest on trust for him.
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Topic 12 – Resulting Trusts Equity & Trusts 70517 Calverley v Green (1984) 155 CLR 242 per Mason & Brennan JJ Once it was found that both parties had contributed to the purchase price, the conclusion had to conform to the relevant equitable presumption unless it was displaced, rebutted or qualified. When two or more purchasers contribute to the purchase of property and the property is conveyed to them as joint tenants the equitable presumption is that they both hold the legal estate in trust for themselves as tenants in common in shares proportionate to their contributions… Applying the relevant presumption, the CoA should have held the parties to be equitable tenants in common in the … property in proportion to the contribution each made…
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Topic 12 – Resulting Trusts Equity & Trusts 70517
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