***Rebutting the presumption of Resulting Trust -
Charles Marshall Pty Ltd v Grimsley
(1956) 95 CLR 353
When the presumption of resulting trusts arises, evidence can be admitted of the
actual
intention
of the parties to prove that no such trust was intended
Intention
remains paramount in resulting trusts and evidence of the circumstances
surrounding the transfers is admissible, whether it be written or parol evidence. However, it is
important to note that the evidence must relate to the intention of the parties at the time that
the interests were created
“
The presumption can be
rebutted or qualified by evidence which manifests an
intention to the contrary
. Apart from admissions, the only evidence that is relevant and
admissible comprises the acts and declarations of the parties before or at the time of the
purchase … or so immediately thereafter as to constitute a part of the transaction.”
Presumption of Advancement
Equity refuses to presume an intention to create a RT and instead presumes that any
purchase or contribution was intended to be a gift by way of advancement
–
Grey v Grey
Resulting Trust will not arise when there is evidence of actual intention of the parties.
Effect of PoA is to override the presumption of RT, which the result that the legal and
equitable states will stay where they lie.
Can be rebutted by the evidence of intention of the contributing parties at the time of the
transfer. If shown that there was no actual intention to confer a beneficial interest on the legal
title holder, the presumption will not be effective and the normal presumption of RT will apply
–
Calverley v Green
Onus of rebutting lies on the person asserting an RT, not PoA -
Calverley v Green
Arises in:
1.
Transfers from husbands to wives
Arises when a husband either provides the PP or makes contributions to the PP of a
property in which the which is given a legal interest
Can arise in regards to fiancée or intended wife –
Wirth v Wirth (1956).
This is a gift in contemplation of marriage. If the marriage does not occur the gift
should be returned; not returned
held on RT:
Jenkins v Wynen [1992]
Joint Purchase of matrimonial home:
Trustees of the Property of Cummins (a
bankrupt) v Cummins [2000]
o
Barrister becomes bankrupt after failing to pay income tax for nearly 45 years
o
He and his wife purchased a house where Mr Cummins had contributed 23.7%
to the PP and Mrs Cummins had contributed 76.3%
o
He then transferred his legal and beneficial interest in the matrimonial home to
his wife
o
High Court: found that transaction was void became main purpose was to avoid
creditors
Where Husband and wife purchase a matrimonial property it will generally be
inferred that the property will be held equally between them irrespective of the
contributions that were made
If the property has been registered in joint names, equity will not interfere with that JT
by creating disproportionate shares reflecting their contributions
Sui Mei Huen v Official Receiver for Official Trustee in Bankruptcy
o
Federal Court: Cummins presumption of JT is not irrebuttable; it could be
displayed by an express or constructive agreement between a husband and wife
concerning their interests.
