Held Edelman J The presumption of advancement could not be extended to apply to

Held edelman j the presumption of advancement could

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Held: Edelman J: The presumption of advancement could not be extended to apply to S (daughter in law). The relationship – although close – was not a parent/child relationship and therefore no loco parentis existed. Presumption of resulting trust rebutted from the facts. Close relationship. No intention to create a trust. Agreement entered into to share expresses negates trust. ‘A reasonable person considering this matter would be likely to conclude that the mortgage liability which T and S promised to discharge, including for the building loan, was, in part, their contribution to Anstey Rd’ (at [184]) Resulting Trusts: Quistclose Trust: This has been argued to constitute a resulting trust (but some commentators suggest it is actually a form of express trust) Arises where a specific purpose loan contract is entered into and the purpose fails in circumstances which reveal a mutual intention to create a trust. Barclays Vank v Quistclose Investments Ltd [1970] AC 567, CB 25.9 Facts: Q lent RR money for the specific purpose of paying a declared dividend to its shareholders. RR put it into a separate bank account with B Bank. RR went into liquidation without paying dividend. Bank sought to set of funds with moneys owing. Q argued resulting trust because purpose of loan contract failed. Held: Lord Wilberforce concluded that the specific purpose loan contract created a primary express trust because the contract benefitted a third party and a secondary resulting trust bc parties intended loan moneys to be returned in circumstances where the purpose failed. If the purpose had been carried out the relationship would have been purely contractual. Primary and secondary trusts were protective in this context. The mutual intention of the respondents and of RR and the essence of the bargain, was that the sum advanced should not become part of the assets of RR but should be used exclusively for payment of a particular class of its creditgors, namely those entitled to a
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dividend. A necessary consequence from this, by process simply of interpretation, must be that if for any reason, the dividend could not be paid, the money was to be returned to the respondents .’ (Lord Wilberforce) Quistclose Trust elements: Contract with a specific purpose which is clear to both parties (mutual intentions) A component of the intention is that if the purpose fails, money is to revert to lender Beneficiaries (ie shareholders) who benefit under the primary express trust Beneficiary (ie lender) who benefits under the secondary resulting trust. The Quistclose case endorsed by Australian HC in Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (1979) 141 CLR 335. Quistclose well established in Australian jurisprudence but requires unique and particular contractual and intentional elements.
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