it is presumed the purchaser did not intend the other person to take beneficially • Applies when: A transfers property into the name of B, or in their names jointly, and B provides no consideration Where A purchases property in the name of B, or in the name of A and B jointly Presumed resulting trusts – types of property Applies to: • Any realty, except the voluntary transfers of general law land
• In Queensland, the Property Law Act 1974 (Qld) s 7(3) provides that the presumption does apply to the voluntary transfers of Torrens title land • In a purchase money situation, any personalty • In a voluntary transfer situation, only personalty that is capable of producing income or of being enjoyed independently of title Presumed resulting trusts – relevant presumptions Presumption of a resulting trust • Contrary evidence Rebuts the presumption of a resulting trust • Presumption of advancement Rebuts the presumption of a resulting trust o Contrary evidence Rebuts the presumption of advancement Calverly v Green (1984) 155 CLR 242 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 hold the legal estate in trust for themselves as tenants in common in shares proportionate to their contributions unless their contributions are equal  Calverly v Green (1984) 155 CLR 242 • Intention is to be inferred from what the parties do or say • Acts before or at the time of purchase are considered • Subsequent declarations are admissible only as evidence against the person claiming the interest • Mortgage payments are not payment of the purchase price (on the facts in this case) • Circumstances attending the payment of mortgage instalments are only one set of relevant facts Muschinski v Dodds (1985) 160 CLR 583 The majority held that there was a resulting trust in favour of the man applying Calverly v Green and that the parties held their respective legal interests as tenants in common upon trust, after payment of any joint debts incurred in improvement of the property, to repay to each her or his contribution and as to the residue for them both in equal shares, although the way this was decided differed The Quistclose trust • Where one creditor claims priority over other unsecured creditors • The co-existence of a loan and a trust Where A lends money to B, and B puts this money on trust, so that is does not later become available to B’s creditors Barclays Bank v Quistclose Investments  AC 567 • Facts : Quistclose Investments gives money to Rolls Razor to pay dividends. Barclays Bank knows this and places money in separate account. Later Rolls Razor becomes
insolvent and Barclays Bank takes the Quistclose Investments money to satisfy Rolls Razor’s debts to Barclays Bank • Issue : Whether Quistclose Investments could recover its loan to Rolls Razor from Barclays Bank • Held : The Quistclose Investments loan to Rolls Razor was impressed with a secondary
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- Law, Wills and trusts, Trust law, Duty