Anson v Anson [2004] NSWSC 766

Anson v Anson [2004] NSWSC 766

Express trust or agreement not to sever joint tenancy was not established. Baumgartner constructive trust prevails over resulting trust, and property is to be held with beneficial interests of 10% to John, 33.33% to Robert, and 56.67% to David, based on their contributions. Appointment of trustees for sale is appropriate in principle, subject to further evidence and orders.

Parties
Plaintiff/cross Defendant: David Gordon Anson; First Defendant/cross Claimant: Robert Edward Anson; Second Defendant: John William Anson; Third Defendant: Geoffrey Phillip Anson; Fourth Defendant: Roger Sidney Anson; Fifth Defendant: Constance Joy Martin; Sixth Defendant: Registrar-General
Jurisdiction
Australia
Judgment Date
10 September 2004
Procedural Posture
Equity Trusts and Real Property Dispute / Judgment After Final Hearing
Outcome
Express trust not established; constructive trust imposed as per Baumgartner; appointment of trustees for sale appropriate in principle; parties to bring in Short Minutes for orders.
Legal Topics
Constructive Trusts, Baumgartner Trust, Resulting Trusts, Remuneration of Trustees, Appointment of Trustees for Sale, Severance of Joint Tenancy
Equity Real Property Trusts Constructive Trusts Baumgartner Trust Resulting Trusts Remuneration of Trustees Appointment of Trustees for Sale +1 more

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Parties

David Gordon Anson

Plaintiff/cross Defendant

Robert Edward Anson

First Defendant/cross Claimant

John William Anson

Second Defendant

Geoffrey Phillip Anson

Third Defendant

Roger Sidney Anson

Fourth Defendant

Constance Joy Martin

Fifth Defendant

Registrar-General

Sixth Defendant

Procedural Posture

Equity Trusts and Real Property Dispute / Judgment After Final Hearing

Legal Issues

  1. 1 Whether an intention to create an express trust concerning land was established
  2. 2 Whether there was an enforceable agreement not to sever the joint tenancy
  3. 3 Whether Baumgartner constructive trust principles prevail over a resulting trust

Ratio Decidendi

Express trust or agreement not to sever joint tenancy was not established. Baumgartner constructive trust prevails over resulting trust, and property is to be held with beneficial interests of 10% to John, 33.33% to Robert, and 56.67% to David, based on their contributions. Appointment of trustees for sale is appropriate in principle, subject to further evidence and orders.

Court Disposition

Express trust not established; constructive trust imposed as per Baumgartner; appointment of trustees for sale appropriate in principle; parties to bring in Short Minutes for orders.

Orders

  • Declare constructive trust dividing beneficial interests: John 10%, Robert 33.33%, David 56.67%.
  • Appointment of trustees for sale in principle under section 66G Conveyancing Act 1919, subject to further evidence and orders.