Tesoriero & Anor v Tesoriero & Anor [2007] NSWSC 54

Tesoriero & Anor v Tesoriero & Anor [2007] NSWSC 54

Because the Plaintiffs provided the entire acquisition cost and the evidence showed that they intended the First Defendant to hold the property as resulting trustee for them, not as a donee, the presumption of resulting trust was not rebutted. The estoppel and secret trust defences failed for want of proof. The illegality and unclean hands defences also failed because no statutory policy rendering the trust unenforceable was demonstrated, no relevant wrong to the First Defendant was shown, and granting relief would place the Plaintiffs on title and expose them to any applicable revenue liabilities.

Jurisdiction
Australia
Judgment Date
09 February 2007
Procedural Posture
Equity Division Proceedings Seeking a Declaration of Resulting Trust, Transfer of Land, Possession, Mesne Profits and Damages / Judgment After Hearing; Claims for Mesne Profits and Damages Stood Over
Outcome
Judgment for Plaintiffs.
Legal Topics
['resulting Trust' 'presumption of Resulting Trust' 'gift Intention' 'equitable Estoppel' 'secret Trust' 'illegality' 'unclean Hands' 'real Property']
['equity' 'trusts' 'property Law'] ['resulting Trust' 'presumption of Resulting Trust' 'gift Intention' 'equitable Estoppel' 'secret Trust' 'illegality' 'unclean Hands' 'real Property']

Case Brief

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Procedural Posture

Equity Division Proceedings Seeking a Declaration of Resulting Trust, Transfer of Land, Possession, Mesne Profits and Damages / Judgment After Hearing; Claims for Mesne Profits and Damages Stood Over

Legal Issues

  1. 1 ['Whether the presumption of resulting trust arising from the Plaintiffs providing the whole acquisition cost was rebutted by evidence that they intended to make a gift to the First Defendant.' 'Whether the Plaintiffs were estopped from asserting a resulting trust by representations allegedly made to the First Defendant.' "Whether the Plaintiffs intended a secret trust for their son so as to defeat bankruptcy creditors or the First Defendant's rights." "Whether the resulting trust was unenforceable for illegality or unclean hands because the property was put in the First Defendant's name to avoid capital gains tax and land tax."]

Ratio Decidendi

Because the Plaintiffs provided the entire acquisition cost and the evidence showed that they intended the First Defendant to hold the property as resulting trustee for them, not as a donee, the presumption of resulting trust was not rebutted. The estoppel and secret trust defences failed for want of proof. The illegality and unclean hands defences also failed because no statutory policy rendering the trust unenforceable was demonstrated, no relevant wrong to the First Defendant was shown, and granting relief would place the Plaintiffs on title and expose them to any applicable revenue liabilities.

Court Disposition

Judgment for Plaintiffs.

Orders

  • ["Declarations and orders as sought in paragraphs (a) to (d) of the Plaintiffs' Amended Statement of Claim." "The Plaintiffs' claims for mesne profits and damages will be determined separately." 'The proceedings were stood over to enable the Plaintiffs to prepare Short Minutes of Order and for argument as to a writ...