DEEN v KRASSOF [1999] NSWSC 378

DEEN v KRASSOF [1999] NSWSC 378

Although the defendant originally held the one-half interest on trust for the deceased, the Deed of Release of 17 December 1981 operated immediately to annul the Deed of Trust and convey the beneficial interest to the defendant. The condition in Clause 2 affected only the covenants in Clause 2, or in any event was wholly for the defendant's benefit and was never relied on; no obligation to account arose because the defendant had not sold his share pursuant to a court order or at all, and any accommodation or alternative accounting obligation ended with the deceased's death. The plaintiff therefore had no equitable interest, constructive trust, charge, or right to transfer or accounting,...

Jurisdiction
Australia
Judgment Date
28 April 1999
Procedural Posture
Equity Proceeding Concerning Equitable Ownership of a One Half Tenant in Common Interest in Real Property and a Cross Claim / Final Judgment After Hearing
Outcome
Plaintiff's claim dismissed with judgment for the defendant; cross-claim dismissed with judgment for the cross-defendant.
Legal Topics
['creation of Trust Over Land' 's 23 C(1) of the Conveyancing Act, 1919' 'interpretation of Deed of Release' 'transfer of Beneficial Interest' 'constructive Trust' 'equitable Mortgage' 'conditions in Deeds']
['equity' 'trusts' 'property Law' 'deeds'] ['creation of Trust Over Land' 's 23 C(1) of the Conveyancing Act, 1919' 'interpretation of Deed of Release' 'transfer of Beneficial Interest' 'constructive Trust' 'equitable Mortgage' 'conditions in Deeds']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Equitable Ownership of a One Half Tenant in Common Interest in Real Property and a Cross Claim / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendant held his one-half interest in 24 Bradford Street Balmain on trust for the deceased's Estate." 'Whether any absence of contemporaneous writing prevented proof or enforcement of the alleged trust under subs. 23C(1) of the Conveyancing Act, 1919.' 'Whether the Deed of Release of 17 December 1981 transferred the beneficial interest to the defendant or was ineffective because of an unfulfilled condition.' 'Whether Clause 2 of the Deed of Release created an obligation to account to the Estate or any equitable interest or charge over the property.' 'Whether the circumstances gave rise to a constructive trust in favour of the Estate.' 'Whether, if the Estate had an interest, the defendant had a constructive trust or equitable mortgage for payments made to the deceased.']

Ratio Decidendi

Although the defendant originally held the one-half interest on trust for the deceased, the Deed of Release of 17 December 1981 operated immediately to annul the Deed of Trust and convey the beneficial interest to the defendant. The condition in Clause 2 affected only the covenants in Clause 2, or in any event was wholly for the defendant's benefit and was never relied on; no obligation to account arose because the defendant had not sold his share pursuant to a court order or at all, and any accommodation or alternative accounting obligation ended with the deceased's death. The plaintiff therefore had no equitable interest, constructive trust, charge, or right to transfer or accounting,...

Court Disposition

Plaintiff's claim dismissed with judgment for the defendant; cross-claim dismissed with judgment for the cross-defendant.

Orders

  • ["On the plaintiff's claim I give judgment for the defendant with costs." 'On the cross-claim I give judgment for the cross-defendant.' 'I order that each party pay his or her own costs of the cross-claim.']