Thynne v Sheringham [2023] NSWCA 181

Thynne v Sheringham [2023] NSWCA 181

The applicant's interest under the mutual wills agreement and memorandum of wishes is a floating equitable obligation, not an immediate proprietary interest; thus, he does not have a present caveatable interest in the Darling Point property. The trial judge did not err in ordering withdrawal of the caveat, as only upon the survivor's breach or death causing the trust to crystallise might a caveatable interest arise.

Jurisdiction
Australia
Judgment Date
09 August 2023
Procedural Posture
Appeal / Leave to Appeal and Appeal From Interlocutory Judgment, Supreme Court (equity Division)
Outcome
Appeal dismissed (leave granted, appeal dismissed, costs ordered against appellant)
Legal Topics
['trusts and Trustees' 'mutual Wills' 'memorandum of Wishes' 'caveats' 'constructive Trust' 'proprietary Interest']
['equity' 'real Property'] ['trusts and Trustees' 'mutual Wills' 'memorandum of Wishes' 'caveats' 'constructive Trust' 'proprietary Interest']

Case Brief

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Procedural Posture

Appeal / Leave to Appeal and Appeal From Interlocutory Judgment, Supreme Court (equity Division)

Legal Issues

  1. 1 ["Whether ultimate beneficiaries under a mutual wills agreement have a caveatable interest in property prior to the survivor's death" "Whether the obligations imposed by a memorandum of wishes create a trust upon the testator's death or only upon the survivor's death" 'Whether the applicant is entitled to lodge a caveat protecting his interest under a mutual wills agreement']

Ratio Decidendi

The applicant's interest under the mutual wills agreement and memorandum of wishes is a floating equitable obligation, not an immediate proprietary interest; thus, he does not have a present caveatable interest in the Darling Point property. The trial judge did not err in ordering withdrawal of the caveat, as only upon the survivor's breach or death causing the trust to crystallise might a caveatable interest arise.

Court Disposition

Appeal dismissed (leave granted, appeal dismissed, costs ordered against appellant)

Orders

  • ['Grant applicant leave to appeal from the judgment in the Equity Division of 22 December 2022.' 'Direct applicant to file within seven days a notice of appeal in the terms of the draft notice contained in the white folder and dispense with service.' 'Dismiss the appeal.' "Order appellant to pay the respondent's...