Re Hope, A.P. v. Ex parte Carter, J. [1985] FCA 93

Re Hope, A.P. v. Ex parte Carter, J. [1985] FCA 93

The applicant failed to establish any expressed or implied common intention that the bankrupt would hold his half interest in the property on trust for her. At the time of transfer she expected to marry the bankrupt and the relationship to continue, and the court did not accept that the transfer was merely temporary; the delay until late 1983 in seeking re-transfer supported that conclusion. It was also not a fraud for the bankrupt to assert a beneficial interest in the interest legally held by him. Accordingly, no express, resulting, or constructive trust arose and the Official Receiver did not hold the land on trust for the applicant.

Jurisdiction
Australia
Judgment Date
18 March 1985
Procedural Posture
Bankruptcy Application Seeking a Declaration That the Official Receiver Holds Land on Trust for the Applicant / Final Orders and Reasons for Judgment
Outcome
Application dismissed with costs.
Legal Topics
['express Trust' 'resulting Trust' 'constructive Trust' 'common Intention' 'uncontradicted Evidence' 'beneficial Interest in Jointly Owned Property' 'postponement of Spouse Claims Under Bankruptcy Legislation']
['trusts' 'bankruptcy'] ['express Trust' 'resulting Trust' 'constructive Trust' 'common Intention' 'uncontradicted Evidence' 'beneficial Interest in Jointly Owned Property' 'postponement of Spouse Claims Under Bankruptcy Legislation']

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Procedural Posture

Bankruptcy Application Seeking a Declaration That the Official Receiver Holds Land on Trust for the Applicant / Final Orders and Reasons for Judgment

Legal Issues

  1. 1 ['Whether the transfer of 11 Mankina Street, Slacks Creek into the joint names of Jean Carter and Anthony Peter Hope created an express trust in favour of Jean Carter.' "Whether a resulting trust should be implied from the parties' oral communications and conduct concerning the transfer." 'Whether a constructive trust arose because it would be a fraud for Anthony Peter Hope or the Official Receiver to assert a beneficial interest in the property.' "Whether the court was bound to accept the applicant's uncontradicted evidence of common intention as conclusive." 'Whether it was necessary to decide if the applicant was a "spouse" for the purposes of s.111 of the Bankruptcy Act 1966 (Commonwealth).']

Ratio Decidendi

The applicant failed to establish any expressed or implied common intention that the bankrupt would hold his half interest in the property on trust for her. At the time of transfer she expected to marry the bankrupt and the relationship to continue, and the court did not accept that the transfer was merely temporary; the delay until late 1983 in seeking re-transfer supported that conclusion. It was also not a fraud for the bankrupt to assert a beneficial interest in the interest legally held by him. Accordingly, no express, resulting, or constructive trust arose and the Official Receiver did not hold the land on trust for the applicant.

Court Disposition

Application dismissed with costs.

Orders

  • ['The Official Receiver does not hold the land referred to in this application as Trustee for Jean Carter.' 'The application is dismissed, the applicant to pay the costs of and incidental to this application, to be taxed if not otherwise agreed.']