Dearing v Dearing [2009] NSWSC 1394

Dearing v Dearing [2009] NSWSC 1394

The presumption of advancement has been rebutted on the facts; the plaintiff did not intend to make a gift of the proceeds of the sale of her only real asset and thus the defendant holds the Bundeena property as trustee on resulting trust for the plaintiff. The defendant is also liable to account for personal property received and not returned or accounted for as bailee.

Jurisdiction
Australia
Judgment Date
11 December 2009
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Declaration of resulting trust for plaintiff and consequential orders.
Legal Topics
['resulting Trusts' 'presumption of Advancement' 'constructive Trust' 'laches' 'gratuitous Bailment' 'remedies']
['equity' 'trusts' 'bailment'] ['resulting Trusts' 'presumption of Advancement' 'constructive Trust' 'laches' 'gratuitous Bailment' 'remedies']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether the defendant holds the Bundeena property on resulting trust for the plaintiff' 'Whether the presumption of advancement is rebutted' 'Whether the defendant is liable to account as bailee for personal property entrusted by the plaintiff' 'Whether relief is barred by laches']

Ratio Decidendi

The presumption of advancement has been rebutted on the facts; the plaintiff did not intend to make a gift of the proceeds of the sale of her only real asset and thus the defendant holds the Bundeena property as trustee on resulting trust for the plaintiff. The defendant is also liable to account for personal property received and not returned or accounted for as bailee.

Court Disposition

Declaration of resulting trust for plaintiff and consequential orders.

Orders

  • ['Declaration that the defendant holds the Bundeena property as trustee on resulting trust for the plaintiff' 'Defendant to account or return items of personal property listed as received but not returned' "Plaintiff allowed $8,700 for unreturned items (excluding the stag's head), total $19,905" 'Defendant to be...