Rutherford v Wallace [1999] NSWCA 299

Rutherford v Wallace [1999] NSWCA 299

On the facts as found, there was no trust in favour of the appellant or the estate in respect of the Right of Burial; it was acquired in the name of the respondent, and no communication or agreement was established indicating that she would hold it on trust for the appellant or for the estate. The appeal was dismissed (by the majority).

Jurisdiction
Australia
Judgment Date
22 September 1999
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed with costs (by majority)
Legal Topics
['rights of Burial' 'implied Trusts' 'constructive Trusts']
['equity' 'estates' 'local Government Law'] ['rights of Burial' 'implied Trusts' 'constructive Trusts']

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

Appeal / Final Judgment

Legal Issues

  1. 1 ["Whether the Right of Burial was held by the respondent on trust for the appellant or his wife's estate" 'Nature of the Right of Burial as property' 'Whether there was a resulting, constructive or implied trust in favour of the appellant']

Ratio Decidendi

On the facts as found, there was no trust in favour of the appellant or the estate in respect of the Right of Burial; it was acquired in the name of the respondent, and no communication or agreement was established indicating that she would hold it on trust for the appellant or for the estate. The appeal was dismissed (by the majority).

Court Disposition

Appeal dismissed with costs (by majority)

Orders

  • ['Appeal dismissed with costs' 'Declaration (per Fitzgerald JA) that the respondent is not solely entitled to the rights associated with the Right of Burial but holds those rights on behalf of the administrator of the estate of her deceased mother']