Chase v Chase [2020] NSWSC 1689

Chase v Chase [2020] NSWSC 1689

The Court could not declare that Ileaco Pty Ltd held 48 Cowans Lane on trust because no trust deed or declaration of trust was produced and the secondary evidence was unclear and contradictory. It did not provide clear and convincing proof of the contents of the missing trust deed, leaving uncertainty as to the beneficiaries, the trust property and whether the trust was fixed or discretionary. The presumption of regularity could not be used to supply proof of those substantive matters, and the uncontested nature of the proceedings and public policy submissions did not remove the need to satisfy the statutory writing requirement and the three certainties.

Jurisdiction
Australia
Judgment Date
20 November 2020
Procedural Posture
Equity Proceedings Concerning an Alleged Trust Over Land and Appointment of Trustee or Trustees for Sale / Principal Judgment After Hearing in Uncontested Proceedings
Outcome
Proceedings dismissed; no order as to costs.
Legal Topics
['requirement of Writing for Declaration of Trust Respecting Land' 'secondary Evidence of Missing Trust Deed' 'three Certainties' 'presumption of Regularity' 'trust Property of Deregistered Company Vesting in the Commonwealth' 'appointment of Trustees for Sale']
['equity' 'trusts and Trustees' 'evidence' 'property Law' 'corporations'] ['requirement of Writing for Declaration of Trust Respecting Land' 'secondary Evidence of Missing Trust Deed' 'three Certainties' 'presumption of Regularity' 'trust Property of Deregistered Company Vesting in the Commonwealth' 'appointment of Trustees for Sale']

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Procedural Posture

Equity Proceedings Concerning an Alleged Trust Over Land and Appointment of Trustee or Trustees for Sale / Principal Judgment After Hearing in Uncontested Proceedings

Legal Issues

  1. 1 ['Whether Ileaco Pty Ltd held 48 Cowans Lane, Oxley Island on trust for the proposed beneficiaries.' 'Whether secondary evidence provided clear and convincing proof of the existence and terms of a missing trust deed.' 'Whether there was certainty as to the identity of the beneficiaries, the property the subject of the trust, and whether the trust was fixed or discretionary.' 'Whether the presumption of regularity could overcome the absence of a written document establishing the trust.' 'Whether the Court should appoint trustees for sale or a trustee under the Conveyancing Act 1919 (NSW) or Trustee Act 1925 (NSW).']

Ratio Decidendi

The Court could not declare that Ileaco Pty Ltd held 48 Cowans Lane on trust because no trust deed or declaration of trust was produced and the secondary evidence was unclear and contradictory. It did not provide clear and convincing proof of the contents of the missing trust deed, leaving uncertainty as to the beneficiaries, the trust property and whether the trust was fixed or discretionary. The presumption of regularity could not be used to supply proof of those substantive matters, and the uncontested nature of the proceedings and public policy submissions did not remove the need to satisfy the statutory writing requirement and the three certainties.

Court Disposition

Proceedings dismissed; no order as to costs.

Orders

  • ['The Court declined to make the declarations and orders sought in the Statement of Claim.' 'The proceedings are dismissed.' 'No order as to costs.']