Holmes v Mack [2010] NSWSC 1365

Holmes v Mack [2010] NSWSC 1365

Sharon Anne Holmes was beneficially entitled to the Carlton property because she supplied the purchase money and the presumption of advancement did not apply, giving rise to a presumed resulting trust, and in any event the 28 June 1996 Deed vested any remaining beneficial interest in her. The antiques business was vested in Sharon by the 28 June 1996 Deed. The Kogarah property's beneficial interest vested in Sharon under the 30 June 1996 written agreement supported by consideration, alternatively by common intention constructive trust and proprietary estoppel, subject to Donald John Mack's equitable right of lifetime residence. Laura Mack did not establish any counter-estoppel because no...

Jurisdiction
Australia
Judgment Date
26 November 2010
Procedural Posture
Equity Division Proceedings Concerning Declarations of Trust Over Real Property and an Antiques Business, With a Related De Facto Property Adjustment Proceeding Under the (nsw) Property (relationships) Act 1984 / Principal Judgment Determining the Trust Issues First After the De Facto Proceeding Was Removed From the District Court Into the Supreme Court
Outcome
Declarations of trust made in favour of Sharon Anne Holmes.
Legal Topics
['resulting Trusts' 'common Intention Constructive Trusts' 'proprietary Estoppel' 'joint Purchase of Land' 'beneficial Ownership' 'unstamped Documents' 'de Facto Property Proceedings']
['equity' 'trusts' 'estoppel' 'evidence' 'property Law'] ['resulting Trusts' 'common Intention Constructive Trusts' 'proprietary Estoppel' 'joint Purchase of Land' 'beneficial Ownership' 'unstamped Documents' 'de Facto Property Proceedings']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Declarations of Trust Over Real Property and an Antiques Business, With a Related De Facto Property Adjustment Proceeding Under the (nsw) Property (relationships) Act 1984 / Principal Judgment Determining the Trust Issues First After the De Facto Proceeding Was Removed From the District Court Into the Supreme Court

Legal Issues

  1. 1 ['Whether Sharon Anne Holmes was the beneficial owner of the antiques business.' 'Whether Sharon Anne Holmes was the beneficial owner of the Carlton property.' 'Whether Sharon Anne Holmes was the beneficial owner of the Kogarah property.' 'Whether Donald John Mack and Sharon Anne Holmes were estopped from denying that Donald John Mack was beneficially entitled to the disputed properties.' "Whether unstamped documents could be admitted into evidence upon the solicitor's usual undertaking as to stamp duty."]

Ratio Decidendi

Sharon Anne Holmes was beneficially entitled to the Carlton property because she supplied the purchase money and the presumption of advancement did not apply, giving rise to a presumed resulting trust, and in any event the 28 June 1996 Deed vested any remaining beneficial interest in her. The antiques business was vested in Sharon by the 28 June 1996 Deed. The Kogarah property's beneficial interest vested in Sharon under the 30 June 1996 written agreement supported by consideration, alternatively by common intention constructive trust and proprietary estoppel, subject to Donald John Mack's equitable right of lifetime residence. Laura Mack did not establish any counter-estoppel because no...

Court Disposition

Declarations of trust made in favour of Sharon Anne Holmes.

Orders

  • ['Declare that the defendant Donald John Mack holds the property situate at and known as XX Union Street, Kogarah being the land comprised in folio identifier 6/F/15XX upon trust for the plaintiff Sharon Anne Holmes, subject to an equitable right for Donald John Mack to reside in the property for his lifetime.'...