Killen v Rennie & 1 Ors [2005] NSWCA 392

Killen v Rennie & 1 Ors [2005] NSWCA 392

The presumption of resulting trust in favour of Mrs Killen was rebutted by evidence, including the 8 July 1974 directors' minute, demonstrating that Aroona retained beneficial ownership until an explicit disposition occurred. The directors' minute of 8 July 1974 constituted an effective note or memorandum in writing under s54A of the Conveyancing Act, evidencing a transaction by which Aroona disposed of its beneficial interest in Piccadilly Gardens to Mrs Killen for satisfaction of indebtedness, and subsequent financial statements confirmed this arrangement. Thus, Mrs Killen was entitled to prove in the liquidation of Rotor-Work for the loan proceeds raised on the property.

Parties
Appellant: Rosanne Lyle Fulton Killen; First Respondent: Kenneth John Rennie; Second Respondent: Aroona Developments Pty Limited (in liquidation) ACN 008 441 129
Jurisdiction
Australia
Judgment Date
15 November 2005
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed with costs.
Legal Topics
Resulting Trusts, Beneficial Interest, Evidence of Intention, Corporate Asset Ownership, Proof of Debt in Liquidation
Trusts Equity Company Law Resulting Trusts Beneficial Interest Evidence of Intention Corporate Asset Ownership Proof of Debt in Liquidation

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Parties

Rosanne Lyle Fulton Killen

Appellant

Kenneth John Rennie

First Respondent

Aroona Developments Pty Limited (in liquidation) ACN 008 441 129

Second Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether Aroona held Piccadilly Gardens on resulting trust for Mrs Killen at acquisition
  2. 2 Whether equitable interest in Piccadilly Gardens passed to Mrs Killen by directors' resolution on 8 July 1974

Ratio Decidendi

The presumption of resulting trust in favour of Mrs Killen was rebutted by evidence, including the 8 July 1974 directors' minute, demonstrating that Aroona retained beneficial ownership until an explicit disposition occurred. The directors' minute of 8 July 1974 constituted an effective note or memorandum in writing under s54A of the Conveyancing Act, evidencing a transaction by which Aroona disposed of its beneficial interest in Piccadilly Gardens to Mrs Killen for satisfaction of indebtedness, and subsequent financial statements confirmed this arrangement. Thus, Mrs Killen was entitled to prove in the liquidation of Rotor-Work for the loan proceeds raised on the property.

Court Disposition

Appeal allowed with costs.

Orders

  • Judgment and orders of Austin J set aside.
  • Respondents to pay appellant's costs in this Court and in the court below; certificate under the Suitors Fund Act 1951 if otherwise qualified.