Pascoe v Boensch [2008] FCAFC 147

Pascoe v Boensch [2008] FCAFC 147

The Court found that, upon proper construction of the Memorandum of Trust and taking into account the context and circumstances of its making, there was an actual present intention to create a fixed trust over the Rydalmere property for the benefit of the two children. The description of the subject matter, the identification of beneficiaries, and the fact of writing and signature together met the requirements for a valid trust under the general law and s 23C(1)(b) and (c) of the Conveyancing Act 1919 (NSW). There was no error in the Federal Magistrate's conclusion that a valid trust was constituted, and the appeal was dismissed.

Parties
Appellant: Scott Darren Pascoe; First Respondent: Franz Boensch; Second Respondent: Sabine Boensch
Jurisdiction
Australia
Judgment Date
18 August 2008
Procedural Posture
Appeal / On Appeal From the Federal Magistrates Court of Australia Reasons for Judgment
Outcome
Appeal dismissed
Legal Topics
Express Trusts, Certainty of Intention, Certainty of Object, Requirement of Writing, Bankruptcy and Disposition of Interests
Equity Trusts Bankruptcy Express Trusts Certainty of Intention Certainty of Object Requirement of Writing Bankruptcy and Disposition of Interests

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Parties

Scott Darren Pascoe

Appellant

Franz Boensch

First Respondent

Sabine Boensch

Second Respondent

Procedural Posture

Appeal / On Appeal From the Federal Magistrates Court of Australia Reasons for Judgment

Legal Issues

  1. 1 Whether the Memorandum of Trust dated 23 August 1999 constituted a valid declaration of trust over the Rydalmere property
  2. 2 Whether there was certainty of intention and object sufficient to create a fixed express trust
  3. 3 Whether requirements of s 23C(1)(b) and (c) of the Conveyancing Act 1919 (NSW) were met

Ratio Decidendi

The Court found that, upon proper construction of the Memorandum of Trust and taking into account the context and circumstances of its making, there was an actual present intention to create a fixed trust over the Rydalmere property for the benefit of the two children. The description of the subject matter, the identification of beneficiaries, and the fact of writing and signature together met the requirements for a valid trust under the general law and s 23C(1)(b) and (c) of the Conveyancing Act 1919 (NSW). There was no error in the Federal Magistrate's conclusion that a valid trust was constituted, and the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • The appeal be dismissed.
  • The appellant pay the respondents' costs of the appeal.