Strang v Strang [2009] NSWSC 760

Strang v Strang [2009] NSWSC 760

Stanley's 1967 declaration unambiguously manifested an intention to create a trust in favour of Stephen; the trust was not conditional upon future advances nor illegal under the Crown Lands Consolidation Act 1913, and subsequent conduct did not negate the original intention. The right to a vesting order under s 71 Trustee Act 1925 arose only after refusal by the defendant to transfer the property, thus barring neither by limitation nor by laches. The defendant's indemnity claim failed except for certain categories of post-Stanley-death expenses and those the plaintiff conceded.

Jurisdiction
Australia
Judgment Date
05 August 2009
Procedural Posture
Equity / Principal Judgment
Outcome
Plaintiff entitled to a vesting order; cross-claim for indemnity partially successful; costs and some further issues reserved.
Legal Topics
['trusts and Trustees' 'vesting Orders' 'declaration of Trust' 'intention to Create Trust' 'illegality Under Crown Lands Consolidation Act 1913' 'laches' 'limitation Act 1969' 'saunders V Vautier Rule' 'trustee Act 1925' 'powers and Duties of Trustee' 'indemnity Out of Trust Estate']
['equity' 'real Property' 'statutory Interpretation' 'limitation of Actions'] ['trusts and Trustees' 'vesting Orders' 'declaration of Trust' 'intention to Create Trust' 'illegality Under Crown Lands Consolidation Act 1913' 'laches' 'limitation Act 1969' 'saunders V Vautier Rule' 'trustee Act 1925' 'powers and Duties of Trustee' 'indemnity Out of Trust Estate']

Case Brief

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Procedural Posture

Equity / Principal Judgment

Legal Issues

  1. 1 ['Whether a declaration of trust made by Stanley over Crown land in favour of Stephen created an effective and enforceable trust' 'Whether such a declaration was illegal or unenforceable under the Crown Lands Consolidation Act 1913' "Whether the plaintiff's claim for a vesting order is statute-barred by the Limitation Act 1969" 'Whether laches operates as a defence to the claim for a vesting order under s 71 Trustee Act 1925' 'Whether the defendant is entitled to indemnity out of the trust estate for expenses incurred']

Ratio Decidendi

Stanley's 1967 declaration unambiguously manifested an intention to create a trust in favour of Stephen; the trust was not conditional upon future advances nor illegal under the Crown Lands Consolidation Act 1913, and subsequent conduct did not negate the original intention. The right to a vesting order under s 71 Trustee Act 1925 arose only after refusal by the defendant to transfer the property, thus barring neither by limitation nor by laches. The defendant's indemnity claim failed except for certain categories of post-Stanley-death expenses and those the plaintiff conceded.

Court Disposition

Plaintiff entitled to a vesting order; cross-claim for indemnity partially successful; costs and some further issues reserved.

Orders

  • ['Vesting order to be made in favour of plaintiff under s 71 Trustee Act 1925.' 'Plaintiff to bring in short minutes to give effect to the reasons.' 'Defendant entitled to indemnity for post-Stanley death property outgoings as specified and claims conceded by plaintiff.' 'Determination of final costs and any further...