Abbott v Clark [2006] NSWSC 130

Abbott v Clark [2006] NSWSC 130

Although the defendant's participation in the joint borrowing would otherwise raise a resulting trust interest in his favour, the evidence showed a common intention that he acted only to assist as guarantor and was not to take any beneficial interest; therefore the whole beneficial interest was held for the plaintiff.

Jurisdiction
Australia
Judgment Date
23 February 2006
Procedural Posture
Equity Proceeding Concerning an Alleged Resulting Trust of Residential Property / Judgment
Outcome
Resulting trust interest in favour of the defendant negatived; the property was held in trust by the plaintiff and defendant for the plaintiff alone.
Legal Topics
['resulting Trusts' 'implied Trusts' 'rebuttal of Presumed Resulting Trust' 'common Intention' 'beneficial Interest in Property']
['equity' 'trusts'] ['resulting Trusts' 'implied Trusts' 'rebuttal of Presumed Resulting Trust' 'common Intention' 'beneficial Interest in Property']

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Procedural Posture

Equity Proceeding Concerning an Alleged Resulting Trust of Residential Property / Judgment

Legal Issues

  1. 1 ['Whether the defendant, who was registered as a joint tenant and joined in the borrowing for the purchase of the property, held a beneficial interest by resulting trust.' 'Whether any presumed resulting trust in favour of the defendant was rebutted by evidence of a contrary common intention.']

Ratio Decidendi

Although the defendant's participation in the joint borrowing would otherwise raise a resulting trust interest in his favour, the evidence showed a common intention that he acted only to assist as guarantor and was not to take any beneficial interest; therefore the whole beneficial interest was held for the plaintiff.

Court Disposition

Resulting trust interest in favour of the defendant negatived; the property was held in trust by the plaintiff and defendant for the plaintiff alone.

Orders

  • ['A trust should be declared by the Court.' 'Appropriate ancillary orders should be made to effect the vesting of the whole of the legal title of the property in the plaintiff.']