Damberg v Damberg & Ors [2001] NSWCA 87

Damberg v Damberg & Ors [2001] NSWCA 87

The trial judge was entitled on the evidence to find the presumption of advancement rebutted; the husband intended to retain the beneficial interest in the properties. The children’s argument that the trust was unenforceable due to tax avoidance failed because no evidence was led as to relevant German law, and, if a condition for payment of foreign taxes was imposed, it would constitute impermissible enforcement of a foreign revenue law. Payments to parents were not established as loans or gifts, and the quantum meruit claim by the son failed after proper notice of non-acceptance of services. Orders in the Family Court unsupported by law should be set aside.

Parties
Appellant: Wilfried Robert Damberg; First Respondent: Bruenhild Damberg; Second Respondent: Oliver Damberg; Third Respondent: Nicole Damberg
Jurisdiction
Australia
Judgment Date
25 May 2001
Procedural Posture
Appeal / Judgment After Hearing of Appeal From Family Court/supreme Court Cross Vested Jurisdiction
Outcome
Appeal allowed; orders of Purdy J set aside; respondents' applications dismissed
Legal Topics
Implied Trusts, Resulting Trusts, Presumption of Advancement, Foreign Law, Tax Avoidance, Illegality in Trusts, Quantum Meruit
Equity Conflict of Laws Implied Trusts Resulting Trusts Presumption of Advancement Foreign Law Tax Avoidance Illegality in Trusts +1 more

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Parties

Wilfried Robert Damberg

Appellant

Bruenhild Damberg

First Respondent

Oliver Damberg

Second Respondent

Nicole Damberg

Third Respondent

Procedural Posture

Appeal / Judgment After Hearing of Appeal From Family Court/supreme Court Cross Vested Jurisdiction

Legal Issues

  1. 1 Whether the presumption of advancement from parent to child regarding German property transfers was rebutted and a resulting trust found for the appellant
  2. 2 Whether the appellant’s avoidance of German capital gains tax disentitled him from enforcing a resulting trust in Australia
  3. 3 Whether payments made by the children to the parents were loans, gifts, or otherwise

Ratio Decidendi

The trial judge was entitled on the evidence to find the presumption of advancement rebutted; the husband intended to retain the beneficial interest in the properties. The children’s argument that the trust was unenforceable due to tax avoidance failed because no evidence was led as to relevant German law, and, if a condition for payment of foreign taxes was imposed, it would constitute impermissible enforcement of a foreign revenue law. Payments to parents were not established as loans or gifts, and the quantum meruit claim by the son failed after proper notice of non-acceptance of services. Orders in the Family Court unsupported by law should be set aside.

Court Disposition

Appeal allowed; orders of Purdy J set aside; respondents' applications dismissed

Orders

  • Orders 1 and 2 of Purdy J set aside
  • Judgment for appellant and first respondent against second and third respondents