Secretary, Department of Social Security v Agnew [2000] FCA 59

FEDERAL COURT OF AUSTRALIA

Secretary Department of Social Security v Agnew [2000] FCA 59 SOCIAL SECURITY – Age pension – Assets test – Value of assets to include value of property disposed of within the last five years for no or inadequate consideration – Father registered proprietor of farm land – Father ceases farming and tells children that land is theirs – Children improve farm in belief it is theirs – Whether constructive trust – Time at which constructive trust arises – Value of assets disposed of – Fifteen years after father ceased farming he sells farm to children at market value, waives payment of purchase price and transfers land to them – Whether execution of sale/transfer documents expunges constructive trust.

Social Security Act 1991 (Cth) s 1123, 1124, 1125A

Giumelli v Giumelli (1999) 161 ALR 473 distinguished Bathurst City Council v PWC Properties Pty Ltd (1998) 157 ALR 414 cited Hohol v Hohol [1981] VR 221 considered Muschinski v Dodds (1985) 160 CLR 583 applied Austin v Keele (1987) 61 ALJR 605 cited Grant v Edwards [1986] Ch 638 cited Lloyds Bank Plc v Rosset [1991] 1 AC 107 cited Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 considered Higgins v Wingfield [1987] VR 689 applied Thwaites v Ryan [1984] 1 VR 63 cited Re Jonton Pty Ltd [1992] 2 Qd R 105 cited Zoborg v Commissioner of Taxation (1995) 64 FCR 86 cited Re Sabri; Ex parte Brien v Sabri (1996) 21 Fam LR 213 cited Re Sharpe (a Bankrupt) [1980] 1 WLR 219 cited DHN Food Distributors Ltd v Tower Hamlets LBC [1976] 1 WLR 852 cited Kidner v Department of Social Security (1993) 18 AAR 545 approved Kintominas v Department of Social Security (1991) 103 ALR 82 cited

SECRETARY DEPARTMENT OF SOCIAL SECURITY v DEAN HOWARD AGNEW and ROSEMARY RUTH AGNEW S 55 OF 1999 DRUMMOND, SUNDBERG and MARSHALL JJ 4 FEBRUARY 2000 MELBOURNE