Clay v Clay [2001] HCA 9

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, HAYNE AND CALLINAN JJ

JEANETTE RAMONA CLAY APPELLANT

AND

MARK GREGORY CLAY & ORS RESPONDENTS

Clay v Clay [2001] HCA 9

15 February 2001

P52/2000

ORDER

1. Appeal allowed. 2. First respondents to pay the costs of the appellant. 3. Set aside paragraphs 1, 2 and 4 of the orders of the Full Court of the Supreme Court of Western Australia made on 28 July 1999 and in lieu of paragraph 2 order that the appeal be and is hereby dismissed.

4. Questions of costs of the proceedings in the Full Court of the Supreme Court of Western Australia remitted to the Full Court of the Supreme Court of Western Australia to be determined in a manner consistent with the reasons for judgment of this Court.

On appeal from the Supreme Court of Western Australia

Representation:

C J L Pullin QC with M H Zilko for the appellant (instructed by Durack & Zilko)

M G Clay for the first-named first respondent and first-named second respondent (appeared in person) and appeared for the second and third-named first respondents

No appearance for the second and third-named second respondents

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Clay v Clay

Equity – Fiduciary duty – Guardian of infant children purchased asset at market value from unadministered estate of infants' deceased father – Children were residuary beneficiaries of that unadministered estate – Children sought rescission of sale 21 years later – Whether claim barred by Limitation Act 1935 (WA) – Whether guardian a trustee of an "express trust" – Whether guardian in breach of fiduciary duty in making purchase.

Equity – Express trust – Whether fiduciary in whom title is not vested is an "express trustee" of property.

Words and phrases – "express trust".