Byrnes v Kendle [2011] HCA 26

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

MARTIN FRANCIS BYRNES & ANOR APPELLANTS

AND

CLIFFORD FRANK KENDLE RESPONDENT

Byrnes v Kendle [2011] HCA 26

3 August 2011

A23/2010

ORDER

1. Appeal allowed with costs.

2. Orders 1 and 3 of the orders of the Full Court of the Supreme Court of South Australia sealed 20 January 2010 be set aside and in place thereof it be ordered that:

(a) the appeal to the Full Court be allowed with costs; and

(b) the orders of the District Court made on 31 March 2009 and order 1 of the orders made on 22 June 2009 be set aside and in place thereof:

(i) declare that the solicitors for the respondent, Clifford Frank Kendle, be at liberty to account for the moneys held by them in trust pursuant to order 4 of the orders of the District Court made on 11 September 2008 by paying thereout to the first appellant, Martin Francis Byrnes, or as he may direct in writing, the sum of $73,534.70 and by paying the balance to Mr Kendle, or as he may direct in writing;

(ii) order that:

(A) Mr Kendle pay the costs of the appellants on a party and party basis of the trial and all applications filed in the District Court action; and

(B) the action otherwise be dismissed.

On appeal from the Supreme Court of South Australia

Representation

D M J Bennett QC with A L Tokley for the appellants (instructed by Haarsma Lawyers)

M A Frayne SC with N J Floreani for the respondent (instructed by Corsers Lawyers)

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

CATCHWORDS

Byrnes v Kendle

Equity – Trusts and trustees – Express trusts constituted inter vivos – Where respondent by deed declared one half of property held "upon trust" for second appellant – Whether respondent a trustee – Whether evidence extrinsic to deed relevant to intention to create trust.