Bosanac v Commissioner of Taxation [2022] HCA 34

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN AND GLEESON JJ

BERNADETTE BOSANAC APPELLANT

AND

COMMISSIONER OF TAXATION & ANOR RESPONDENTS

Bosanac v Commissioner of Taxation

[2022] HCA 34

Date of Hearing: 16 August 2022

Date of Judgment: 12 October 2022

P9/2022

ORDER

1. Leave to amend the Notice of Contention refused.

2. Appeal allowed.

3. Set aside the orders of the Full Court of the Federal Court of Australia made on 31 August 2021 and 31 January 2022 and, in their place, order that:

(a) the appeal be dismissed; and

(b) the appellant pay the second respondent's costs.

On appeal from the Federal Court of Australia

Representation

N C Hutley SC with J E Hynes and T L Bagley for the appellant (instructed by Pier Paolo Parisi)

J O Hmelnitsky SC with D P Hume and J S Slack-Smith for the first respondent (instructed by Australian Government Solicitor)

R A Blow for the second respondent (instructed by Cove Legal) – submitting appearance

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

CATCHWORDS

Bosanac v Commissioner of Taxation

Trusts – Resulting trust – Presumption of resulting trust – Presumption of advancement – Where wife purchased property – Where purchase price paid from joint loans taken in names of wife and husband – Where security for joint loans from separately owned properties – Where title registered in name of wife only – Where husband never claimed interest in property – Where property matrimonial home – Where history of separate ownership of assets – Where presumption of advancement precludes presumption of resulting trust from arising – Whether presumption of resulting trust over one half of property in favour of husband – Whether objective intention of wife and husband for husband to have beneficial interest in property – Whether presumption of advancement remains part of general law of Australia.