Fysh v Page [1956] HCA 13

High Court of Australia Dixon C.J. Webb, Fullagar and Kitto JJ. Fysh v Page [1956] HCA 13

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 13 Dixon C.J., Webb and Kitto JJ.

On 10th October 1941 the respondent Page became a purchaser for the price of £4,600 of a farm near New Norfolk containing about 2,814 acres. The vendor was one Terry who described himself in the contract as trustee of the estate of the late C. W. Fysh. Fysh had died on 26th July of the same year leaving a will by which he appointed both the respondent Page and Terry his trustees and executors. He devised and bequeathed all his property to them in trust for his wife for her absolute use and benefit. At the time of the sale by Terry to Page the will had not been proved. Page by deed poll dated 14th November renounced probate and disclaimed the trust and Terry thereupon proved the will as sole executor. On 10th April 1942 Terry assented to the devise in favour of the widow and on 10th May 1942 she completed the sale to Page by conveying the property to him. Page had already entered into possession of the farm and apparently ever since he has continued in occupation. Thirteen years later, by a writ issued on 26th August 1954, the widow commenced against the respondent Page the suit out of which this appeal arises. She claimed a declaration that Page was trustee of the property for her at the time of the purchase and had remained so and that the purchase was inoperative; she further claimed a decree setting aside the purchase as an unconscionable and inequitable transaction and an order for accounts and inquiries.

The suit was heard by Morris C.J. who entered judgment for the defendant, determining that the purchase should not be set aside and that Page, the defendant, was not a constructive trustee for Mrs. Fysh, the plaintiff. From that judgment she now appeals to this Court.