Kauter v Hilton [1953] HCA 95

Ailury The apd Public Tate SOF Bag Began tbe KAUTER AND ANOTHER . 6

HILTON . g : 5 3 '

Appl

Appl ae Cons ka Appl Hie eorens & i feo, BOLE? Tag DEC Re fone patton Pay bid 2000)

200) of Gonmission THALIRKOS. ALD

it 15 Re eee) 3

HIGH COURT (1953.

(HIGH COURT OF AUSTRALIA.)

APPELLANTS ;

Derrenpants, AND

RESPONDENT. PLaIntTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Trust and trustee—Deposits in Savings Bank—Deposits to credit of depositor in

1953. — Sypyry, Dec. 8, 9, 17.

Williams and Fullagar JJ.

trust for named person—Retention of dominion and control—Passbooks— Given by depositor to named person—Named person informed by depositor— Sundry withdrawals and deposits by depositor—Passhooks obtained from and returned to named person—Government bonds—Discussion between depositor and named person—All moneys withdrawn from trust accounts and invested in bonds—Bonds in name of depositor—Receipt therefor handed by him to named person—Inquiry by depositor to have bonds put in name of named person— Death of depositor—Intention to create trust—Claim by named person against depositor's estate—Statute of Frauds (29 Car. 2, c. 3), 8

Equity will only enforce a trust to the extent to which the intention to create a trust is clear. But this does not mean that a plaintiff who seeks to prove too wide a trust must fail altogether. The court may hold that a less extensive trust has been established than that claimed and in such a case that which has been established will be enforced.

Where a person not only opens an account but hands the passbook to the purported beneficiary and thereafter consults that beneficiary on the basis that the latter is the beneficial owner of the moneys or of some interest in them, the evidence tends strongly towards establishing that the depositor

intended to create an immediate trust in favour of that other person. The