Chase v Chase [2020] NSWSC 1689

Supreme Court New South Wales

Medium Neutral Citation: Chase v Chase [2020] NSWSC 1689 Hearing dates: 18 September 2020 Date of orders: 20 November 2020 Decision date: 20 November 2020 Jurisdiction: Equity Before: Rein J Decision: See [47] Catchwords: EQUITY – Trusts and trustees – Evidence of trust – Requirement of writing in s 23C(1)(b) of the Conveyancing Act 1919 (NSW) – Where the plaintiff, being a member of the Chase family, sought a declaration that a deregistered company held certain real estate on trust for himself and other members of the family in equal shares (the father of the family having set up the trust structure in 1981) – Where no written document establishing the trust could be located and the plaintiff sought to rely on secondary evidence to prove the existence and terms of the missing trust deed – The secondary evidence included affidavit evidence of oral statements by the father as to the trust's existence and its terms, as well as certain records of the company which indicated that the company held land on trust – Held: the secondary evidence was contradictory and unclear and did not amount to "clear and convincing proof" of the terms of the missing trust deed. The lack of proof as to the trust's terms resulted in a lack of certainty as to the property the subject of the trust, the identity of the beneficiaries and whether the trust was fixed or discretionary, such that the Court was unable to make the declaration sought by the plaintiff. EVIDENCE – Presumptions – Presumption of regularity – The plaintiff sought to rely on the presumption of regularity to overcome the absence of a written document establishing the trust – Held: the presumption of regularity is concerned with formal requirements (such as the absence of a signature on a document), not with substantive issues of the kind that needed to be determined in these proceedings. Legislation Cited: Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Evidence Act 1995 (NSW) Law of Property Act 1936 (SA) Succession Act 2006 (NSW) Trustee Act 1925 (NSW) Cases Cited: A.C.N. 063 346 708 (formerly known as South Passage Pty Ltd), In the matter of [2018] NSWSC 1709 Ali v Ali [2011] NSWSC 261 Anglican Development Fund Diocese of Bathurst v Palmer [2015] NSWSC 1856; (2015) 336 ALR 372 Bokhari v Bokhari [2014] NSWSC 1474 Braema Pastoral Company Ltd v Hutchinson [1993] NSWCA 33 Burnside v Mulgrew; Re the Estate of Grabrovaz [2007] NSWSC 550 Carlow Castle Pty t/a Greenhill Capital Partners v Aztec Resources Ltd [2014] NSWCA 123 City of Burnside v Attorney-General of South Australia (1993) 61 SASR 107; (1993) 81 LGERA 167 Harris v Knight (1890) 15 PD 170 Kingham v Sutton [2002] FCA 506; (2002) 114 IR 137 Knox County v Ninth National Bank [1893] USSC 8; 147 US 91 (1893) Lincu v Krnjulac [2014] NSWSC 532 Mack v Lenton (1993) 32 NSWLR 259 Maks v Maks (1986) 6 NSWLR 34 Marine Investment Company v Haviside (1872) LR 5 HL 624 Massoud v NRMA Insurance Ltd (1995) 62 NSWLR 657 McLean Bros & Rigg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 Minassian v Minassian [2010] NSWSC 708 PM Sulcs v Daihatsu Australia Pty Ltd [2001] NSWSC 636 Pukallus v Cameron [1982] HCA 63; (1982) 180 CLR 447 Re Barp Nominees Pty Ltd [2016] NSWSC 990 Re Thomson [2015] VSC 370 Smith v Matthews (1861) 3 De G F & J 139; 45 ER 831 Sutton v NRS(J) Pty Ltd [2020] NSWSC 826 Termijtelen v Van Arkel [1974] 1 NSWLR 525 Wallersteiner v Moir [1974] 3 All ER 217; [1974] 1 WLR 991 Texts Cited: Butt, Peter, Butt's Land Law (Thomson Reuters, 7th ed, 2017) Heydon, J. D. and M. J. Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016) Ong, Denis, Trusts Law in Australia (The Federation Press, 4th ed, 2012) Category: Principal judgment Parties: Mr Stuart Chase (Plaintiff) Ms Margery Chase (First Defendant) Ms Karen Chase (Second Defendant) Mr Andrew Chase (Third Defendant) The Commonwealth of Australia (Fourth Defendant) Representation: Counsel: Mr R. W. Tregenza (Plaintiff)