BROWN v BROWN [1993] NSWCA 38

BROWN v BROWN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and CRIPPS JA 28 July 1993, 29 September 1993

[1993] NSWCA 38

TRUSTS — resulting trust — presumption of advancement — whether applicable to gifts by mother to sons — held: Applicable but (by maj) presumption rebutted by evidence. Dullow v Dullow & Anor (1985) 3 NSWLR 531 (CA) applied.

TRUSTS — resulting trust — contribution to purchase of property — held: Resulting trust in proportion to contributions to purchase price of property upheld.

PRACTICE & PROCEDURE — Court of Appeal — new grounds not argued below — whether pure point of law — whether additional evidence necessary — held: Argument permitted.

TRUSTS — implied trusts — presumption of intention — contribution by two or more persons to the purchase property conveyed to them gives rise to the equitable presumption that they hold the legal estate in trust for themselves as tenants in common, in shares proportionate to their contributions.

In 1958 a widowed mother, with two adult sons and two adult daughters, contributed almost half of the purchase price of a dwelling house in which the family went to live. Title to the house was taken in the name of the sons. Many years later there was a dispute as to beneficial ownership. The trial judge found on the evidence that the mother had no intention of making a gift to her sons, or of allowing them to have the whole beneficial ownership of the land. He rejected the sons' evidence that there was an agreement under which the mother was to be allowed to live in the house during her life but they were to be the full owners of it. In those circumstances the trial judge applied the presumption of a resulting trust and held that the mother had a beneficial interest in the land proportionate to her contribution to the purchase price.