DAY v. COUCH [2000] NSWSC 230

New South Wales Supreme Court

CITATION : DAY v. COUCH [2000] NSWSC 230 revised - 18/04/2000 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1789/98 HEARING DATE(S) : 7-10/2/00 JUDGMENT DATE : 27 March 2000

PARTIES : William Ross Day - Plaintiff Geoffery James Couch - Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : C. Harris - Pltf; J. Viney - Dft SOLICITORS : Mark Mulock & Co. - Plaintiff Geoffrey Couch - Defendant CATCHWORDS : TRUSTS and TRUSTEES - resulting trust where transfer without consideration - plaintiff transferred his house to his father (now deceased) for expressed consideration of $55,000 and now claimed that the true arrangement was a transfer without consideration to conceal assets if plaintiff should become bankrupt - the plaintiff succeeded on findings of fact upholding his case after lengthy consideration of facts and circumstances of dealings within the family over almost 40 years - decision on fact - consideration of - approach to facts where claim is made against estate of deceased person - illegality where the illegal purpose was not acted on. LEGISLATION CITED : (NSW) Conveyancing Act 1919 s37A Plunket v Bull (1915) 19 CLR 544 Birmingham v Renfrew (1937) 57 CLR 666 Grundel v The Registrar General (1990) BPR 97-340 Charles Marshall Pty Ltd v. Grimsley (1956) 95 CLR 353 Re Cummins (dec'd); Cummins v. Thompson [1972] 1 Ch 62 CASES CITED : Martin v. Martin (1959) 110 CLR 297 Nelson v. Nelson (1995) 184 CLR 538 Tinsley v. Milligan [1994] 1 AC 340: Lowson v. Coombes [1999] Ch 373 Payne v. McDonald (1908) 6 CLR 208 Perpetual Executors & Trustees Association of Australia Ltd v. Wright (1917) 23 CLR 185 DECISION : See para.89