NSW Caselaw
Reported Decision : 52 NSWLR 492
New South Wales Court of Appeal
CITATION : Damberg v Damberg & Ors [2001] NSWCA 87 FILE NUMBER(S) : CA 40636/99 HEARING DATE(S) : 3 April 2001 JUDGMENT DATE : 25 May 2001
Wilfried Robert Damberg (Appellant) PARTIES : Bruenhild Damberg (First Respondent) Oliver Damberg (Second Respondent) Nicole Damberg (Third Respondent) JUDGMENT OF : Spigelman CJ at 1; Sheller JA at 2; Heydon JA at 3
LOWER COURT JURISDICTION : Family Court of Australia LOWER COURT PA 4703/98 FILE NUMBER(S) : LOWER COURT Purdy J JUDICIAL OFFICER :
COUNSEL : Mr P L G Brereton SC (Appellant) Mr L P Robberds QC/Mr J A Trebeck (Respondents) Campbell Paton & Taylor (Appellant) SOLICITORS : Wilson Fardell & Moore (First Respondent) Garden & Montgomerie (Second and Third Respondents) CATCHWORDS : Equity - Implied Trusts - Resulting trusts - Whether rebuttal of presumption of advancement from parent to child of equitable interest in property in addition to legal title - Whether parent possessed "definite intention" to retain beneficial interest - Application of general law of evidence to determine whether "definite intention" proved - Conflict of Laws - Breach of foreign law - Whether Australian Courts will prevent party from enforcing in Australia a resulting trust created in a foreign jurisdiction for a purpose that was "illegal" or "unlawful" in that foreign jurisdiction - Identification of "illegal" or "unlawful" purpose - Necessity to examine provisions of foreign legislation - Ascertainment of "policy" of legislation - Where foreign jurisdiction is Germany - Where foreign law relates to capital gains tax avoidance or evasion - Conflict of Laws - Presumption of identity of unproved foreign law and the lex fori - Whether such presumption should be made - Where foreign jurisdiction is Germany - Where relevant unproved foreign law is likely to be statute-based - Where relevant unproved foreign law relates to capital gains tax avoidance and evasion - Where taxation law is not an area of law that is based on broad principles that can be assumed to be part of any given legal system - D CASES CITED: See attached list DECISION : See para 200
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