NSW Caselaw
New South Wales Court of Appeal
CITATION : Hyhonie Holdings Pty. Ltd. & Anor. v. Leroy & Anor. [2004] NSWCA 72 HEARING DATE(S) : 9 March 2004 JUDGMENT DATE : 18 March 2004
JUDGMENT OF : Mason P at 1; Handley JA at 2; Hodgson JA at 3 DECISION : Appeal dismissed with costs.
CATCHWORDS : TRUSTS - Creation - By declaration of trust - Intention to create trust - Onus of proof - Sufficiency of evidence - EVIDENCE - Intention to create trust - Evidence of making of declaration of trust - No evidence of circumstances and no direct evidence of intention - No relevant cross-examination - Whether primary judge in error in not finding intention proved. LEGISLATION CITED : Conveyancing Act 1919 s.23C Abalos v. Australian Postal Commission (1990) 171 CLR 167 Associated Alloys Pty. Ltd. v. CAN 001 452 106 Pty. Ltd. (2000) 202 CLR 588 CASES CITED : Browne v. Dunn (1893) 6 The Reports 6 Commercial Union Assurance Co. of Australia Ltd. v. Ferrcom Pty. Ltd. (1991) 22 NSWLR 389 Lamshed, In Re [1970] SASR 224 T. Choithram Internation SA v. Pagarani [2000] 1 WLR 1 Hyhonie Holdings Pty. Ltd. - 1st appellant PARTIES : Liela Marie Yazbek - 2nd appellant Paul Leroy as trustee of the bankrupt estate of Robert Lewis Yazbek - 1st respondent Robert Lewis Yazbek - 2nd respondent FILE NUMBER(S) : CA 40627/03 Mr. R.J. Powell SC with Mr. J. Potts for appellants COUNSEL : Mr. B. Connell for 1st respondent No appearance for 2nd respondent SOLICITORS : Bowring Stone, Sydney for appellants Clinch Neville Long, Sydney for respondents
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