Cockburn v Coburn [2005] NSWSC 993

New South Wales Supreme Court

Cockburn v Coburn [2005] NSWSC 993 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 19 & 20 May and 11, 15 & 19 July 2005

JUDGMENT DATE : 30 September 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : That a constructive trust be declared.

CATCHWORDS : EQUITY [103] - Trusts and trustees - Constitution and classification of trusts in general - Implied trusts - Constructive trusts - Independent of intention - Particular cases - Mother transfers titles of land to son to facilitate borrowing by him on the basis that he will retransfer titles to her when mortgages discharged.

LEGISLATION CITED : Real Property Act 1900 ss 93 & 96

Birmingham v Renfrew (1937) 57 CLR 666 Last v Rosenfeld [1972] 2 NSWLR 923 Ogilvie v Ryan [1976] 2 NSWLR 504 CASES CITED : Rochefoucauld v Boustead [1897] 1 Ch 196 The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Jacobs' Law of Trusts in Australia (6th ed, 1997) [1301], [2104], [2105]

Alma Jean Cockburn (P) PARTIES : Diana Margaret Coburn (D & XC) Gary Cockburn (XD)

FILE NUMBER(S) : SC 1735/04

I D Faulkner SC and L W F Chan (P & XD) COUNSEL : D A Smallbone and C A Franklin (D & XC)

Warren McKeon Dickson (P & XD) SOLICITORS : M J Woods & Co (D & XC)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 30 SEPTEMBER 2005

1735/04 ALMA JEAN COCKBURN v DIANA MARGARET COBURN JUDGMENT 1 HIS HONOUR: ISSUES 2 These proceedings concern three blocks of land at Bateman's Bay on the South Coast of New South Wales being Lots 52, 53 and 54 Wharf Road, Surfside ("the subject property"). Prior to the events recounted below the registered proprietor was the plaintiff Alma Jean Cockburn. The present registered proprietor is her son Brian Manners (also known as Brian Manners-Cockburn and Brian Cockburn) ("Brian"), who died on 8 March 2002. The defendant is his widow and administrator, Diana Margaret Coburn. The plaintiff alleges that the title passed from mother to son in circumstances which created either a contractual obligation in the son to retransfer the subject property to the plaintiff or led to it being held by him (and therefore by the defendant) on constructive trust for the plaintiff. The plaintiff's other son, Gary Cockburn ("Gary"), lives and has lived for many years on the subject property. The defendant by cross claim claims his removal from the land by judgment for possession. 3 The issues have been agreed between the parties as follows: