Abbott v Clark [2006] NSWSC 130

New South Wales Supreme Court

CITATION : Abbott v Clark [2006] NSWSC 130

HEARING DATE(S) : 23 February 2006

JUDGMENT DATE : 23 February 2006

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Resulting trust of property negatived where one third registered proprietor joined in borrowing only as guarantor.

CATCHWORDS : EQUITY [99] – Trusts and trustees – Classification of trusts in general – Implied trusts – Resulting trusts – Where intention presumed – Rebuttal of implication – Intention to benefit – Evidence of common intention.

CASES CITED : Abbott v Clark [2006] NSWSC 111 Calverley v Green (1984) 115 CLR 242

PARTIES : Sylvia Abbott (P) Roy Clark (D)

FILE NUMBER(S) : SC 6464/05

COUNSEL : K J Andronos (P) No appearance (D)

SOLICITORS : MWA Lawyers (P) No appearance (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 23 FEBRUARY 2006

6464/02 SYLVIA ABBOTT v ROY CLARK JUDGMENT 1 HIS HONOUR: This is an unusual case where the plaintiff, a widow, finds herself as joint tenant of a residential property ("the property") with a man who, on the evidence, did her and her late husband a kindness by becoming involved with the property in order to provide a guarantee of the borrowing necessary for them to acquire it. They lost contact with him some 30 years ago and he cannot now be located either in Australia or in the United Kingdom, where it is more likely, on the evidence, that he lives, if still alive. 2 I have already delivered a judgment in which I dispensed with service of the summons in these proceedings on the defendant: Abbott v Clark [2006] NSWSC 111. I did that by reference to evidence of very extensive and thorough searches made by the plaintiff's solicitor to attempt to trace the defendant. Further material has been brought to my attention by way of searches in the most up to date fashion, through the use of the Internet search engine, Google, to locate the defendant. All efforts, however, have proved futile. 3 The facts, which appear from the plaintiff's evidence, are as follows: