Wood v Shee [2007] NSWSC 227

New South Wales Supreme Court

CITATION : Wood v Shee [2007] NSWSC 227

HEARING DATE(S) : 14 March 2007

JUDGMENT DATE : 14 March 2007

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Trust interest in whole fund declared in favour of one co-owner of bank account.

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 130

Jemima Wood (P) PARTIES : Nerada Shee (D1) Community Alliance Credit Union Limited (D2)

FILE NUMBER(S) : SC 5900/06

COUNSEL : A Horvath (P) No appearance (Ds)

SOLICITORS : DLA Lawyers (P) No appearance (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 14 MARCH 2007

5900/06 JEMIMA WOOD v NERADA SHEE & ANOR JUDGMENT 1 HIS HONOUR: In this matter the defendant does not appear. An order for substituted service has been made and it has been proved that the terms of that order have been carried out. 2 The proceedings concern the beneficial ownership of an account with the Community Alliance Credit Union Ltd ("the Credit Union"). The account is in the joint names of the plaintiff and the defendant, Nerada Shee. The evidence shows that the sum of $20,000, which was the sole deposit made to the account, was of a cheque in favour of the plaintiff from the Public Trustee in respect of her mother's estate and the money was deposited in a joint account to protect it from access by the plaintiff's then partner. The evidence shows that the defendant has no beneficial interest in the money. The facts have a general similarity to those I considered in Abbott v Clark [2006] NSWSC 130. 3 The terms of the account are that both parties are to sign any withdrawal, which the defendant has refused to do. The Credit Union therefore feels unable to release the money to the plaintiff or to change the name of the account, so that it is held solely by the plaintiff. But it has, by facsimile dated 18 May 2006 to the plaintiff's solicitors, in effect invited the obtaining of an order requiring the payment of the $20,000 to the plaintiff. 4 In these circumstances, I propose to allow the summons to be amended to join the Credit Union as a second defendant and, without any further notice to the second defendant, to make orders declaring the plaintiff the sole beneficial owner of the funds in the account and ordering the second defendant to pay the proceeds of the account to the plaintiff. I shall order that the first defendant pay the plaintiff's costs of the proceedings.