Antill v Mostyn [2010] NSWSC 587

New South Wales Supreme Court

CITATION : Antill v Mostyn [2010] NSWSC 587 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 13 and 14 May 2010

JUDGMENT DATE : 4 June 2010

JURISDICTION : Equity Division

JUDGMENT OF : Bryson AJ

1. Declare that the defendant holds the property known as 46 Adelaide Street, Bondi Junction, Lot 1 Deposited Plan 203349 being the land in Certificate of Title Folio Identifier 1/203349 on trust for the plaintiff. DECISION : 2. Order that the defendant transfer the land in Certificate of Title Folio Identifier 1/203349 to the plaintiff. 3. Reserve further consideration of claims 5, 6, 7, 8, 9 and 10 in the Statement of Claim. 4. Reserve further consideration of costs

CATCHWORDS : TRUSTS AND TRUSTEES - liability of trustees - Chapman (plaintiff's grandfather) left half his estate to Chapman Trust to provide his daughter Mrs Nisbet with income for life remainder to her descendents - Chapman died in 1937, Mrs Nisbet became one of the trustees in 1953, sole trustee after deaths of others in 1960 and died in 2008 - Mr Antill her only child succeeded in remainder - challenge to Mrs Nisbet's investments and conduct of trust affairs - loans to herself were misappropriations - Mrs Nisbet acknowledged in 1983 that the assets were in her house - consideration of sufficiency of writing under s 23C of Conveyancing Act - her house was found to be subject to the trust and its proceeds were traced into second house which she bought in 1995 after selling earlier house - HELD that Mr Antill as remainderman was equitable owner of second house - Extensive consideration of facts