Woo & Anor v Woo [2010] NSWSC 1216

New South Wales Supreme Court

CITATION : Woo & Anor v Woo [2010] NSWSC 1216 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 12, 13 and 14 October 2010

JUDGMENT DATE : 22 October 2010

JUDGMENT OF : Bryson AJ at 1

DECISION : Judgment for the defendant with costs.

CATCHWORDS : TRUST - implied constructive and resulting trusts - plaintiffs (mother and sister of defendant) claimed on several bases that trusts, not evidenced in writing, and an equitable mortgage by deposit of deeds, arose from conversations at various times from 1988 to 2003 over home of which defendant is registered proprietor: on consideration of evidence in detail of numerous events, these claims failed on the facts. - LIMITATION OF ACTIONS - consideration of standing of defendant's affidavit as acknowledgement and confirmation under s54 of Limitations Act 1969 - as the affidavit was made after expiry of 12 year limitation on claim for conversion of trust money it was not available as acknowledgement - expression of doubt whether affidavit evidence can be an acknowledgment.

Limitation Act 1623 Limitation Act 1969 LEGISLATION CITED : Lord Tenterden's Act 1829 (Imp) Property Law Act 1928 (Vic) Written Memorandum Act 1834

CATEGORY : Principal judgment

Baumgartner v Baumgartner (1987) 164 CLR 137 Blair v Nugent (1846) 3 Jo & Lat 658 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Brown (1993) 31 NSWLR 582 Browne v Dunn (1893) 6 R 67 (HL) Chidiac v Maatouk [2010] NSWSC 386 CASES CITED : Duncan v Mendes [1998] NSWCA 278 General Credits Ltd v Wenham (1989) 18 NSWLR 570 Hipworth v Mahar (1952) 87 CLR 335 Marks v Roads & Traffic Authority of New South Wales (2004) Aust Torts Reports 81-732; [2004] NSWCA 43 Muschinski v Dodds (1985) 160 CLR 583 Spencer v Hemmerde [1922] 2 AC 507 The Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535 Young v Queensland Trustees Ltd (1956) 99 CLR 560