Napier v Public Trustee (Western Australia)
32 ALR 1531980 - 1111A - HCA
(Judgment by: Gibbs ACJ)
Between: Napier
And: Public Trustee (Western Australia)
Judges:
Gibbs ACJMason J
Murphy J
Aickin J
Wilson J
Subject References:
Trusts
Resulting trust
Family law
De facto relationship
Judgment date: 11 November 1980
Canberra
Judgment by:
Gibbs ACJ
I have had the advantage of reading the reasons for judgment prepared by my brother Aickin, and subject to one reservation I am in agreement with them.
It was not suggested on behalf of the respondent in the present case that there is a presumption of advancement when a man purchased property in the name of a woman to whom he is not married but with whom he is living in a permanent de facto relationship as man and wife. The authorities support the view that no presumption of advancement arises in those circumstances, although there are some cases that may appear to provide support for a submission to the contrary: see Murdock v Aherne (1878) 4 VLR (E) 244 at 249, which is cited in Wirth v Wirth (1956) 98 CLR 228 at 238, and see also the discussion in Carkeek v Tate-Jones [1971] VR 691 at 695-6. It is not necessary for present purposes to consider whether it would be right, having regard to the changed attitudes of society, which are so different from those which prevailed in the nineteenth century when Rider v Kidder (1805) 10 Ves Jun 360; 32 ER 884 and Soar v Foster (1858) 4 K & J 152; 70 ER 64 were decided, to make a presumption of advancement in such a case, and, if so, whether the law is sufficiently flexible to permit that to be done. I would treat those questions as open ones.
However, where evidence has been given as to the intentions with which the parties effected the transaction, it is unlikely that the question whether or not there is a presumption of advancement will be important, or at least decisive: cf per Lord Hodson in Pettitt v Pettitt [1969] 2 All ER 385 ; [1970] AC 777 at 811. For if there is a presumption, it is only prima facie, and evidence may be given to rebut it: Stewart Dawson & Co (Vic) Pty Ltd v FC of T (1933) 48 CLR 683 at 690-1; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 364-5. The evidence in the present case clearly showed that the appellant did not intend, at the time when he made the purchase, that Mrs Evans should take any beneficial interest other than a life interest in the house which he caused to be put into her name, and that it was expressly agreed between the parties that Mrs Evans was to be entitled to the rents and bound to pay the outgoings only until she died. If there was a presumption of advancement in the circumstances, it was rebutted except in relation to Mrs Evans' beneficial life interest.
It was submitted on behalf of the respondent that the learned Chief Justice made a finding of fact which should not be disturbed, and which was inconsistent with the conclusion that there was a resulting trust in favour of the appellant. However, the primary facts are not in dispute, and this court is in as good a position as the trial judge to decide what inferences should be drawn from them. The fact that it was agreed that Mrs Evans would make a codicil leaving the house to the appellant, or if he had died to his sons, did not, as was thought in the Supreme Court, show that it was intended that she should be the absolute beneficial owner; it showed no more than that it was intended that she should have the legal estate. I need add nothing to what my brother Aickin has said on this aspect of the matter.
The proper conclusion on the evidence was that there was a resulting trust for the appellant of an interest in remainder in the property. In the events that have happened the appellant is now beneficially entitled to the property absolutely. It is accordingly unnecessary to consider the alternative argument that there was a constructive trust.
I would allow the appeal.