Byrnes
vKendle

Judges: French CJ
Gummow J
Hayne J
Heydon J
Crennan J

Subject References:
Acquiescence
bare trust
consent
estoppel
express trust
in-tention
upon trust

Legislative References:
Law of Property Act 1936 (SA) - s 29(1)(b); s 41
Trustee Act 1936 (SA) - s 6; s 7; s 8; s 25A; s 25C

Order

1. Appeal allowed with costs.

2. Orders 1 and 3 of the orders of the Full Court of the Supreme Court of South Australia sealed 20 January 2010 be set aside and in place thereof it be ordered that:

(a)

the appeal to the Full Court be allowed with costs; and

(b)

the orders of the District Court made on 31 March 2009 and O 1 of the orders made on 22 June 2009 be set aside and in place thereof:

(i)

declare that the solicitors for the respondent, Clifford Frank Kendle, be at liberty to account for the moneys held by them in trust pursuant to O 4 of the orders of the District Court made on 11 September 2008 by paying thereout to the first appellant, Martin Francis Byrnes, or as he may direct in writing, the sum of $73,534.70 and by paying the balance to Mr Kendle, or as he may direct in writing;

(ii)

order that:

(A)

Mr Kendle pay the costs of the appellants on a party and party basis of the trial and all applications filed in the District Court action; and

(B)

the action otherwise be dismissed.

Counsel for the appellants: D M J Bennett QC with A L Tokley

Counsel for the respondent: M A Frayne SC with N J Floreani

Solicitors for the appellants: Haarsma Lawyers

Solicitors for the respondent: Corsers Lawyers