EX TEMPORE REASONS FOR JUDGMENT

The Trustee has satisfied me that there is a serious question to be tried as to whether the sums of $410,000 and $150,000, which contributed to the purchase price of the Beaumont property, belonged to Mr Fuller.  However, on the assumption that the Trustee establishes that those sums did belong to Mr Fuller, the Trustee has not satisfied me that there is a serious question as to whether Mrs Fuller held the property as constructive trustee for the Trustee, as claimed in the application.  In the absence of any evidence on the point, the presumption of advancement would apply to the provision of the money by Mr Fuller.  The equitable estate would follow the legal estate and both would reside in Mrs Fuller. 

Such evidence as there is supports the presumption.  Mrs Fuller says that her husband purchased the property as a gift to her in the light of the length of their marriage and the fact that she had earlier lent him money so that he could keep alive a business venture.  I was not asked to disbelieve this evidence and I do not do so.  But even if I did disbelieve it, the presumption of advancement would still operate to cause the equitable interest in the land to travel with the legal interest unless the presumption could be rebutted.  The matter must of course be tested in 1986 when the property was purchased.  There is nothing in the material before me which suggests that the parties' actual intention was that Mrs Fuller would hold the land on trust - a resulting trust - for her husband.

In the absence of such material, the presumption prevails.  No attempt was made by the Trustee to establish the existence of a constructive trust in the strict sense, that is to say, as distinct from a resulting trust.  As I have said, there is no evidence of a common intention that the wife should hold the property on trust for the husband.  Such evidence as there is is to the contrary.  Nor has it been suggested that the wife has been guilty of unconscionable conduct such as would give rise to a constructive trust.  For those reasons I am not satisfied that the Trustee has established that there is a serious question to be tried that the Trustee had an equitable interest in the land or now has an interest in the balance of the proceeds of sale.

The application for a continuation of the injunction initially granted ex parte by Lindgren J and continued by later orders is dismissed.  I will dissolve the subsisting injunction which was to have remained in force until 5 pm today.

Associate:

Dated:              18 June 1997