Schweitzer v Schweitzer

[2012] VSCA 260

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Trusts and Trustees
2. › Express trust
3. › Creation
4. › Intention to create trust
5. › Transfer of real property to parents in consideration of promise to hold on trust
6. › Whether oral promise to hold property on trust enforceable
7. › Property Law Act 1958 (Vic), s 53(1)(b)
1. Trusts and Trustees
2. › Express trust
3. › Writing requirements
4. › Fraud exception
5. › Rule in [name withheld] v [name withheld]
6. › Whether transferee who knows land was transferred on trust may rely on absence of writing
7. › Property Law Act 1958 (Vic), s 53(1)(b), (2)
1. Trusts and Trustees
2. › Resulting trust
3. › Transfer without consideration
4. › No presumption of advancement from child to parent
5. › Whether resulting trust arises on transfer of property by child to parents
1. Evidence
2. › Witnesses
3. › Failure to call witness
4. › Adverse inference
5. › Whether appointment of litigation guardian explains absence from witness box
6. › Whether court under duty to inquire into party's capacity to give evidence

Quick Take

The appointment of a litigation guardian does not of itself explain a party's absence from the witness box or relieve the party of the risk of an adverse inference being drawn from failure to give evidence. The court is not under a duty to make its own inquiries as to a party's capacity to give evidence where the party is represented by a litigation guardian. The fraud exception to s 53(1)(b) of the Property Law Act 1958 (Vic) applies where a transferee who knows land was transferred on trust seeks to deny the trust and claim the land, and the trust so enforced is properly characterised as an express trust.