The Court granted judicial advice under s 63 of the Trustee Act 1925 (NSW) that the executor was justified in distributing the net sale proceeds of estate property to a third party on the basis that a common intention constructive trust existed, where the evidence showed the third party and her deceased partner funded the purchase price on the understanding the property would be returned to them. The Court accepted that contemporaneous documentary evidence (emails, solicitor correspondence, the deceased's 2010 will) strongly supported the common intention, and that later statements by the deceased characterising the property as a 'gift' should be given little weight given the deceased's lack of legal sophistication and changed personal circumstances. The Court expressly noted but did not resolve the open question whether common intention constructive trusts survive as a separate doctrine from proprietary estoppel in Australian law.
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