Gardiner v Wong

[2026] NSWSC 421

Supreme Court of NSW

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Interrogate

Catchwords

1. Equity
2. › Trusts
3. › Express trusts — three certainties — certainty of intention — oral declaration of trust over land
1. Equity
2. › Trusts
3. › Common intention constructive trust — detrimental reliance — whether trust founded on common intention is express or constructive
1. Real Property
2. › Conveyancing Act 1919 (NSW)
3. › Section 23C — writing requirements for declarations of trust respecting land — resulting implied and constructive trust exception
1. Real Property
2. › Conveyancing Act 1919 (NSW)
3. › Part performance — Rochefoucauld v Boustead fraud exception — unwritten trust

Quick Take

The Court held that the plaintiff failed to establish that the defendant held a Parramatta property on trust for the deceased, whether as an express trust founded on agreement or common intention, or as a common intention constructive trust, because the evidence did not prove the deceased and the defendant shared a common intention that the defendant would hold the property as trustee. The Court also held that adequate provision for the plaintiff's proper maintenance, education and advancement in life had been made by the deceased's will, which divided the residuary estate equally between the two children. The Court noted but did not resolve the question whether a trust founded on common intention is properly characterised as an express trust (per Glass JA in Allen v Snyder) or a constructive trust requiring proof of detrimental reliance (per later authorities including Green v Green and Koprivnjak v Koprivnjak).