Pulham v Delaney

[2008] NSWSC 1231

CITATION:	Pulham v Delaney [2008] NSWSC 1231
HEARING DATE(S):	20 November 2008
JUDGMENT DATE :	20 November 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Declarations that plaintiff entitled to whole of property.
CATCHWORDS:	EQUITY [99] – Trusts and trustees – Classification of trusts in general – Implied trusts – Resulting trusts – Where intention presumed – Not in favour of de facto spouse - Rebuttal of implication – Evidence re intention of now deceased transferee.
CATEGORY:	Principal judgment
CASES CITED:	Charles Marshall Proprietary Limited v Grimsley (1956) 95 CLR 353 Napier v Public Trustee (WA) (1980) 55 ALJR 1
PARTIES:	Ella Eden Pulham (P) Betty Delaney (D1) Eric Roberts (D2)
FILE NUMBER(S):	SC 4802/08
COUNSEL:	R D Wilson (P) No appearance (Ds)
SOLICITORS:	Wood Marshall Williams (P) No appearance (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 20 NOVEMBER 2008

4802/08 ELLA EDEN PULHAM v BETTY DELANEY & ANOR

JUDGMENT

1 HIS HONOUR: This is the ex parte hearing of a summons for declarations concerning entitlement to a property at Tuncurry (“the property”). The plaintiff is the daughter of the late John Palmer, who died on 1 July 1982. She was, on 19 January 1983, granted probate of his will made on 23 January 1978.

2 The property is the land in Certificate of Title Volume 9258 Folio 189. That certificate of title shows Ruth Roberts and Ella Eden Pulham as tenants in common in equal shares of the property. Prior to 24 September 1964 John Palmer was the sole registered proprietor of the property. By a transfer signed on that day and registered J851966 he transferred a one half share as tenant in common to Ruth Roberts. The evidence shows that Ruth Roberts was his de facto wife. The plaintiff received her one half share by transmission in 1984 to her as executrix of John Palmer’s remaining one half share.

3 A de facto spouse did not, in 1964, have the benefit of a presumption of advancement: Napier v Public Trustee (WA) (1980) 55 ALJR 1. The consideration for the transfer was expressed to be one pound. Not having given value for the estate transferred to her, prima facie Ruth Roberts held her one half share of the property, when transferred to her on a resulting trust in favour of John Palmer, the transferor. Furthermore, there is no evidence to rebut the presumption of resulting trust to the effect that John Palmer intended a gift of that share to Ruth Roberts. What evidence there is is to the contrary of an intention of gift since Ruth Roberts, in 1966, after the transfer had been effected, said, “Only the furniture is mine, the house belongs to your father”. As this statement was a declaration against interest by a party to the relevant transaction, it is admissible in evidence: Charles Marshall Proprietary Limited v Grimsley (1956) 95 CLR 353 at 365.

4 Ruth Roberts, in fact, died in 1967. The evidence, therefore, shows that at the time of his death John Palmer was the beneficial owner of the whole of the Tuncurry property.

5 In those circumstances the plaintiff is entitled to the declarations that she seeks, including a declaration that, in the events which have occurred, the plaintiff is entitled to have registered in her name the whole of the land in the relevant certificate of title.

6 The service of the amended summons has been effected on Betty Delaney and Eric Roberts, who were children of Ruth Roberts. They have not appeared at the hearing and there is evidence that they have disclaimed any interest in the property. In those circumstances I shall make declarations as sought by the plaintiff.

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