I post on behalf of Jordan English:

 

Thanks very much Neil. An interesting case and one that I suspect merits adding to a number of reading lists. Just a few observations below from the judgments. The first two might be seen as ‘wins’ for Bill Swadling, the last is just a minor frustration of mine:   

 

1.      What is presumed in a ‘presumed resulting trust’? An express declaration of trust—Gordon and Edelman JJ explicitly state that ‘what is presumed is a declaration of trust by the person who transfers property, or pays the whole or part of the purchase price of it’ (at [104]). Kiefel CJ and Gleeson J appear to recognise that it arose from a presumption about declaring uses (at [12]) but do not explicitly say that what is being presumed today is an express declaration of trust (though it is arguably implicit). I couldn’t see this particular issue being addressed by Gageler J, though happy to be corrected.

 

2.      Is the presumption of advancement a presumption? No—all justices state that the presumption of advancement is not really a presumption at all but simply a circumstance in which the presumption of a resulting trust (to use loose language) does not apply: Kiefel CJ and Gleeson J at [15], Gageler J at [65], Gordon and Edelman JJ at [115].

 

3.      A complaint: One frustration in the judgment is the many references in Kiefel CJ and Gleeson J’s, and Gageler J’s, judgments to ‘intention’ or ‘actual intention’—at points it is made clear that this means an objectively expressed intention (or ‘objectively manifested intention)—eg at [44] per Gageler J—but elsewhere it is either assumed or suggested that this may be a subjective intention: see eg [32]–[33] where Kiefel CJ and Gleeson J leave open the question as to whether ‘evidence of that person’s thinking at the time might be accepted’. It doesn’t assist in understanding at all. By contrast, Gordon and Edelman JJ helpfully state in their judgment that ‘references to “actual intention” must be understood as the objective manifestation of intention’ (at [111])—and indeed it appears that they avoid the language altogether except where quoting from other judgments.

 

All best,

 

Jordan

 

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)