Seeing the Wood for the Trees — Finding the Intention to Create a Trust: Korda v Australian Executor Trustees (SA) Ltd

By Paul Collins

Korda Case Page

Introduction

In a famous literary allusion, du Parcq LJ in Re Schebsman [1944] Ch 83 noted that an intention to create a trust can possibly be created by unguarded language, as in Molière’s Monsieur Jourdain who talked prose without knowing it, although he qualified this by saying that ‘unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the court ought not to be astute to discover indications of such an intention’. In Jessup v Queensland Housing Commission [2001] QCA 312, McPherson JA added at [9] that if the purpose of the settlor was to inspire the poetry of trusts, it was odd that it chose to express itself in common law prose.

This very controversy often arises in the rather prosaic event of insolvency where a party contends that certain assets are not available to creditors because beneficial ownership is vested in a party other than the debtor by reason of a trust. Thus in Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6, the High Court of Australia examined the question whether a trust could be inferred from a contractual relationship. Continue reading

News: Dyson Heydon on the perceived email habits of High Court judges

In his decision yesterday rejecting an application to recuse himself from the Trade Union Royal Commission on the grounds of apprehended bias, Commissioner Dyson Heydon considered whether a reasonable bystander would think (contrary to Heydon’s own assertion) that Heydon would  read all of his email attachments (including one describing the nature of the function he had agreed to speak at.) The ACTU’s counsel, Robert Newlinds SC, argued:

People don’t get appointed to the High Court of Australia unless they are considered truly brilliant lawyers, and what the truly brilliant lawyers have over and above truly ordinary lawyers, they have that special ability to absorb incredibly quickly and distil facts, and an ability to retain facts so absorbed and distilled, so as to fit them into the wider picture of the particular legal problem at hand….  So, the reasonable hypothetical bystander is going to think you’ve read this email.

But the Commissioner countered that the reasonable bystander would have a quite different view of former High Court judges’ reading habits: Continue reading