(New South Wales) The Board was asked whether an abstract of title was good because it appeared from the abstract that there had been a purchase by a trustee without full consent or release from the beneficiaries.
Held: The purchase of trust property by a trustee is not permitted except with the consent of the court or pursuant to an express power: ‘It is important to remember upon whom the onus of proof falls. It ought not to be assumed, in the absence of evidence to the contrary, that the transaction was a proper one, and that the cestui que trusts were informed of all necessary matters. The burthen of proof that the transaction was a righteous one rests upon the trustee, who is bound to produce clear affirmative proof that the parties were at arm’s length; that the cestui que trusts had full information upon all material facts; and that, having this information, they agreed to and adopted what was done.’ and ‘It is clear undisputed law that a trustee for the sale of property cannot himself be the purchaser of it – no person can at the same time fill the two opposite characters of vendor and purchaser.’
Judges:
Sir Ford North
Citations:
[1900] AC 499
Jurisdiction:
Australia
Cited by:
Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
Lists of cited by and citing cases may be incomplete.
Trusts
Updated: 09 May 2022; Ref: scu.223775
