Although his Honour spoke of conveyances or transfers he made no reference to s 99 (or s 85 of the 1862 Act, as it then was).
23 In these circumstances, although the matter is not free from doubt, I am of the view that there was room for s 44(1) to have incidence upon instruments relating to land under the RPA. If this be correct, it reinforces the conclusion I have come to that s 44(1) applies to transfers of Torrens title land.
24 That is not the end of the matter. Section 44 in terms proceeds by reference to a resulting use, and not to a resulting trust, as is the case in relation to the English Law of Property Act 1925 s 60(3) and the Victorian Law of Property Act 1958 s 19A. It should be said at once that those provisions were enacted at the time of the repeal of the Statute of Uses in those jurisdictions, whereas s 44 was enacted in the context that the Statute would continue in force in New South Wales. They also operate by reference to the absence of the expression of uses, rather than by reference to the absence of consideration. These factors may well lead to those sections having an effect different from s 44, despite some similarity of form. However that may be, the generally accepted view has been that, in relation to old system titles the effect of s 44(1) has been to prevent the implication of a resulting trust as well as a resulting use. Insofar as there is an ambiguity in the section I am assisted in divining the intent of Parliament by what is said in the Commissioner's report. The close interrelation of the use and the trust particularly in relation to the conveyancing of land and the history of resulting uses and trusts (see House v Caffyn supra at 76) suggests that this is the better view to take. It is the view taken by the learned authors of Ford & Lee, ibid. In my view the intent to be divined from the section is that the resulting trust should not be implied in relation to gratuitous conveyances, and that in relation to RPA land as well as the diminishing amount of land under the general title. To hold otherwise would create the anomaly which, as Windeyer J has pointed out in the Newcastle City Council case supra, one would hesitate to create unless the necessity were more clearly indicated by the statute than it is here.
25 One last question is whether any difference was made to the operation of s 44 by the repeal of the Statute of Uses, which was effected in New South Wales by the Imperial Acts Application Act 1969 ("the IAA") s 8. It has been suggested that, because the section proceeds by reference to uses, it has nothing to operate on after the repeal. However, the employment of uses preceded the Statute of Uses. The Law Reform Commission, recommending its repeal, anticipated no such effect: LRC 4 (1967) 83 - 84. And s 9(1)(a) of the IAA would appear to preclude that result.
26 In those circumstances it is my conclusion that no presumption of a resulting trust arose from the transfer of the property to Thakordas and the defendant. The transfer gave the whole of the legal and equitable estate to the transferees.
27 One thing that may detract from this view is a dictum of McHugh J in Nelson v Nelson (1995) 184 CLR 538, a case which did involve Torrens title land in New South Wales. His Honour at 600 appears to assert that a resulting trust is presumed in case of a gratuitous conveyance as well as upon provision of the purchase money of land transferred to another. However, the dictum is obiter, as the case is one of a purchase money trust. There are no dicta to similar effect in the other judgments in Nelson. It does not appear that s 44(1) or its effect was cited or discussed in that case. In the circumstances, despite my great respect for his Honour, I do not regard myself as bound by that dictum.
28 As in my view no presumption of a resulting trust arose, it is not necessary for me to decide whether it was in the circumstances rebutted. However, if it were necessary to decide that, I should decide that the presumption was rebutted. I have grave doubts as to whether Jayesh was present when the first conversation took place. But, in any event, the identical wording (without any adequate explanation of how it came about) of his and his mother's accounts of the conversation robs them both of credibility. I am not prepared to accept their version of the conversation. I found the most credible witness, both as to recollection and as to the quality of her account, to be Praphavati. I do not think that a change in her evidence as to whether she challenged her brother in law before she left or after she came back to the room substantially detracts from her credibility. I accept that she believed at the time the transfer was executed that its effect and her husband's intention were to transfer all rights in the property to his brother. In her belief he said nothing either in the room or outside that conveyed any intention but that, and that in the face of her obvious distress at what was occurring. His answers in cross examination were confused. At times he claimed that he had believed that his brother had an obligation to transfer the property back to him; at another he conceded that he gave his brother the totality of his "former interest" in the property. I should add that I would decline to find that the motive of the transaction was to remove the property from the ambit of the Family Law Act 1975 (Cth). In my view the motivation that he had at the time was the absolute necessity on any terms to get Thakordas and his family out of the house in order to save his marriage. To do that he was prepared to do anything including transfer his whole interest in the property to Thakordas and his wife. He did not say anything to his wife at the time that evinced any intention to retain an interest in the property. The fact that benefits had proceeded from his brother in the form of the $14,000 for the enterprise which failed and some months work on his wife's house, together with the familial relationship, render it less unlikely that a gift was contemplated. By reason of those considerations, I should, if wrong about the non existence of the resulting trust, still reach the same conclusion as I have expressed in [26] above as to the result of proceedings.
29 Finally I should add that, if it is possible for a resulting trust to arise from an intention on the part of a voluntary transferor to retain the beneficial interest, rather than from the absence of consideration (which I gravely doubt), it will be plain from [28] that I should not find such an intention established.
30 There will therefore be judgment for the defendant on the plaintiff's claim. Subject to any submissions on the plaintiff's part, it seems to me that costs must follow the event.
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