Commissioner of Stamp Duties (Qld) v Jolliffe [1920] HCA 45

Commissioner of Stamp Duties (Qld) v Jolliffe [1920] HCA 45 - HCA 1920 case summary — Zoe

[49]

which the trust is created is complete, the property has passed without ' more (Collinson v. Pattrick (1); Ex parte Pye (2); Kekewich vy. ¢ Manning (3) ). It is not necessary to use the words "I declare myself a trustee," so long as the expressions actually used do convey - in the circumstances in which they are used that the person using them considers himself a trustee or adopts that character. See per Wood V.C. in Dipple v. Corles (4), and see Richards v. Delbridge (5). Turner LJ. said in Milroy v. Lord (6) that the transfer of the property becomes effectual in any one of three ways: if the owner (1) actually transfers the property to the beneficiary, (2) transfers it to a trustee for the purposes of the settlement, or (3) declares that he himself holds it in trust for those purposes. If a trust is seriously declared in explicit and direct terms, there is an end of the matter; for the declaration is the " creation of the trust" referred to by Lewin, 12th ed., at p. 88. There is an exception to which 1 shall refer, but apart from that the rule holds. It is the " declara- tion " of trust upon which equity fastens. In M'Fadden v. Jenkyns (7) Wagram V.C. said: "A declaration of trust purports to be, and is in form and substance, a complete transaction, and the Court need not look beyond the declaration of trust itself, or inquire into its origin, in order that it may be in a position to uphold and enforce it." On appeal Lord Lyndhurst L.C. said (8): - " The testator, in directing Jenkyns to hold the money in trust for the plaintiff, which was assented to and acted upon by Jenkyns, impressed, I think, a trust upon the money which was complete and irrevocable. It was equivalent to a declaration by the testator that the debt was a trust for the plaintiff." The intention to create a trust is self-evident from the fact of the declaration, and is no more to be denied than is the intention of a grantor to execute a conveyance to be denied after he has in fact executed it. A declaration of trust is, in the eye of a Court of equity, equivalent to a legal transfer of the property (Collinson vy. Pattrick), and, once the declaration is established, it may be said Finis coronat opus.

[58]

opinion, the circumstances of the present case are distinguishable from those of Field v. Lonsdale (1), as they were determined or assumed by the learned Master of the Rolls. In cases of indirect or implied trusts, the question of the intention - of control of the property by the alleged trustee has frequently arisen ; that is, for the purpose of determining whether the neces- sary "intention" existed. The judgment of Wood V.C. in Vanden- berg v. Palmer (2) explains this thoroughly. If control inconsistent with the intention of creating a trust is retained, the implication of such intention is necessarily excluded. If, however, the control retained is gud trustee, the suggested intention is assisted. The references in that ease (3) to Hughes v. Stubbs (4) are illuminative. In the present case, looking at the documents by the light of the relevant law and the directions of the Bank and the uncontroverted circumstances, which include the Bank's acting on Jolliffe's direction in treating the account as one in trust for Mrs. Jolliffe, there appears to me to be a distinct declaration by Jolliffe that he deposited and } held the deposit of £500 in trust for his wife; that is a trust eo nomine, to use the expression of Lewin, 12th ed., at p. 124. Then, was the evidence of secret intention admissible? I may observe that there has been no case of "revocability " or "' revocation " set up here, even if it were maintainable, but I mention it to indicate that I have not overlooked it. It has been, and is merely, a question of original constitution of a trust. In my opinion there are three reasons for rejecting the oral evi- dence of intention. The first is that, as I have explained, once a clear declaration of trust is made, that is an effectual vesting of the - property in equity in the beneficiary. Mr. Maitland in his lectures on Equity, at p. 44, puts it very succinctly. He says: - " At - this moment I declare to you by word of mouth that I constitute myself a trustee of this watch for my eldest daughter. There is already a perfect trust in the technical sense." A technical or quasi- technical term has, in the present case, been used, a term of an unequivocal nature having a settled result with every one of the

[71]

case of the death of the trustee, the account vests in the executor, 'if there be probate, but if not, the written consent of the trustor "must be obtained to the appointment of the new trustee, unless the -trustor is of tender age. The rule adds: "If so desired, the account may be vested in the trustor." In case of withdrawals, the pass-book should be produced, though provision is made for its absence. Reference has already been made to sec. 15 of the Schedule. The legal position on 15th September 1917, immediately after the pay- ment in of the £500, and down to the date of the withdrawals, was this: Jolliffe had physical control of the book, and the physical power and legal right to withdraw the money but not the complete legal right to interest because it was subject to the legal right of the Commissioner to have the signature of the wife. But, that control and power and right, such as it was, was not in his own private personal right but as trustee. That is the vital point. He received the money, it is true, but as trustee for his wife's estate, and, in my opinion, he is bound to account for it to the estate. _ That position of trusteeship he made the basis of his claim for interest, otherwise unobtainable - at least in part. His claim in Court is that all along he was perpetrating what he it have known to be a fraud; that he all along had the secret intention of repudiating the trust he averred. If, after completely form and for a purpose now effectuated, the law permits him to deny the effect of his explicit statement of trusteeship - to deny it, that is, as against his wife's estate - merely because of his secret inconsistent mental attitude, then there is no security for any declara- tion of trust however formal and explicit. Let any voluntary trustee, or, indeed, if secret intention is always essential, any trustee whatever only establish - perhaps after his cestui que trust's death

that his supposed intention was a sham, the more fraudulent it appears, the more conclusive would be his case, and the trust fails. In my opinion, Edwin Alfred Jolliffe did completely on 17th September 1917 constitute himself trustee for his wife of the sum of £500, and subsequently of the sum of £400, and she could in her ifetime have enforced the trust. I have arrived at this result

At a glance

Court

Decision date

Before

Source

Judgment (81 paragraphs)