Heydon v Perpetual Executors Trustees and Agency Company (WA) Limited [1930] HCA 26

Held, that the onus of proving that the transaction amounted to a Ioan or "van Dufty

that the money was received to the use of the testatrix lay upon the plaintiff, Starke ana and was not satisfied by proof merely of the payment by her to the defendant i : of the amount claimed.

Decision of the Supreme Court of Western Australia (Full Court) : Perpetual Brecutors, Trustees and Agency Co. (W.A.) Ltd, v. Heydon, (1930) 32 W.A.L.R. 89, reversed.

Appear from the Supreme Court of Western Australia.

In an action brought by the Perpetual Executors, Trustees and Agency Co. (W.A.) Ltd. against A. A. Heydon, the plaintiff in its statement of claim sued as executor of Bessie Albo de Bernales deceased for the recovery of £150 for money payable by the defendant to the plaintiff as such executor for money lent by Bessie Albo de Bernales deceased to the defendant at her request and, by an

. amendment, for money had and received by the defendant as tru: for the plaintiff. By her defence the defendant pleaded that th

On these pleadings the trial Judge, Macmillan C.J., held that burden of establishing a gift was upon the defendant, who m begin. The defendant thereupon gave evidence to the effect that on 14th July 1926 the deceased, whom she had befriended, gave a cheque for £150, insisting that it should be a gift and nota lo and that before the death of the deceased, which occurred on 1 August 1927, no claim was made on the defendant for repaymen The plaintiff then went into evidence. His Honor considered th the defendant's case amounted to a claim on a deceased per estate and required corroboration. He held that the defence fa

not because it had been disproved by any evidence, but because: failed of its own inherent weakness. He entered judgment for he plaintiff with costs. :

On appeal to the Full Court of Western Australia this judgme was affirmed : Perpetual Executors, Trustees and Agency Co. (W.A v. Heydon (1).

From the decision of the Full Court the defendant now, by specia leave, appealed to the High Court. j

Goold, for the appellant, referred to Cary v. Gerrish (2); Welch Y Seaborn (3). [He was stopped by the Court.] 4

P. O'Dea, for the respondent. When it appeared that defendant admitted receiving the money without consideration tl burden lay upon her of showing that no debt arose in favour the testatrix and that she was not a trustee of the sum for th testatrix. A voluntary payment to a stranger raises a presumpti of a resulting trust. [He referred to Scott v. Pauly (4); Pink Pink (5); Bouts v. Ellis (6); Roscoe's Nisi Prius, 16th ed., p. 261.)

(Drxon J. Godefroi, 3rd ed., at p. 195, 4th ed., at p. 145, says chattels which pass by delivery are not within the rule, and

(1) (1930) 32 W.A.L.R. 89. (4) (1917) 24 G.L.R 274, at p. 28 (2) (1801) 4 Esp. 9; 170 E.R. 624. (5) (1912) 2 Ch, 528, at p. 540. (3) (1816) 1 Stark. 474; 171 E.R. 534, (6) (1853) 17 Beav. 121; 51 E.R. 97

presumption arising from a voluntary delivery of them is that a H. ©. or A.

gift was intended, in the absence of circumstances ; and in George v. ite Howard (1) Richards C.B. says: "If I deliver over money . . . Hevpon to another, even although he should be a stranger, it would be Prineavoty prima facie a gift ''.] ee

Gavan Durry J. In this case the plaintiff sued for money lent and money received by the defendant as trustee for the deceased. The defendant denied these allegations and said the money was given to her as a gift. At the trial the learned Judge thought that the onus of proving there had been a gift lay on the defendant. We are respectfully of opinion that the burden of proving the facts in support of either one or other cause of action set out in the statement of claim, lies on the plaintiff. The plaintiff's evidence as well as the defendant's was, as a matter of fact, given. Counsel for the plaintiff tells us that he has no further evidence to offer now than he had then. The evidence thus given did not satisfy any of the Judges that in fact any case had been made out, or that the money had been lent, and it does not satisfy us either that any of the allegations made in the statement of claim are correct. In this case, as there is no new evidence available, there is no necessity to inquire whether justice would be done by ordering a new trial. We have, in the circumstances, come to the conclusion that the appeal should be allowed; the order made by the Supreme Court should be set aside ; judgment should be entered for the defendant appellant with costs of the action and of the appeal to the Supreme Court of Western Australia and of the appeal to this Court.

Drxon J. I concur. In addition to the cases cited during the argument, I desire to mention Aubert v. Walsh (2) as a further authority in support of the view that the burden of proof was upon the plaintiff.

(1) (1819) 7 Price 646, at p. 651; 146 (2) (1812) 4 Taunt. 204; 128 E.R. E.R. 1089, at p. 1090. 342,

H.C.or A. Goold. I neal ask for some order directing the return of mon

4860, paid by way of security and moneys paid by way of judgment a1

Execurors, es ce. oes Gavan Durry J. Of course you are entitled to the recovery «

oan ake any moneys you have paid under this judgment without it bei

Appeal allowed. Order made by the Supre Court set aside. Judgment entered for defendant appellant with costs of the a ci and of the appeal to the Supreme Co Western Australia and of the appea the High Court.

Solicitor for the appellant, L. B. Goold. Solicitors for the respondent, O'Dea & O'Dea.