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[2026] QSC 59
General information, not legal advice.
Supreme Court of Queensland
2026-04-01
Treston J
Original judgment source is linked above.
EQUITY - TRUSTS AND TRUSTEES - EXPRESS TRUSTS CONSTITUTED INTER VIVOS - DECLARATION OF TRUST - NECESSITY FOR INTENTION - OTHER MATTERS - where applicant and deceased were formerly married and divorced prior to her passing - where applicant seeks a declaration of trust over real property - where clearest evidence of intention arises out of property settlement orders drafted by the deceased and made as consent Orders by a registrar of the Federal Circuit Court - where orders unclear, internally inconsistent and replete with error - whether certainty of intention, object and subject established.
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, cited.
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, cited.
Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86, cited.
Re: Armstrong [1960] VicRp 34; [1960] VR 202, cited.
Re Schebsman, deceased [1944] Ch 83, cited.
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107, cited.
Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415, cited.
S Ryan, solicitor, for the third and fourth respondents
Carthew Chau & Co for the third and fourth respondents
The issue - is the property held on trust for Ms Deen's children?
[1] On 27 February 2020 the deceased, Ms Deen, and her ex-husband, Dr Khan, consented to property settlement Orders in the Federal Circuit Court of Australia. The issue before me is whether, by the terms of those Orders, they agreed that the deceased would hold a property at Mt Gravatt on trust for the benefit of their two children. Dr Khan seeks a declaration to give effect to the alleged agreement.
[2] Dr Khan and Ms Deen (also known as Mussarat Ainul Nisha Ghulzar Begum) divorced on 15 June 2018. The divorce was an amicable one. At the time they had one biological son, Jaleel Khan born 19 December 2013, and together they raised Ms Deen's son of an earlier marriage, Jibraan Khan born 13 January 2004.
[3] Leading up to the time of the divorce, Dr Khan and Ms Deen held interests in several real properties. One of those properties at 54 O'Grady Street, Upper Mount Gravatt (the Mount Gravatt property) was registered in Dr Khan's name, secured by a mortgage in the favour of the National Australia Bank (the sixth respondent to this proceeding). They also had a property at Edward Street, Point Arkwright also registered in Dr Khan's name.
[4] As part of the property settlement proceedings, Dr Khan and Ms Deen agreed to sell the Point Arkwright property and use the equity obtained from the sale of it to pay out the remaining mortgage on the Mount Gravatt property, resulting in the Mount Gravatt property being unencumbered.
[5] Dr Khan deposed as follows with respect to the Mt Gravatt property:
"The deceased and I had an agreement that once the mortgage over the Property was paid out and the Property was unencumbered, the deceased would then hold the Property on trust (or specifically, her law firm Lawyers With Integrity Pty Ltd would hold the Property as the trustee) for the "Deen Family Trust", whose two beneficiaries were our two sons, namely Jibraan Khan and Jaleel Khan. This was our express agreement."
[6] The negotiations were earlier the subject of a draft binding financial agreement, but that financial agreement was never executed.
[7] On 27 February 2020 the agreement between Dr Khan and Ms Deen was finalised by way of orders in the Federal Circuit Court of Australia.
[8] Ms Deen was a solicitor and the principal of the incorporated legal practice Lawyers With Integrity Pty Ltd. She prepared the terms of the Order.
[9] The terms of the order are relied upon by Dr Khan as establishing a trust over the Mount Gravatt property:
"UPON APPLICATION MADE TO THE COURT by Ms Deen, Applicant appearing on her own behalf and Dr Khan, Respondent appearing on his own behalf:
(a) That the Wife retain/receive as her own property for her sole use and benefit absolutely ("the Wife's property"):
(i) The real property situated at 54 O'Grady Street, Upper Mount Gravatt in the State of Queensland and more particularly described as Lot 5 on Registered Plan 126556 and Title Reference 14553122 subject to the mortgage to National Australia Bank and mortgage number 709858656 ("the Mount Gravatt property");
(i) The Husband shall maintain the property in an acceptable state for sale having regard to the age of the property;
(ii) The Husband shall cause to be repaired any damage to the property caused by them with such repairs to be at the parties' joint expense.
(iii) The Wife shall be solely responsible from the date of these Orders up to and including the date of settlement for all mortgage payments, insurance, rates, outgoings, electricity and reasonable maintenance of the property as they fall due, subject to Order."
[10] There is no evidence that there was ever a trust in existence known as the Deen Family Trust, and no trust deed was produced in evidence.
[11] The Mount Gravatt property as described by lot, plan and title reference is incorrectly described in the Order of 27 February 2020, however the matter proceeds on the basis that all the parties agree that the property the subject of para 1(a)(i) of the Order is the property situated at 54 O'Grady Street, Upper Mount Gravatt.
[12] The Mount Gravatt property was not transferred from Dr Khan to Ms Deen within six months of the date of the Order in accordance with para 2 of the Order. According to the title search exhibited to the applicant's material, Ms Deen took transfer of the registered ownership of the Mount Gravatt property on 14 June 2022 from Dr Khan, almost two and a half years after the Order was made. The property was not transferred to the Deen Family Trust.
[13] Consistently with the Orders, the Point Arkwright property was sold in 2021 for a sum of $860,000.
[14] After the making of the 27 February 2020 Orders, Dr Khan continued to pay down the mortgage for the Mount Gravatt property, making periodic payments on it until 9 March 2022. After the Point Arkwright property was sold, Dr Khan applied $280,441.45 to the mortgage over the Mount Gravatt property. That resulted in the mortgage on the Mount Gravatt property being reduced to nil, nevertheless the mortgage facility provided by the National Australia Bank remained as a redraw facility over the Mount Gravatt property which, according to Dr Khan, was available for both he and Ms Deen to redraw upon. At this time therefore, the mortgage over the Property was paid out and the Property was unencumbered in accordance with the terms of the agreement between them, and the 27 February 2020 Orders.
[15] In or around early 2022, Ms Deen told Dr Khan she wished to purchase another property at Oxley Terrace, Corinda, and asked Dr Khan to assist her to use the redraw facility available over the Mount Gravatt property. Dr Khan agreed that she could do so on the understanding that Ms Deen would be personally responsible for making all the repayments on the new debt. Ms Deen agreed and on 28 April 2022, drew down $21,000 from the redraw facility for the deposit on the Corinda property, and thereafter drew down to a total of $460,000 from the redraw facility to facilitate the purchase of the Corinda property.
[16] As part of this further arrangement, Dr Khan says that it was agreed between he and Ms Deen that after the mortgage had been paid down to nil the Mount Gravatt property would be transferred into Ms Deen's name as trustee for the Deen Family Trust. Dr Khan then deposes "for some reason unknown to me, the deceased transferred the (Mount Gravatt) property into her sole name, without reference to being trustee of the Deen Family Trust." That the transfer was made to her personally is reflected on the title search.
[17] After the Corinda property settled, Ms Deen commenced personally paying the mortgage payments on the Corinda property from the redraw facility of $460,000 which had been advanced over the Mount Gravatt property, consistently with the agreement to do so as set out para [15] above.
[18] Ms Deen married the fifth respondent, Jaffar Hussain in or about January 2023.
[20] On 3 March 2023 receivers were appointed to the law practice operated by Lawyers With Integrity Pty Ltd following the deceased's death. The company, Lawyers With Integrity Pty Ltd, was de-registered on 7 July 2024.
[21] After Ms Deen died, Dr Khan continued to make payments of the mortgage over the Mount Gravatt property. He maintains however that the debt is a debt payable by the deceased's estate, the sole purpose of the re-borrowings being to facilitate the purchase of the Corinda property. It can be accepted he did so solely for the benefit of the deceased's estate.
[22] The question which arises in this proceeding is one which will determine whether the Mount Gravatt property falls into the deceased's estate or whether it was held on trust for the deceased's two sons.
[23] Dr Khan brings this application for a declaration to have the Mount Gravatt property registered in his name as trustee on behalf of his children. The application is opposed by Ms Deen's husband, the fifth respondent.
[24] The jurisdiction to make a declaration is "a very wide one",[1] although the question must be real and not theoretical, and the person raising it must have a real interest to raise it. Here, the declaration sought is of utility, determining, as it will, whether the Mount Gravatt property falls into the estate or is held on trust.
Is there certainty of intention, subject matter and object sufficient to create a trust?
[25] For the court to make a declaration that there is a trust, three certainties must be evident - certainty of intention, subject matter and object.[2]
[26] No formal or technical words are required for the intention to create the trust, merely an act or expression of intention to create a trust will do.[3]
[27] Whether the court may infer certainty of an intention to create a trust will depend upon the nature of the transaction and the whole of the circumstances, including the relationship between the parties and any commercial necessities.[4] Critical is the language of the parties, construed in their context, including the matrix of circumstances.[5] The overall question is whether in the circumstances of the case, and on the true construction of what was said, written or done, a sufficient intention to create a trust has manifested.[6] Unless an intention to create a trust has been clearly collected from the language used and the circumstances of the case, courts ought not be astute to discover indications of such intention.[7]
[28] Here there is some uncertainty regarding the creation of the trust that arises out of the terms of the Order such that the court must carefully assess the evidence to reach a conclusion.
[29] At Order 1(a)(i), Ms Deen was to "retain/receive ... as her own property for her sole use and benefit absolutely ..." the Mount Gravatt property. As such, the legal and beneficial ownership of the Mount Gravatt property was to pass to her. That is inconsistent with the property being held on trust.
[30] Order 2 provided that within six months of the date of the Order, both Ms Deen and Dr Khan were to do all acts and sign all documents necessary to transfer the husband's right, title and interest in the Mount Gravatt property "to the wife held by Lawyers With Integrity as trustees for the Deen Family Trust".
[31] Order 2 is not easily understood. Had the order ended after the words "to the wife" then that would have been consistent with the legal and beneficial ownership of the property to her absolutely in accordance with Order 1(a). But the addition of the words "held by Lawyers With Integrity as trustees for the Deen Family Trust" brings in uncertainty including:
(a) was Ms Deen to hold the property as trustee, or personally?
(b) if Ms Deen was to hold as trustee, was she to hold as trustee alone or jointly with Lawyers With Integrity Pty Ltd? The plural use of the word "trustees" rather than the singular "trustee" suggests that perhaps both the company and Ms Deen were to act as trustees;
(c) there was no "Deen Family Trust" at the date of the Order, so what were the terms of the Trust, and who were the beneficiaries?
[32] However, the words themselves "... as trustees for the Deen Family Trust" strongly evidence an intention to create a trust.
[33] The six month time period in which for the husband and wife to "do all acts or sign all documents" necessary to transfer the husband's rights to the property to the Deen Family Trust might suggest that the timeframe was intended to include a period for the establishment of the Deen Family Trust, but other than the lack of the Trust Deed at that time, there is nothing else to support that inference.
[34] No assistance is gained from any other part of the Order under the heading "The Mount Gravatt property", including:
(a) at Order 3, refinancing was to be into Ms Deen's name alone, which is unlikely to assist either way with the intention to hold on trust. Generally, finance would be in the name of the property owner, but it is more likely intended as recording that the finance burden, if any, went with the benefit of the property. Even so, it seems to tell against the property being held on trust;
(b) Order 6 is nonsensical. It provides that "... the wife shall have the sole right to occupy the Mount Gravatt property up to the date of settlement whereupon he is required to vacate the Mount Gravatt property and during such right of occupation". Either the words "the wife" or "he" are typographical errors, but they cannot both be correct. There is no full stop after the word "occupation", rather the sentence appears to be unfinished, and unable to be understood. Why would the wife be required to vacate, if the property was for her, or held by her on trust?
(c) Order 7 is almost as nonsensical. To the extent that it can be understood:
(i) it created an obligation on Dr Khan to meet the rates and outgoings "until transfer into her own name". Again, the reference to "her own name" is not a reference to her holding the property as trustee;
(ii) having made Dr Khan responsible for rates and outgoings in the chapeau to Order 7, sub-para (iii) then made the wife responsible for those outgoings from the date of the Order, even though the transfer had not taken place.
[35] The draft Binding Final Arrangement which Ms Deen had sent to Dr Khan on 3 June 2019 did not make any mention of holding the Mount Gravatt property on trust. Rather, the draft Agreement expressly provided for a transfer of that property from Dr Khan to Ms Deen. While I place less weight on this document, as it was not accepted and signed, Dr Khan nevertheless does say that he understood that the document demonstrated Ms Deen's intentions in respect of how she and he ought to deal with the Mt Gravatt property as part of their property proceedings. To the extent that his evidence can be received as her expressed intention, the Agreement does not reflect an intention to hold on trust the Mount Gravatt property.
[36] Against all of this, Dr Khan's evidence set out at para [5] above was that there was an intention to create a trust with his two sons as the only beneficiaries. He did not say when the Agreement was reached, but he did describe that it was part of a wider agreement given effect to by the Orders of 27 February 2020. It follows it is unlikely that any other persons were intended to be beneficiaries, as contended for by the fifth respondent.
[37] Dr Khan was not cross-examined. He was not therefore challenged on his evidence set out at para [5] above.
[38] No copy of the stamped transfer was in evidence, and counsel for Dr Khan eschewed the opportunity to place a copy of such documentation before the court. If the property were to be held on trust, then one would have expected that to appear on the transfer, so I infer it did not. But if the transfer proceeded directly from Dr Khan to the deceased, Dr Khan must have signed the transfer document; and there is no explanation why he did not detect that at the time of signing that the transfer did not give effect for it to be held on trust.
[39] On balance, I find there is there is sufficient certainty of the intention to create a trust which arises out of the combination of the applicant's evidence that the intention was to create a trust with the two sons as the beneficiaries in conjunction with the wording in para 2 of the Order "as trustees of the Deen Family Trust" to evidence certainty of intention to create a trust.
[40] It is much easier to conclude as to the certainty of the subject matter, that is the Mount Gravatt property, and the certainty of the objects, being the two sons, in order to reach the conclusion that there was certainty in respect of the trust.
[41] Properly construed, in my view there is sufficient certainty based on the orders of the Federal Circuit Court of 27 February 2020 to establish the trust, and there ought to be a declaration to that effect.
[42] No person other than Dr Khan asks to be appointed as trustee, and no one opposes his appointment.
[43] Dr Khan also asked for a declaration, for the avoidance of doubt, that neither the deceased's estate, Lawyers With Integrity Pty Ltd or the receivers of the deregistered Lawyer With Integrity Pty Ltd hold the Mt Gravatt property on trust for the Deen Family Trust. Martin SJA made a declaration regarding Lawyers With Integrity on 7 November 2025. A further negative declaration is unnecessary in light of the orders, and these reasons.
[44] Nothing in these reasons adversely affects the sixth respondent's position as the holder of the registered mortgage.
[1] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 435 (Gibbs J).
[2] Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86 at 97 (Dixon CJ, Williams and Fullagar JJ).
[3] Re: Armstrong [1960] VicRp 34; [1960] VR 202 at 205 (Herring CJ).
[4] Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 at 121 (Mason CJ and Wilson J).
[5] Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at 288 (Heydon and Crennan JJ**).**
[6] Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at 422 (Beaumont and Sackville JJ, Jenkinson J agreeing).
[7] Re Schebsman, deceased [1944] Ch 83 at 104 (du Parcq L.J).
Khan
Cornford-Scott
(2011) 243 CLR 253
(1972) 127 CLR 421
(1953) 90 CLR 86
(1988) 165 CLR 107
(1995) 130 ALR 415