…presumption of advancement between husband and wife upheld
In Bosanac v Commissioner of Taxation [2022] HCA 34 (12 October 2022), the High Court of Australia (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) heard a wife’s appeal against a decision which held that she owned 50% of a property on trust for her husband.
The Commissioner of Taxation was a creditor of the husband and sought a declaration of resulting trust over half of the wife’s property (the Dalkeith property). The wife argued that there was no basis to infer that the husband intended to have a beneficial interest in the property.
Kiefel CJ and Gleeson J said (from [35]):
“There was a history of Ms and Mr Bosanac holding their substantial real and other property in their own names. Consistently … it was evidently the desire of Ms Bosanac to purchase the Dalkeith property and have it registered in her name alone. … These facts alone are sufficient to rebut any presumption that her interest in the property was attributable to the relationship of husband and wife …
(…)
[39] There was a history of the use of the properties held by each of Ms and Mr Bosanac in their own names as security for joint loans. … There was no evidence of the use of joint loans to acquire property which was then jointly held. …
(…)
[41] … The history of the spouses’ dealings … might suggest a use of property to secure joint loans which might benefit either or both of them, but it does not support an inference that either intended that property be held jointly. …
[42] The finding … that Mr Bosanac was a sophisticated businessman … [who] appreciated the significance of property being held in Ms Bosanac’s name is not unimportant. His Honour was correct to conclude that that understanding did not support an inference that Mr Bosanac intended to have a beneficial interest in the Dalkeith property.”
Gordon and Edelman JJ provided a separate judgement, as did Gageler J, all agreeing with the orders proposed by Kiefel CJ and Gleeson J. The High Court granted the appeal and set aside the declaration of a trust.
Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).
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