Lloyd's Maritime and Commercial Law Quarterly
PRESUMED RESULTING TRUSTS ON THE MOVE
Henry Cooney*
Bosanac v Commissioner of Taxation
When Bill Bryson visited Perth, Western Australia in the late 1990s, he travelled by foot through a suburb named Dalkeith. Bryson described it as “street after foot-wearying street of trophy homes, with big gates beside broad drives, patios adorned with Grecian urns on ornate plinths, and garages for fleets of cars … a stunning demonstration of the proposition that money and taste don’t always, or even often, go together”.1 The beneficial ownership of one of these Dalkeith homes was the subject of the High Court of Australia’s decision in Bosanac v Commissioner of Taxation.2 And, although the High Court did not say so—or possibly even realise it—the court seems to have performed some fairly significant doctrinal surgery on the Australian law of presumed resulting trusts.
Mr and Ms Bosanac married in 1998. In 2006 Ms Bosanac agreed to purchase a property in Dalkeith, which the couple subsequently moved into as their matrimonial home. The property was funded by loans for which both Mr and Ms Bosanac were liable. Ms Bosanac was the sole registered proprietor of the property. Mr Bosanac later disclosed substantial unreported foreign income to the Australian Taxation Office. The Commissioner of Taxation became a creditor of Mr Bosanac and brought proceedings seeking a declaration that Ms Bosanac held one-half of her interest in the property on resulting trust for Mr Bosanac. At first instance, the Commissioner’s claim was dismissed. McKerracher J held that the presumption of advancement arose in Ms Bosanac’s favour and that the Commissioner had not adduced evidence to displace the presumption.3 On appeal, the Full Court of the Federal Court overturned the decision of McKerracher J and found that, on
* Adjunct Research Fellow, UWA Law School, Perth; Solicitor, State Solicitor’s Office of Western Australia.
1. Bill Bryson, Down Under (London, 2000), 391.
2. [2022] HCA 34.
3. Commissioner of Taxation v Bosanac (No 7) [2021] FCA 249; 390 ALR 74.
Case and comment
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