Case: Milroy v Lord [1861 1873] All ER Rep 783
Outcome: discussed
In Milroy v Lord [1861 1873] All ER Rep 783, Turner LJ famously observed (at 789): "I take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property, and render the settlement binding upon himself. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provisions will then be effectual; and it will be equally effectual if he transfers the property to a trustee for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol. But in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to protect an imperfect gift. The cases, I think, go further, to this extent, that if the settlement is intended to be effectual by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust." 75 His Lordship's comments are entirely apposite to this case. Ms Owens has not discharged the ultimate onus of establishing a declaration of trust preceding her bankruptcy. McInnis FM was correct to so find. There was overwhelming evidence, based upon her subsequent conduct, that she did not regard herself as holding the properties on trust for anyone. That evidence was admissible, particularly in circumstances where the declaration of trust itself was, to put it kindly, an ambiguous and uncertain document. 76 Although it is unnecessary finally to determine whether I would, in the exercise of my discretion, receive the further evidence proffered, I should indicate that my inclination would be not to do so. I do not regard that evidence as cogent, and certainly not sufficiently cogent to warrant its reception. Even Ms Johansson's evidence, which I do accept, only demonstrates that the document in question was created at least three years ago. It does not demonstrate that, as Ms Owens claims, it was executed in December 2000. Three years ago Ms Owens was already fully immersed in difficulties with her creditors, and the creation of that document at any point after about early 2003 would be of no assistance to her. 77 In any event, for the reasons set out earlier in this judgment, primarily on the issue of construction, the reception of this further evidence would not have affected the outcome of this proceeding. 78 The appeal must be dismissed with costs. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 12 December 2007 Counsel for the Appellant: Dr J Glover Solicitor for the Appellant: The Appellant appeared in Person Counsel for the Respondent: Mr S Gardiner Solicitor for the Respondent: Aitken Walker &amp; Strachan Date of Hearing: 30 November 2007 and 5 December 2007 Date of Judgment: 12 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1968.html