Case: Russell v Scott [1936] HCA 34 ; (1936) 55 CLR 440
Outcome: referred to
The presumption of a resulting trust that arises when property is transferred without consideration into the name of a person who is neither the child, adopted child or wife of the transferor, does no more than call for proof of an intention to confer beneficial ownership. Prima facie there is a resulting trust but where satisfactory proof is forthcoming that a purpose of the transaction was to confer beneficial ownership, the presumption is rebutted (see Russell v Scott ('Russell v Scott') [1936] HCA 34 ; (1936) 55 CLR 440 the case of an aunt who put money into a joint bank account in her name and that of her nephew on the basis that it would be held in trust for the aunt during her lifetime but thereafter the beneficial interest would pass to the nephew). 131 Given Mr Ku's evidence that he prepared the 'Change to company details' form, a copy of which is reproduced in Schedule 1, before his meeting with Luke Song on 25 October, that it bears the date 23 October and was handed by Mr Ku to Mr Kim on 24 October with the request that Mr Kim forward it to ASIC in the express post envelope which Mr Ku provided, I have great difficulty in accepting that, when he was speaking with Luke Song on 25 October 2006, he said: 'I will transfer all my shares of Kjun International Pty Ltd to your son first as good gesture if you sign this agreement.' It is unlikely that he would have used the words mentioned and in particular the word 'if' in circumstances where the 'Change to company details' form had already been prepared, signed and handed to his solicitor Mr Kim for transmission to ASIC in Melbourne. I would place greater emphasis upon the words 'Everyone will say I am the most stupid person doing this but I value more our trust than who is got what and who has the right'. Equally, I have difficulty in accepting that the conversation included the words 'If anything goes wrong I didn't get a single dollar so I can get the shares back'. This is not a case where a resulting trust should be implied if it be found that the shares were duly transferred by Mr Ku to Ji Song. As was said in Russell v Scott there will be no resulting trust where satisfactory proof is forthcoming that a purpose of the transaction was to confer beneficial ownership. In my opinion such a transfer was intended in respect of the shares but not perfected, there being no duly executed share transfer form which was delivered to Ji Song or another person on his behalf. 132 Mr Ku says that, at the meeting on 25 October, he and Luke Song addressed the longer form of agreement which he had prepared on 24 October 2006. He said in relation to the consideration of the longer form of agreement: 'We ran through all the clauses in the agreement one by one.' 133 Luke Song deposed to the production by Mr Ku of a document with clauses 'A' to 'G' on it. This is hardly illuminating. There was no form of agreement which included clauses A, B, C, D, E, F and G. There were, however, two different forms of agreement which began with 'A' and ended with 'G'. The longer form of agreement included clauses A, B, C, D, D (a second D), F and G. The shorter form of agreement contained clauses A, B, D, F and G.