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Livin the Dream Pty Ltd v Attorney-General[2025] QSC 21

Livin the Dream Pty Ltd v Attorney-General[2025] QSC 21

SUPREME COURT OF QUEENSLAND

CITATION:

Livin the Dream Pty Ltd v Attorney-General & Ors [2025] QSC 21

PARTIES:

LIVIN THE DREAM PTY LTD

(applicant)

v

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first respondent)

and

HOMES OF HOPE LIMITED

(second respondent)

and

MICHAEL JOHN CASPANEY (in his capacity as Liquidator of Love your World Pty Ltd)

(third respondent)

and

LOVE YOUR WORLD PTY LTD (IN LIQUIDATION)

(fourth respondent)

FILE NO:

6620 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 February 2025

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2024

JUDGE:

Martin SJA

ORDERS:

  1. The application is dismissed.
  2. I will hear the parties on costs.

CATCHWORDS:

Where the applicant sought a declaration that it held a property on trust for the charitable purpose of the advancement of religion on and from 6 April 2020 – where the applicant relied on an affidavit filed in support of its application as a written declaration of trust – where the applicant’s communications indicated no clear intention to create a trust in the weeks prior to 6 April 2020 – where there was no evidence of the financial or legal documentation ordinarily expected of a trust – where the applicant had not attempted to comply with the duties and obligations of a trustee – whether an affidavit created for use in the proceedings but sworn before the proceedings commenced can satisfy the requirements of section 11(1)(b) of the Property Law Act 1974 (Qld) – whether an express trust was created – whether the applicants objectively intended to create a trust

Property Law Act 1974 (Qld) s 11(1)(b)

Bahr v Nicolay (No 2) (1988) 164 CLR 604, cited

Barkworth v Young (1856) 26 LJ Ch 153, considered

Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26, considered

Calverley v Green (1984) 155 CLR 242, considered

Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87, cited

Di Pietro v Official Trustee in Bankruptcy (1995) 59 FCR 470, cited

Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53; [2006] FCAFC 157, cited

Dudgeon v Chie (1954) 55 SR (NSW) 450, considered

Fletcher v Burns (1997) 12 BPR 22937, considered

Kauter v Hilton (1953) 90 CLR 86, cited

Korda v Australian Executor Trustees (SA) (2015) 255 CLR 62; [2015] HCA 6, cited

McEvoy v McEvoy [2012] NSWSC 1494, cited

Oliver v Renwick Street Pty Ltd [2024] NSWSC 346, considered

Re Schebsman [1944] Ch 83, cited

Re Tresdar Pty Ltd [2019] NSWSC 179, cited

Ryder v Taylor (1935) 36 SR (NSW) 31, cited

Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278; [2006] HCA 6, cited

Twinsectra Ltd v Yardley [2002] 2 AC 164, cited

COUNSEL:

P O'Higgins KC and A O'Brien for the applicant

A Wheatley KC and B McEniery for the first respondent

B Kidston for the third and fourth respondents

SOLICITORS:

Neumann & Turnour Lawyers for the applicant

G R Cooper, Crown Solicitor for the first respondent

Rose Litigation Lawyers for the third and fourth respondents

  1. [1]
    Livin the Dream Pty Ltd (LTD) owns an 8-hectare property at Lake Moogerah. It seeks a declaration that it holds that property on trust for the charitable purpose of the advancement of religion. It asserts that it has held the property on trust “on and from 6 April 2020”. On the basis that it will obtain that declaration it also seeks advice under s 106 of the Trusts Act 1973 that the trust be subject to new terms and that it retire and be replaced as trustee by Lakeside Retreats Limited. Both the Attorney-General and the third and fourth respondents (the Liquidator) oppose the making of that declaration and the associated relief. The second respondent did not appear.
  2. [2]
    There is a preliminary issue which requires determination. It is: Have the requirements in s 11(1)(b) of the Property Law Act 1974 been satisfied?
  3. [3]
    The major issue is whether a trust as alleged was created.
  4. [4]
    For the reasons which follow I have found that a trust was not created and that the balance of the relief sought need not be considered.

The relevant parties

  1. [5]
    LTD was founded by James Harder, Robert Harder and Andrew Clement in 2010. James and Robert are brothers. James was and remains the sole director. The sole shareholder before 6 April 2020 was W2G Assets Pty Ltd. W2G was owned by three companies associated with James, Robert and Andrew, respectively. Each of those companies was, in turn, associated with separate family trusts involving James, Robert and Andrew. The evidence supports a conclusion that major decisions about LTD were the subject of discussion and agreement by James, Robert and Andrew.
  2. [6]
    The Attorney-General appears as the “protector of charities”. That role arises out of the Crown’s responsibility, as parens patriae, to protect property devoted to charitable purposes. Statutory force has been given to that duty by s 7(1)(e) of the Attorney-General Act 1999.
  3. [7]
    On 6 April 2020 the shares in LTD were transferred from W2G to the second respondent, Love Your World Pty Ltd. On 5 May 2022 those shares were transferred to Homes of Hope Limited.
  4. [8]
    On 14 March 2023 Love Your World entered voluntary administration and then liquidation. The third respondent, the Liquidator, says that the transfer of the shares in Love Your World to Homes of Hope was an uncommercial transaction and voidable under s 588FB of the Corporations Act 2001 (Cth). If the declaration sought by LTD is made then the Liquidator’s claim to recover the shares in LTD will be defeated.

Have the requirements in s 11(1)(b) of the Property Law Act 1974 been satisfied?

  1. [9]
    Section 11(1) of the PLA provides:

“(1)Subject to this Act with respect to the creation of interests in land by parol—

  1. no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person's agent lawfully authorised in writing, or by will, or by operation of law; and
  1. a declaration of trust respecting any land must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will; and
  1. a disposition of an equitable interest or trust subsisting at the time of the disposition, must be manifested and proved by some writing signed by the person disposing of the same, or by the person's agent lawfully authorised in writing, or by will.”
  1. [10]
    The history of s 11 can be traced to the original Statute of Frauds 1677 which was designed to remedy perceived problems with oral evidence being relied upon to prove the terms of certain types of agreement (the sale of land) or the creation of interests related to land. There is a significant difference between s 11(1)(a) and s 11(1)(b). The former creates a necessary condition for the creation or disposal of an interest in land. Section 11(1)(b) does not do that so far as express trusts respecting land are concerned. An express trust can be created without any writing but, if it concerns land, it cannot be enforced unless it is “manifested and proved by some writing.”
  2. [11]
    The following aspects of the requirements in s 11(1)(b) are drawn from the analysis in Jacobs’ Law of Trusts in Australia[1]:
    1. No particular form of writing is required. For these purposes, it is sufficient to note that an affidavit may suffice[2].
    2. The writing must identify the terms of the trust, the beneficiaries, the trust property and the nature of the trust[3].
    3. The writing need not be made at the time the trust was created. It may be made after the event[4].
    4. The writing must be signed by the person enabled by law to declare the trust. It is only the owner of the beneficial interest who can declare the trust. “It has been regarded as established since Tierney v Wood (1854) 19 Beav 330; 52 ER 377, that the writing must be signed by the beneficial owner of the land and not by his or her agent: Ryder v Taylor (1935) 36 SR(NSW) 31 (NSW S Ct) at 51, per Nicholas J; Jacobs' Law of Trusts, at 103-104.[5]”
  3. [12]
    The issue which arises at this point is: can an affidavit sworn for use in these proceedings, but sworn before the proceedings commenced, constitute the necessary writing?

Can the First Affidavit, which was created for use in these proceedings but sworn before the proceedings commenced, constitute the necessary writing?

  1. [13]
    LTD argues that the requirements of s 11(1)(b) are satisfied by the first affidavit of James Harder which was sworn on 21 May 2024 (“the First Affidavit”). On 23 May 2024, LTD’s Originating Application was filed. It stated that the applicant intended to rely upon the First Affidavit. The First Affidavit was filed on 24 May 2024.
  2. [14]
    James swore two more affidavits – on 27 June and that 2 August 2024. Neither of them, for the reasons which follow, can constitute the necessary writing.
  3. [15]
    No objection can be taken to the character of the writing relied upon. In Barkworth v Young[6] it was held that the writing may be in the form of an affidavit[7]. In that case the affidavit had been created for use in another, earlier proceeding.
  4. [16]
    The use of an affidavit to satisfy the Statute of Frauds was considered in Dudgeon v Chie[8]. In that case Mrs Chie had commenced ejectment proceedings against Mr Dudgeon. After the Defence was filed, Mrs Chie sought an order under Order XXI, r 27 of the Supreme Court Rules (NSW) for leave to enter judgement and she filed an affidavit in support. The affidavit contained the evidence she later sought to rely on as a note or memorandum in writing of the relevant agreement. The writ had issued on 19 August 1953. The affidavit was sworn on 23 October 1953. Street CJ and Herron J were prepared to assume that the affidavit constituted a sufficient note or memorandum of the oral agreement relied upon by the claimant. They said that “a real difficulty presents itself, namely, as to whether an affidavit sworn for the purpose of r 27 can be used in the same action by a defendant for the purpose of providing sufficient written evidence to satisfy the Statute of Frauds. We are of opinion that it cannot be so used and is not available to the defendant for such a purpose.”[9] They observed that in Barkworth v Young the relevant affidavit had been sworn and filed in different and earlier proceedings “relating to quite a different contest from that under consideration in the case cited.”[10]
  5. [17]
    The fact that the affidavit relied upon in this case relates to the “same contest” does not disqualify it on that count. The question is: when was the writing created? In Fletcher v Burns[11] the plaintiff had sued the executors of an estate in an effort to enforce an alleged oral contract made with the deceased in relation to the transfer of land. The Court of Appeal held that the plaintiff was unable to rely on an affidavit sworn by the first defendant as satisfaction of the writing requirement. Handley JA (with whom Cole JA and Dunford AJA agreed) identified the disqualifying factor in this way:

“The affidavit of the first defendant filed after the commencement of the proceedings cannot be a sufficient memorandum because it was not in existence when the proceedings were commenced: see Dudgeon v Chie (1954) 55 SR (NSW) 450 at 469; Farr Smith & G Ltd v Messers Ltd [1928] 1 KB 397 at 405–8; J Williams, The Statute of Frauds: section four, Cambridge University Press, Cambridge, 1932, at 76–9.” (emphasis added)

  1. [18]
    The disqualifying factor for the affidavit sought to be used in Fletcher v Burns was that it was not in existence when the proceedings were commenced.
  2. [19]
    A thorough examination of the authorities on this point was undertaken by Hmelnitsky J in Oliver v Renwick Street Pty Ltd[12]. One of the issues decided in that case was whether a declaration of trust had been recorded in writing.  The plaintiff’s case in relation to the requirement of writing rested entirely on the proposition that the written evidence of  the relevant party contained in his affidavits sworn in the proceedings was sufficient compliance with the New South Wales provision which is the equivalent of s 11(1)(b) of the PLA. Hmelnitsky J, after a detailed consideration of the cases which have dealt with this point, concluded that the affidavits which had been sworn in the proceedings did not constitute compliance with the equivalent of s 11(1)(b) PLA.  I respectfully agree with his Honour’s conclusion. That, though, does not dictate the final answer in this case.
  3. [20]
    In this case, the writing relied upon by the applicant came into existence before these proceedings commenced. The affidavit was not “sworn in the proceedings” because, notwithstanding its appearance, the proceedings did not exist until the originating application was filed. That the writing is constituted by an affidavit is not to the point. The authorities are consistent on this issue – writing (in any form) which is created after the proceeding is commenced may not be relied upon. Where it is created before the proceedings are commenced, the mere fact that the writing relied upon is in the form of an affidavit does not disallow the applicant from relying on it if it otherwise satisfies s 11(1)(b).
  4. [21]
    The First Affidavit satisfies s 11(1)(b).

Was a trust created as alleged?

  1. [22]
    An express trust will be found where the court is satisfied that:
    1. there was a clear intention to create the trust,
    2. it is clear what property is subject to the trust, and
    3. there is reasonable certainty as to the beneficiaries.[13]
  2. [23]
    In cases where there is there no explicit declaration of trust, the court will deal with it in the manner described by French CJ:

“[3] The question whether an express trust exists must always be answered by reference to intention. An express trust cannot be created unless the person or persons creating it can be taken to have intended to do so. Absent, as in this case, an explicit declaration of such an intention, the court must determine whether intention is to be imputed. It does so by reference to the language of the documents or oral dealings having regard to the nature of the transactions and the circumstances attending the relationship between the parties.”[14]

  1. [24]
    The intention of the settlor is assessed objectively. In Byrnes v Kendle[15] Heydon and Crennan JJ described the objective test in the following way:

“[114] … But the “intention” referred to is an intention to be extracted from the words used, not a subjective intention which may have existed but which cannot be extracted from those words.  This is as true of unilateral declarations of alleged trust as it is of bilateral covenants to create an alleged trust.  It is as true of alleged trusts which are not wholly in writing as it is of alleged trusts which are wholly in writing.  In relation to alleged trusts which are not wholly in writing, the need to draw inferences from circumstances in construing the terms of conversations may in practice widen the extent of the inquiry, but it does not alter its nature.”

  1. [25]
    The settlor need not have the subjective intention to create a trust. If a settlor enters into arrangements which have the effect of creating a trust, it is sufficient if the subjective intention was simply to enter into those arrangements – it need not be shown that the settlor was aware of the consequences of those actions.[16]
  2. [26]
    The Attorney-General argues that there is insufficient material to show that the necessary objective intention existed. In order to assess that argument it is necessary to set out part of the evidential background to this application.

What is the evidence of a trust being created?

  1. [27]
    LTD was originally established to conduct a business of hiring out recreational equipment. It was not successful. In February 2011 it arranged a secured loan from Westpac Bank in order to buy the property. At that time, James, Robert and Andrew intended to improve the property for their personal use. During 2011 the existing house on the property was demolished and a new one built.
  2. [28]
    James is a congregant of the Presbyterian Church. He invited church groups and ministries to use the property from time to time.
  3. [29]
    None of the evidence given by James, Robert and Andrew was challenged.
  4. [30]
    In summary, their evidence was:
    1. Andrew wanted to extract the money represented by his “interest” in the property.
    2. James wanted to put the property “into a charity so that it would be held in perpetuity for ministry work and to reach people for Christ”,
    3. Robert agreed to investigate means to achieve that,
    4. James trusted Robert to make decisions, and implement them, about company structuring and asset protection,
    5. In early 2020 Robert told James of a proposal:
      1. (i)
        for the shares in LTD to be transferred to Love Your World Pty Ltd – a registered charity which Robert controlled,
      1. (ii)
        for the Westpac mortgage to be paid out by borrowing money, and
      1. (iii)
        that the money would be borrowed from people who were willing to accept promissory notes and not receive any interest.
    6. James said he did not understand how the “plan” worked but he believed that Robert understood what James intended and he trusted him to carry that into effect.
    7. The Westpac loan was paid out using the borrowed funds.
    8. On 6 April 2020, the shares in LTD were transferred to Love Your World.
    9. James says that, from that time, the property was not used for private purposes but was available for use by Christian ministries.
    10. The Westpac mortgage was released on 23 April 2020.
    11. James asked Robert to “prepare an amended Constitution” for LTD. The amended constitution contained a new Chapter 2 entitled “Charitable purposes and powers”. It sets out that the company’s object is to pursue the charitable purposes listed under “Primary” and “Secondary” objects. They are objects often found when a company is established to engage in religious, charitable purposes. It was not adopted.
    12. The property has been used, since the share transfer, for purposes associated with various churches.
    13. While donations have been received from those who have used the property, they have been applied toward the costs of repair and maintenance.
    14. Various steps were taken to place the property on the market and negotiations with prospective purchasers took place.

Was a trust created?

  1. [31]
    LTD argues that its conduct manifested an intention to hold the property on trust and, thus, it has proved the existence of a trust.
  2. [32]
    The Attorney-General does not challenge LTD’s contentions that:
    1. the “trust” property is identified, and that
    2. the object of the “trust” is the advancement of the Christian religion – a recognised charitable purpose.
  3. [33]
    The Attorney-General contends that “the Court may not be satisfied that there was an objective intention that the property be held on a charitable trust.” Part of that argument concerned the absence of events or documents which might ordinarily be expected to have occurred or been created if a trust had been brought into existence.
  4. [34]
    The Liquidator adopts the Attorney-General’s submissions but argues that LTD’s evidence is insufficient to demonstrate the charitable purpose necessary to create a charitable trust.

Has LTD demonstrated that the requirements set out above have been satisfied?

  1. [35]
    In a frequently approved statement expressing the need for caution, du Parcq LJ said:

“… unless an intention to create a trust is clearly to be collected from the language and the circumstances of the case, I think that the Court ought not to be astute to discover indications of such an intention.”[17] (emphasis added)

  1. [36]
    In a case like this the rule to be applied was expressed by Gummow and Hayne JJ in Byrnes v Kendle [18]:

“[54] Where an express inter vivos trust respecting land or any interest in land is manifested and proved by some informal writing, or an express inter vivos trust of personalty is said to have been created by informal writing or orally, then a dispute as to the presence of the necessary intention, despite inexplicit language, is resolved by evidence of what the court in Kauter v Hilton identified as “[a]ll the relevant circumstances”.

[55] But the object of this evidentiary odyssey does not change, and the nature of the intention of the alleged settlor does not differ. The question, as Megarry J put it, “is whether in substance a sufficient intention to create a trust has been manifested.” The point was made by Lord Millett in Twinsectra Ltd v Yardley:

“A settlor must, of course, possess the necessary intention to create a trust, but his subjective intentions are irrelevant. If he enters into arrangements which have the effect of creating a trust, it is not necessary that he should appreciate that they do so; it is sufficient that he intends to enter into them.”

[56] There is good sense in such a rule. Issues of the construction to be placed upon the words or actions of alleged settlors are apt to arise long after the event. … Further, trusts give rise to proprietary interests, dealings which may engage third parties who are strangers to the original actors.” (citations omitted, emphasis added)

  1. [37]
    To similar effect is the reasoning of Heydon and Crennan JJ in the same case:

“[112] In 2000 Gaudron, McHugh, Gummow and Hayne JJ said that even if “the language employed by the parties … is inexplicit”, the court can infer an intention to create a trust “from other language used by them, from the nature of the transaction and from the circumstances attending the relationship between the parties”.

[113] Neither in England nor in Australia has the application of the principles for establishing and defining a trust been analysed with the sophistication devoted in England to their application in contract. However, in both English and Australian law the surrounding circumstances are material to the questions whether the words used created a trust and what its terms are. Accordingly, Conaglen was correct to say:

“The court’s focus when construing the terms of [a] bilateral arrangement [creating a trust] is on the objective meaning that those terms would convey to a reasonable person, just as it is when construing contractual arrangements.”

The question is what the settlor or settlors did, not what they intended to do.

[114] That truth tends to be obscured by constant repetition of the need to search for an “intention to create a trust”. That search can be seen as concerning the first of the three “certainties” — what Dixon CJ, Williams and Fullagar JJ called in Kauter v Hilton:

“[T]he established rule that in order to constitute a trust the intention to do so must be clear and that it must also be clear what property is subject to the trust and reasonably certain who are the beneficiaries.

But the “intention” referred to is an intention to be extracted from the words used, not a subjective intention which may have existed but which cannot be extracted from those words. This is as true of unilateral declarations of alleged trust as it is of bilateral covenants to create an alleged trust. It is as true of alleged trusts which are not wholly in writing as it is of alleged trusts which are wholly in writing. In relation to alleged trusts which are not wholly in writing, the need to draw inferences from circumstances in construing the terms of conversations may in practice widen the extent of the inquiry, but it does not alter its nature.” (citations omitted, emphasis added)

  1. [38]
    There was no express declaration of trust by James who, as the only director of LTD, was the only person capable of doing so. Similarly, there was no resolution by LTD that it would hold the property on trust.
  2. [39]
    LTD invites me to find that the evidence “comfortably establishes that LTD had the requisite intention to declare itself trustee of the property.” That, with respect, does not state the test accurately. In the absence of an express declaration, I have to examine the language used by the relevant person at the time in the light of the circumstances and what was actually done. It is necessary that I examine the statements relied upon in the circumstances in which they were made in greater detail.
  3. [40]
    James, Robert and Andrew had, at various times, discussions about the future of the property. They can be considered as part of the background to any statements made by James or acts undertaken by him or for him.
  4. [41]
    In his First Affidavit James deposes that, in late 2018 or during 2019, Robert approached him to discuss whether they should sell the property. Andrew was going through a divorce and Robert expected he would need the money tied up in his “share” of the property. James says that he and Robert had a number of discussions about what to do with the property – “We spent a lot of time together around that time, lived near to each other and worked together, so it is difficult to remember one particular conversation apart from another.”
  5. [42]
    He said that, having discussed what should be done with the property several times and over a substantial period he had a conversation with Robert (in late 2018 or during 2019) in which he said to Robert:
    1. “I know you want to sell the property, but I have been enjoying hosting churches and ministry groups. Instead of selling it, we should arrange to make sure it can be used for ministry purposes moving forward.”
    2. “For me, I only ever come up here to facilitate ministry, so I want it to be held in perpetuity for the ministry.”
    3. “I don’t want to sell the property. I want to put it into a charity so that it will be held in perpetuity for ministry work and to help reach people for Christ.”
  6. [43]
    Robert said that he would “see what we can do to put it into the charity so that it can be continued to be used for ministry”. James deposed: “Robert had a charity called Love Your World, which provided financial and practical support, training, advice and assistance to churches and church missionary programs, so I assumed that he would look into putting the property into that charity.”
  7. [44]
    James also deposes to a conversation he had with Andrew at about the same time during which the following was said:

Andrew: “I cannot afford the cost of continuing to keep the property at the moment so we need to sell it.”

James: “I want the house to become a ministry house moving forward.”

Andrew: “Will I be able to help out and stay at the house from time to time?”

James: “You can help, but it will be a ministry house and not for your use. It will be put into a charity so that it can be used in perpetuity for ministry.”

  1. [45]
    In early 2020, a considerable time after James had the discussions set out above, Robert outlined his proposal to James. It was that the shares in LTD would be bought by Love Your World. Love Your World had been registered with the Australian Charities and Not-for-profits Commission as a charity for, among other things, advancing religion, since December 2012.
  2. [46]
    The other part of Robert’s proposal involved the discharge of the mortgage held by Westpac Bank. This would be done through the issuing of promissory notes to raise funds sufficient to pay out the mortgage. James deposes to not understanding how all of Robert’s plan worked. The mortgage was released on 23 April 2020. This led to a reduction in the costs incurred by LTD in holding the property because the promissory notes were interest-free.
  3. [47]
    The shares in LTD were transferred to Love Your World on 6 April 2020.
  4. [48]
    James, Robert and Andrew each depose to having ceased to use the property as their own and that they worked to keep it ready and available for Christian ministries. When church or other ministry groups used the property, they were not charged a fee but were requested to consider making a donation to fund the costs of repairs and maintenance. The property has been used for matters other than the Christian ministry. For example, it has been let through accommodation booking websites and James says that that was done to earn additional money for repairs and maintenance.
  5. [49]
    The Attorney-General does not support the declaration sought on the basis that the evidence does not establish an objective intention to create the trust. It is also argued, on her behalf, that LTD did not satisfy the requirements for writing which I have dealt with above. The main thrust of the Attorney-General’s submission concerns the circumstances in which the trust is said to have arisen and what occurred after 6 April 2020. It is argued that many of those events are inconsistent with the creation of a trust or otherwise incongruous.
  6. [50]
    One of those matters concerns negotiations for the sale of the property. It was put on the market in the middle of 2019 and then removed after about six weeks. There were some emails in March 2020 in which Arthur Hertwick (a real estate agent) advised of a prospective buyer. Andrew told the agent that he, Robert and James were currently negotiating with a group to purchase the property. That, the Attorney-General submits, is inconsistent with the assertions about discussions in late 2018 or 2019 constituting the declaration of trust. Various discussions were taking place with respect to what might be done with the property. For example, in March 2020 James had a discussion with David and Katherine Thurston about making the property permanently available for church and ministry purposes and what they could do by way of contribution. As a result of that, they gave James a bank cheque in the sum of $100,000 on 6 April 2020. On the same day they received two promissory notes with respect to that amount.
  7. [51]
    In Andrew’s affidavit (relied upon by LTD) he says that, in May 2019, he spoke with Mr Hertwick about putting the property on the market. He goes on to say that after Mr Hertwick was appointed as the agent, James told him that he did not want to sell the property because he enjoyed using the property to host church groups for leaders’ retreats, camps, picnics and the like and he wanted to arrange for the property to be held in a way that would allow it to be used exclusively for those purposes. After speaking to Robert, Andrew told Mr Hertwick, in June 2019, that he wanted to take the property off the market. But that was not final. In an email of 20 June 2019, Andrew said: “As discussed if the guy that was interested comes back in a month or so would be happy to revisit it but at this stage we have decided to keep it.”
  8. [52]
    On 2 March 2020, Mr Hertwick emailed Andrew and said: “My original Buyer has come back to me with an offer of $1 million for the lot including all the chattels with a quick settlement listed below in your email to me.” The day after that email Andrew replied and said: “I have had a chat with Rob and James and as I said we are currently negotiating with a group on the purchase of the property. If this doesn’t go ahead we will let you know. Expect to have a [sic] answer within the next few weeks.”
  9. [53]
    It is difficult to reconcile that exchange of emails with the existence of a trust or the objective intention to create a trust. LTD contends that the trust commenced with the transfer of the shares – these exchanges occurred within a few weeks of those email exchanges. No explanation is given for the apparent change of heart. Those emails are easily reconciled with a situation in which there was no certainty about how LTD and the property were going to be dealt with.
  10. [54]
    If, as LTD submits, the statements made by James to Robert about the property and the plan agreed upon (the transfer of the shares and the payment out of the mortgage) allow for the drawing of an inference that there was an intention to create a trust, then that intention must have dissolved or changed with the decision to negotiate about the sale of the property to others. There is no evidence, which would satisfy s 11(1)(b) of the PLA, that any intention was maintained or revived during this period when the property was on the market and when negotiations were being undertaken “with a group on the purchase of the property”.
  11. [55]
    The main argument advanced for the Attorney-General was that there is a lack of documentary evidence that would ordinarily be expected to exist if such a trust had been constituted, for example:
    1. there is no company resolution to declare the trust,
    2. there is no documentation, apart from the affidavits in this matter, evidencing the alleged declaration,
    3. there is no evidence that any legal or accounting advice was sought as to the creation of the trust,
    4. there is no evidence of any outward representation by LTD that it acts as a trustee, for example, on letterhead or emails,
    5. invoices which have been issued to the Presbyterian Church of Queensland do not refer to a trust,
    6. LTD did not have a separate bank account (this raises the possibility of “trust” funds being mixed with non-trust funds),
    7. the trust has no tax file number even though a trust is an entity for taxation purposes[19],
    8. there is no evidence of the trust having a separate ABN,
    9. there is no evidence of separate tax returns being prepared or lodged for the trust,
    10. there is no evidence of LTD having been registered with ACNC as a charity,
    11. the title details of the property do not show that LTD holds the property as trustee, and
    12. there is no reference in LTD’s financial statements to the trust.
  12. [56]
    Ms Wheatley KC for the Attorney-General submits that the lack of documentary evidence supports a finding that the objective outward manifestations by LTD are that it did not act as a trustee and that the financial statements of LTD are consistent with it not being a trustee and not holding the property on trust.
  13. [57]
    The gist of LTD’s reply to that submission and all the matters upon which it is based is an acceptance that the circumstances that gave rise to the trust were, using the words of the Attorney-General, “somewhat unusual” and that the documentary evidence that might ordinarily be expected to exist, does not. But that, LTD says, is why this application has been made. And it is why it has come to the Court for assistance. There was, though, no attempt made by LTD to explain why, in the light of the experience of James and Robert (discussed below), none of these things were done.
  14. [58]
    The matters raised by the Attorney-General demonstrate that LTD has not complied with most, perhaps all, of its duties and obligations if it were, in fact, a trustee.
  15. [59]
    These submissions point to the absence of action rather than acting as if a trustee. This absence can be considered, so far as it can be shown, from the time the trust was allegedly created. The relevance of the time at which statements are made or actions done (or not done) was considered in Calverley v Green[20]:

“The evidentiary material from which the court might have drawn an inference as to the intention of the parties included their acts and declarations before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction. Evidence of those acts and declarations were admissible either for or against the party who did the act or made the declaration, but any subsequent declarations would have been admissible only as admissions against interest (Shephard v Cartwright [1955] AC 431 at 445 ; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365)”.[21]

  1. [60]
    Calverley v Green concerned the existence of a resulting trust and required the court to determine the intention of the settlor of the trust at the time when the trust was brought into existence.
  2. [61]
    Evidence of subsequent conduct is admissible when determining whether a trust exists – “whilst evidence of subsequent statements of intention, not being admissions against interest, are inadmissible, evidence of facts as to subsequent dealings and of surrounding circumstances of the transaction may be received.”[22] For the purposes of this case, “the Court may have regard to events which occurred after the alleged creation of a trust as either confirming or denying the existence of the trust.”[23] Subsequent conduct can be just as much an indicator of the coming into existence of a trust as it may be of the existence of an agreement.[24]
  3. [62]
    The Attorney-General’s arguments on this point were adopted by the Liquidator. I turn to the issues raised by the Liquidator – which include that LTD’s conduct does not evidence an express trust for the charitable purpose of advancing religion.
  4. [63]
    The Liquidator referred to the evidence in the affidavits filed for LTD and submitted that:
    1. The accountants who prepared LTD’s financial reports also prepared the statements for Love Your World – they would have been aware of the relationship between those entities and, as Love Your World was a registered charity, what the reporting requirements for a charity were – yet those requirements were not observed.
    2. Robert’s evidence (in his first affidavit) was that he had consulted a solicitor (Louis de Beer) about putting the property “into a vehicle that can never be undone so that it can be used as a ministry house.” He says that Mr de Beer “came up with idea of promissory notes” but then does not say that any other advice about creating a trust was given. Notwithstanding his familiarity with family trusts and the Love Your World charity, Robert does not make any reference to the possible creation of a trust.
    3. Robert’s evidence (in his first affidavit) refers to how he, James and Andrew each had family trusts which, through a company called W2G Assets Pty Ltd, owned a company called Impact Homes Pty Ltd (later called Privium Homes Pty Ltd and then Privium Pty Ltd). This ownership commenced in August 2007. The point made is that James (as well as Robert and Andrew) had been involved in the affairs of personal trusts for more than a decade before the alleged creation of the subject trust. 
    4. The historical company extract for Love Your World (the registered charity to which the shares in LTD were transferred) shows that James was a director from 2012 – 2018. This, and the evidence about Impact Homes, is said to show that James should not be regarded as someone unfamiliar with the management of companies, the nature of personal trusts and the conduct of charities.
  5. [64]
    James, in his First Affidavit, said that he “did not have much experience in structuring companies or dealing with assets and [he] usually trusted Robert to make those decisions and implement them because he seemed to know a lot more about company structuring and asset protection.” But, given his involvement as detailed above, it is difficult to regard James as a complete neophyte with no exposure to the governance of trusts, companies and charities. This, and Robert’s greater knowledge of these types of matters, goes to strengthen the argument that the conduct after April 2020 was not consistent with a trust having been created.
  6. [65]
    Mr Kidston, for the Liquidator, argued that the length of time between the key conversation (late 2018 or 2019) between James and Robert and the actions said to have been taken in consequence of it is relevant to assessment of the circumstances. Further, that the property was put on the market in 2020 is another indication that a trust was not intended. That point has some strength. If James had, by his statements to Robert, made a declaration of trust, then how should the action of offering the property for sale be viewed? It is not consistent with the creation of a trust. It may be consistent with a desire to be able to relieve Andrew of his financial stress.
  7. [66]
    Mr O'Higgins KC contended that what occurred was consistent with the plan agreed upon by James and Robert, namely, the transfer of shares in LTD, the payout of the Westpac loan, and the cessation of use by James, Robert and Andrew of the property as their own and, instead, the use of it for Christian ministries.
  8. [67]
    James, in his First Affidavit, says in a number of places that he did not understand the proposal put forward by Robert. That may be so. But the proposal put forward by Robert is not necessarily consistent with the creation of a trust, it is also open for it to be a means by which the indebtedness of LTD to Westpac is removed and the costs of conducting the property for any purpose are reduced. None of those steps were essential for the creation of a trust. The desired outcome referred to by James could have been attained by amendments to LTD’s constitution.

Was a trust created?

  1. [68]
    I do not accept that “an intention to create a trust is clearly to be collected from the language and the circumstances of the case.”[25]
  2. [69]
    James had some, perhaps limited, involvement with the management of companies and the governance of personal trusts. Robert seems to have been the driving force in that area. There is evidence of the involvement of solicitors and accountants at various stages since the statements James said he made to Robert and Andrew in late 2018 or 2019. I find it difficult to accept that the accountants who were engaged to create the financial statements of both LTD and Love Your World would have done so in the manner evidenced if they had an inkling that LTD was acting as a trustee. The conduct of Andrew, on behalf of James, with respect to the on and off sale of the property, together with the statement that there were negotiations with a purchaser is inconsistent with the existence of a trust. While that conduct occurred before the so-called trigger date of 6 April 2020 it is relevant to the issue of the existence of an intention at the relevant time.
  3. [70]
    The absence of any conduct by LTD which would comply with the duties and obligations of a trustee after 6 April 2020 is relevant. James, Robert and Andrew, through their various corporate identities had engaged professional accountants to assist them. There was nothing to suggest that those accountants had ever been told that LTD held the property as trustee. Mr O'Higgins submitted that this multitude of breaches of corporate and legal responsibilities was simply evidence of incompetence and other failures. I do not accept that. On balance, it is more likely that the arrangements put in place did not present as indicative of a trust.
  4. [71]
    On an examination of all that was said, and done, and not done, I find that it is more likely than not that a trust was not intended to be created and that it was not created. If I am wrong in that, then any intention to create a trust was rescinded or varied by the various actions with respect to the sale of the property. It is unnecessary, then, to consider whether the advice sought under s 106 of the Trusts Act 1973 should be given or that any of the relief sought in the alternative should be addressed.

Orders

  1. [72]
    The application is dismissed.
  2. [73]
    I will hear the parties on costs.

Footnotes

[1] Heydon and Leeming, Jacobs’ Law of Trusts in Australia, 8th Ed, LexisNexis Butterworths, 2016, at [7-08]

[2] Barkworth v Young (1856) 26 LJ Ch 153

[3] Ryder v Taylor (1935) 36 SR (NSW) 31

[4] Barkworth v Young (1856) 26 LJ Ch 153

[5] Di Pietro v Official Trustee in Bankruptcy (1995) 59 FCR 470 at 481 per Sackville J, Tamberlin J concurring.

[6] (1856) 26 LJ Ch 153

[7] Applied in Draper v Official Trustee in Bankruptcy (2006) 156 FCR 53 at [39] and [159].

[8] (1954) 55 SR (NSW) 450

[9] At 467

[10] At 468-469

[11] (1997) 12 BPR 22937

[12] [2024] NSWSC 346

[13] Kauter v Hilton (1953) 90 CLR 86 at 97

[14] Korda v Australian Executor Trustees (SA) (2015) 255 CLR 62

[15] (2011) 243 CLR 253

[16] Byrnes v Kendle, per Heydon and Crennan JJ at [55] where they cited with approval Lord Millett’s judgment in Twinsectra Ltd v Yardley [2002] 2 AC 164 at [71].

[17] Re Schebsman [1944] Ch 83 at 104. See Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 618, Byrnes v Kendle (2011) 243 CLR 253 at [49]

[18] (2011) 243 CLR 253

[19] Income Tax Assessment Act 1997 (Cth), s 960-100(1)(f)

[20] (1984) 155 CLR 242 at 262 per Mason and Brennan JJ.

[21] See also Damberg v Damberg [2001] NSWCA 87 at [45] on the issue of subsequent conduct.

[22] Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 at [64]

[23] Re Tresdar Pty Ltd [2019] NSWSC 179 at [9]

[24] McEvoy v McEvoy [2012] NSWSC 1494 at [3]

[25] Re Schebsman [1944] Ch 83 at 104

Close

Editorial Notes

  • Published Case Name:

    Livin the Dream Pty Ltd v Attorney-General & Ors

  • Shortened Case Name:

    Livin the Dream Pty Ltd v Attorney-General

  • MNC:

    [2025] QSC 21

  • Court:

    QSC

  • Judge(s):

    Martin SJA

  • Date:

    17 Feb 2025

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bahr v Nicolay (1988) 164 CLR 604
2 citations
Jump To
Cite 1 - (1988) 164 CLR 604
Cite 2 - (1988) 164 CLR 604
Byrnes v Kendle [2011] HCA 26
1 citation
Jump To
Cite 1 - [2011] HCA 26
Byrnes v Kendle (2011) 243 CLR 253
3 citations
Jump To
Cite 1 - (2011) 243 CLR 253
Cite 2 - (2011) 243 CLR 253
Cite 3 - (2011) 243 CLR 253
Calverley v Green (1984) 155 C.L.R 242
1 citation
Jump To
Cite 1 - (1984) 155 C.L.R 242
Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353
1 citation
Jump To
Cite 1 - (1956) 95 CLR 353
Damberg v Damberg [2001] NSWCA 87
1 citation
Jump To
Cite 1 - [2001] NSWCA 87
Damberg v Damberg (2001) 52 NSWLR 492
1 citation
Jump To
Cite 1 - (2001) 52 NSWLR 492
Dudgeon v Chie (1954) 55 S.R. N.S.W. 450
2 citations
Jump To
Cite 1 - (1954) 55 S.R. N.S.W. 450
Cite 2 - (1954) 55 S.R. N.S.W. 450
In the matter of Tresdar Pty Ltd [2019] NSWSC 179
1 citation
Jump To
Cite 1 - [2019] NSWSC 179
Kauter v Hilton (1953) 90 CLR 86
1 citation
Jump To
Cite 1 - (1953) 90 CLR 86
Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6
1 citation
Jump To
Cite 1 - [2015] HCA 6
Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62
1 citation
Jump To
Cite 1 - (2015) 255 CLR 62
McEvoy v McEvoy [2012] NSWSC 1494
1 citation
Jump To
Cite 1 - [2012] NSWSC 1494
Re Schebsman [1944] Ch 83
2 citations
Jump To
Cite 1 - [1944] Ch 83
Cite 2 - [1944] Ch 83
Shephard v Cartwright (1955) AC 431
1 citation
Jump To
Cite 1 - (1955) AC 431
Smith & Co. v Messers, LD (1928) 1 KB 397
1 citation
Jump To
Cite 1 - (1928) 1 KB 397
Trustee of the Property of Cummins v Cummins (2006) 227 CLR 278
1 citation
Jump To
Cite 1 - (2006) 227 CLR 278
Trustees of the Property of John Daniel Cummins v Cummins [2006] HCA 6
1 citation
Jump To
Cite 1 - [2006] HCA 6
Twinsectra Ltd v Yardley [2002] 2 AC 164
1 citation
Jump To
Cite 1 - [2002] 2 AC 164

Cases Citing

Case NameFull CitationFrequency
Livin the Dream Pty Ltd v Attorney-General [No 2] [2025] QSC 361 citation
1

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