Byrnes V Kendle Case Study

942 Words2 Pages

Question 1: The form of intention required for the creation of an express trust was scrutinized in Byrnes v Kendle (2011) 243 CLR 253. The judgements by French CJ, Gummow and Hayne JJ and Heydon and Crennan JJ, provide insight into the current legal standpoint on the relevant form of intention. Justices Heydon and Crennan found that the intention should be determined by “the words used, not a subjective intention which may have existed but which cannot be extracted from those words.” They went on further to suggest that the “subjective intention is irrelevant both to the question of whether a trust exists and to the question of what its terms are.” Justices Heydon and Crennan made analogy between the form of intention required in express trusts with the intention of contracts, statutes and The Constitution, that is, they are all to be construed objectively. Justices Gummow and Hayne similarly found that “the relevant intention is that manifested by the declaration of trust.” They added that there need not be any inquiry into the “subjective or ‘real’ intention of the settlor” as this is unnecessary for the establishment of a trust. Chief Justice French agreed with the reasons of Gummow and Hayne JJ, however not to the same extent. The decision in Byrnes was pivotal on the case of Commissioner of Stamp Duties (Qld) v Jolliffe (1920) 28 CLR however French CJ acknowledged that Jolliffe involved the sham doctrine, which he thought should not apply to Byrnes v Kendle. Therefore French CJ does not challenge the subjective intention approach in such an intense way as the rest of the bench does. Question 2: In the past, Jolliffe has provided authority for the proposition that the subjective intention of a settlor should be consider... ... middle of paper ... ...nd any relevant circumstances concerning the relationship between the parties. If the respondent did express to others his intention and there was a direct conflict between that intention and the trust document, the respondent could rely on the principles in Saunders as set out in question 3. The evidentiary onus would be on the respondent as the contradicting party to show a contrary intention. If the respondent did express his intention to others, that would appear to be necessarily strong evidence to rebut the decision in Byrnes. It seems appropriate to use the surrounding circumstances in this case in order to find the objective rather than subjective intention. If he had told others of his intention, unlike in question 1, it would no longer be a hidden intention. It would more likely form part of surrounding circumstances rather than merely an oral averment.

Open Document