Law Essay Example | Topics and Well Written Essays - 3500 words

Law - Essay Example Byrne had been married in 1970 and separated early in the year 2007. 1 They were aged 57 and 60 years old respectively at the time of their marriage, but previously, both had been in other marriages and each had children from the retrospective unions. Martin Byrnes was one of Mr.’s Byrnes children from a previous marriage. Q.2 Whether a deed in which a Mr. Byrne acknowledged holding a half undivided in the realty purchased and registered exclusively in his name as the sole proprietor in Brighton, South Australia in 1984, or for Mrs Byrnes it amounted to the creation of valid trust? Whether the creation of trust was the real subjective intention of the husband or if it was only obtained objectively from the deed that had been signed according to the acknowledgment trust deed (1989 deed)? If such a trust was created as per the deed, or whether the husband as a trustee was duty bound to lease or let out the property and obligated to receive rental fee on his wife’s behalf? In case such were the case, did Mr Byrne’s failure to collect rent from the son who had leased the property amount to a breach of the trust? If this is the case, did the wife’s knowledge of the Mr. ... rust according to him, the deed was only intended to acknowledge the plaintiffs entitlement to half the proceeds realty upon its sale (Clarke 2011).2 Furthermore, even if he was a trustee as purported by the plaintiff, the 1997 deed did not explicitly denote his duties and responsibilities to the wife, indeed it did not require him to play any active role or perform any duties as one. Therefore, he was not under legal obligation to let out the property or collect the proceeds of such enterprise on behalf of his wife. Finally, the claimed estoppel as defense based on the fact that the wife had Knowledge of the leasers non-payment and took no action to encourage him to take action was acquiescence in the husbands failure to collect the money and thus they were precluded from any rights to make complains about the defendant’s alleged breach of trust as they would have been equally in breach if by virtue of her compliance in his non action. Q.3b The District court found that the p laintiff was entitle to half of the proceeding from the sale of the real estate in line with the stipulation of the 2007 deed: Nevertheless, in regards to being owed half the rent which Mr. Byrens had allegedly failed to collect, it found for the defendant; the court approved the husbands contention that pursuant to the 1997 deed, no trust had been established because the despite the existence of a document on the contrary, the husbands was without the requisite intention. The district court judge made this pronouncement by relying on the high-court’s decision in the: Commissioner of Stamp Duties (Qld) v Jolliffe (1920) where it was determined that in the endeavour to determine the existence of a express trust, evidence may be pursued beyond the deed of trust. In consonance with the