Thynne v Jevny Pty Limited [2022] NSWSC 1774

P lodged a caveat on a property owned by D in Darling Point, Sydney. D sought its removal.

P was the deceased’s son by an earlier marriage. After P’s birth, the deceased married D and they had another child together: [4] - [7]

The deceased operated a cattle and macadamia business on land owned by an entity the deceased and D themselves owned and controlled: [9], [10]

In 2011 the deceased made a will and a Memorandum of Wishes. D counter-signed the latter: [12] - [15]

By the Will the deceased bequeathed the property to D. By the MoW, D agreed to bequeath the property (or its replacement if the property was sold and a new property was bought) to P and the other child in equal shares. Until then the deceased acknowledged D may need to use the proceeds of sale of the property for their upkeep, or for the cattle and macadamia business: [17]

(Perhaps unhelpfully, the deceased wished for the MoW to remain confidential: [18])

P sued seeking a declaration D held half the property on trust for them and lodged a caveat on the basis of this alleged trust: [21], [22]

D sought the removal of the caveat, including to allow them to deal with the property (possibly by refinancing) to help manage the farm and its business in the wake of flooding: [29], [30]

P argued that their (and their half-sibling’s) interest in the property was held by D on trust created by the MoW: [32]

P accepted D was free to sell the property: [33], [35]

The Court found D accepted their obligation under the MoW to make a will bequeathing the property to the children equally. There was no suggestion D did not intend to do so: [36], [39]

D’s “floating” obligation to bequeath the property to the children will only crystallise into a trust on D’s death, not before: [38]

As such, P had no beneficial interest to support to caveat: [40]

Even if a caveatable interest had been found, it was accepted that the caveat caused D inconvenience. However, P had the onus to show convenience favoured maintenance of the caveat and P failed to show that: [45], [46]

P was ordered to remove the caveat and pay D’s legal costs: [47], [48]

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