PRT

Presumed Resulting Trust

Arises when either:

• Gratuitous transfer of pty from A to B, B will be presumed to hold on trust for A <Hodgson v Marks>

• A pays all or part of the purchase price for pty that is transferred to B <Dyer>

--> Unless evidence that something else is intended, default position: B is intended to hold pty as trustee for A

^PRT: assumption that A does not intend to make a gift to B, but intends that B should hold on trust for A

• PRT arises from the moment the recipient's conscience is affected <Westdeutsche>

*Rebuttable: Ct searches for true intention of the parties - Q: whether A intended to retain ownership of pty or to make a gift of it <Tang Kim Kwan Patrick>

• Only payments made at the time of the acquisition raise PRT

• mortgage payments, that are made over a period of years, after the time of acquisition --> too late to give any beneficial interest under PRT <Curley v Parkes>

PRT is rebuttable:

1. Proof of an intention by A to benefit B <Fowkes v Pascoe>

2. Through the operation of the presumption of advancement <Dyer>

3. Neither intended a resulting trust nor a gift but had some other transaction in mind

2. Presumption of advancement

• rebuttable presumption that A intends to make a gift to B

- transfer from H to W <Tinker>

- transfer from a man to his concubine <Li Hung Chan>

- transfer from father to a child <Wong Fu Cheung>

- transfer between mother to child - weaker <Bennett>; obiter dicta in <Suen Shu Tai> - POA applies to transfers from mother to child to the same extent as it applies to father to child

X unmarried cohabitee -> POA X apply

--> acts as an aid for Ct to decide question (like PRT): search is still for the actual intention of the parties

Quantifying beneficial interest

• Unless one person supplied the whole of the purchase price - PRT gives rise to an equitable tenancy in common

• beneficial entitlement is quantified by looking at the extent of his or her contribution to the purchase price

^if contributed half of purchase price - then B has one half equitable interest in pty!

Mortgage payments become relevant in the question of valuation ONCE it is shown that the person accepting the liability or making the payment is a beneficial owner ​​: <Laskar>:

- Two mortgagees accepted joint liability under a mortgage each should be credited with a beneficial share on the basis that each and contributed half o the mortgage advance

Illegality

GR: not ordinarily allow an unlawful purpose to be pleaded to establish PRT or CICT <Barrett>

• fact that transfer may have been made for an unlawful purpose is irrelevant IF the person who made the transfer does NOT need to plead the unlawful purpose <Tinsley>

POA - If person seeking to prove the trust, need to give evidence of the unlawful purpose to establish that no gift was intended

• unlawful purpose can ONLY be relied upon if the transferor has abandoned the unlawful purpose before implementing it

--> reason for transfer from father to son was to deceive creditor: father allowed to bring evidence of his unlawful purpose where he managed lawfully to reach an arrangement with his creditors w/o trying to deceive them as intended <Tribe>

--> once the deception has taken place, it will not be possible to give evidence of the unlawful purpose to rebut the presumption of advancement