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The Full Court of the Federal Court of Australia (Black CJ, Kiefel and Finkelstein JJ) has just roundly rejected the proposition that a common intention constructive trust does not come into existence until declared to do so by the court: Parsons and Parsons v McBain [2001] FCA 376 (5 April 2001) http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/376.html. (To my mind, this part of the judgment relies on a rather strong reading of Giumelli v Giumelli (1999) 196 CLR 101.)

In doing so, it overruled Re Osborn; Ex parte Trustee of the Property of Osborn (A bankrupt) v Osborn (1989) 25 FCR 547. It also rejected Secretary, Department of Social Security v Agnew (2000) 96 FCR 357 which appears to have held that there is a discretion as to the date on which such a trust comes into existence.

Naturally, both holdings are to be regretted!!

Simon Evans

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Dr Simon Evans
Faculty of Law
University of Melbourne
VIC 3010
Phone: +61 3 8344 4751
Fax: +61 3 9347 2392
WWW: http://www.law.unimelb.edu.au