Resulting trust

Penner Chp 5:
feofees - 公共不動產管理人
feoffments - transfer of land or property to the other given the other the total right to sell it as well as the right to pass it on to his heir feoffments to use were so common, equity assume that this was the normal basis upon which land is conveyed.
This is called the presume resulting trust.  This presumption is not abolished today yet, probably the court usually could find sufficient evidence to know what the actual intention of the parties, on balance of probability
RT: 2 kinds: Presumed RT and Automatic RT
PRT: 2 kinds: voluntary transfer PRT and purchase contribution PRT
Purchase contribution PRT: IF, A pays C to transfer property to B Presumes, B holds property on trust for A
Difference between these 2 types of RT:
Megarry J in Re Vandervell (No.2) - ART does not depend on any intentions or presumptions, but is the automatic consequence of A's failure to dispose of what is vested in him

PRT: s.60(3)1925 Act, a RT is not to be implied merely because there is no express statement saying that this is a gift, not a trust
Lohia v Lohia - it did abolished the presumption
Ali v Khan - agrees wiht L v L
(N.B. the section does not abolish the presumption in purchase contribution PRT cases)
Fowkes v Pascoe - the presumption is rebutted since there is no other conceivable reason for her to transfer the stocks to him (Mrs Baker treated Mr Pascoe as a grandson, there is evidence that she intended to give the stocks to Mr Pascoe as a gift)
Re Vinogradoff - woman buy loan stock into joint names of herself and her 4-year-old granddaughter.
Held - presumption not rebutted - infant hold the stock on resulting trust (L: W + baby, e: W)
contribution in purchase contribution PRT should be read as "purchase contribution in money or money's worth"
Springette v Defoe - sitting tenant (現任租戶)
Assume A and B buy a house which costs GBP50,000.
A pays GBP10,000. Mortgage provides GBP40,000, under which both A and B are liable.
A's equitable share: (10 + 40/2)/50 x 100% = 60%
B's equitable share: (40/2)50 x 100% = 40%
If the house doubles in value; GBP100,000.

Assuming after paying the mortgage loan, the profit is GBP40,000. A gets 24k, B gets 16k.
The presumption of RT: In order for A to get the benefit of presumption, he only has to provide evidence of the transfer itself. A does not have to prove that B provides no consideration. B will then give evidence. E.g. shows that he pays for the car, written contract of sale.
B is said to rebut the presumption of RT.

What is the content of presumption of RT? 4 theories:
i) the law presumes that the transferor declares an express trust over the property now in B's hands (Swadling)
ii) A intended B to hold the property for A on trust (Mee)
iii) A did not intend for B to take the title to the property beneficially (Penner)
iv) no legal basis to which B can point to show that A intended B to receive the property for his own benefit (Chamber & Birks)

Different theories will give different result. e.g. payment by mistake. If you use theory (i), A does not intend to declare an express so no RT. If you use theory (iii), A did not intend for B to take beneficially, so there is a RT.

 i) criticism: it cannot explain many cases. Re Vinogradoff - if using this model, this case is wrongly decided. Penner pointed out that this model is still wrong because in family home cases, it does not seem that the husband has expressly declares an express trust.(my question, is it still RT? L: H, e: H+W)

Midland Bank v Cooke. Swadling would say, these are actually constructive trust, rather than presumed resulting trust. Because the wife's contribution is simply a factor in finding a constructive trust. (my question: if wife contributes
purchase contribution)

ii)
iii) 5.20 -24 skip - please read later Presumption of advancement: only father to child, or husband to wife.

Court will infer that a man is making a gift

Sekhon v Alisa -No presumption of advancement from mother to child, unless the mother is a widow If man wants to show that the transfer is not a gift, he has to provide evidence. 2 ways to understand the relationship between the 2 presumptions >> it is a second step to presumption of RT: where father leads evidence to overcome the presumption of advancement, the presumption of RT falls back into place >>there is no presumption of RT in cases where presumption of advancement applies.

Laskar v Lasker - suggests that the presumption of advancement might apply between mother and daughter as well
Antoni v Antoni - pres. of advancement operates between parent and child
Pecore v Pecore (Canadian case) - pres of advancement operates between parent and minor child
McGrath v Wallis - the pres of advancement is rebutted because:
1) putting the property under the son's name would assist an application of a mortgage
2) declaration of trust is drawn up by a solicitor (although never executed)
3) father is 63 years old, good health, no obvious reason that he is making a gift to his son.
The court did not say there is a purchase contribution RT in this case, rather the court declare a trust and determine the equitable shares based on their intention objectively
ART: what the s'or fails to give away, he keeps. Swalding and Chambers does not agree, because in the beginning s'or has a title, but at the end of story he has an equitable title, so we cannot say that he "keeps". It really just fails, leaving him exactly as he was before. So, Swalding thinks there is no ART at all.

The nature of corporate personality

Saloman v Saloman - at that time the Company Act required that there be seven members of the company. Saloman and family hold shares, paid:
-GBP10,000 worth of debentures giving a charge over company's asset,
-GBP20,000 of GBP1 shares
-GBP9,000 cash Mr Saloman then paid off all creditors in full
So he holds 20001 shares, his family hold 6 shares Insolvent >>
CA: shareholders has to be bona fide but here the family hold the shares just to comply with the Company Act
HL> irrelevant, there is a separate legal personality in this case. (But Mr Saloman is a sole trader operating through a corporation)  

Macaura v Northern Assurance - Mr Macaura sold timber to a company, he then insured the timber. Fire destroyed timber, HL: Timber belongs to company, not Mr Macaura company's asset (timber) belong to the company, not its shareholder
Lee v Lee's Air Farming - Mr Lee owned all shares, he is also the pilot. Plan crashed, widow claimed $ and said Mr Lee is a worker. NZ: no. Privy Council: yes because the company and Mr Lee were disctint legal entities

Note: s.3(4) CA 2006 still allows unlimited company to be formed.
Debenture - company can raise money by issuing debentures, it is like an acknowledge of debt, it evidence the fact that the company is liable to pay back a specific amount with interest. The money raised does not become part of the share capital.
Liquidator - a court appointed official