Article on Mutual Intention in Establishing an Express Trust

Peter H. Kwag recently published an Article entitled, Unified Test of Intention in Express Trusts: Korda v. Australian Executor Trustees (SA) Ltd, Sydney L. Rev. (June 2015). Provided below is an abstract of the Article:

In Korda v Australian Executor Trustees (SA) Ltd, the High Court unanimously declared the paramountcy of mutual intention in establishing an express trust, overturning the decisions of the Supreme Court of Victoria at first instance and the Victorian Court of Appeal. In the process, the High Court held any alternative approach to be an irrelevant consideration. The decision illustrates that the sole function of contextual factors, comprising all matters other than clear language at the outset, is to evince the mutual intention of the relevant parties. In the absence of explicit terms giving rise to a trust relationship, all considerations pertaining to the nature of the transaction, including circumstances and commercial necessity, stipulations on use or allocation, the protection of particular interests and notions of conscience, serve as mere input in this orthodox sequence. A simplified, uniform approach may also promote consistency and predictability, two central tenets underpinning the judicial system.