Scott v Pauly (1917) 24 CLR 274 (HC of Australia)
Resulting Trusts – Parent and Child – Property – Gift – Presumption of Advancement
Facts
Before a mother died, she had made a will and she had also purchased some property. She had transferred this property to her daughter. There were several letters that detailed the mother as acquiring this property and further to this, evidence that the daughter had given her mother the rent that was a result of the property while she was still alive. There was subsequently disagreement between the executors and her daughter upon her death regarding the property in question.
Issues
This case concerned whether the daughter held the property as the trustee for her mother or whether it had been a gift. Based on the letters and rent, the judge had held that a resulting trust for the mother was intended, yet on appeal, the judge held that this was in fact this was intended as a gift of beneficial interest to her daughter. The case was appealed to the High Court of Australia on the presumption of advancement.
Decision/Outcome
The High Court of Australia dismissed the appeal. The judge believed that based on the evidence, the transfer of property was intended to be a gift. The issue of her daughter giving rent to her mother while was she alive was viewed as not being unusual or unnatural in the circumstances. Thus, the mother had beneficial interest in the property gifted to the daughter, despite the presumption of advancement normally only arising between father and child.
Updated 20 March 2026
This case note describes Scott v Pauly (1917) 24 CLR 274, a decision of the High Court of Australia concerning the presumption of advancement and resulting trusts. The case summary is broadly accurate as a description of the historical decision.
Readers should be aware of several important developments in UK law that affect the wider legal context of this case. The presumption of advancement as between father and child (and certain other relationships) has been significantly curtailed in England and Wales by section 199 of the Equality Act 2010, which abolished the presumption — though this provision has not yet been brought into force and so the common law presumption technically remains in England and Wales for now. The Law Commission has previously recommended its abolition. As an Australian decision, Scott v Pauly is persuasive authority only in UK courts and its direct application is limited. The article’s observation that the presumption of advancement did not traditionally apply between mother and child remains an accurate statement of the historical common law position in both England and Australia, though the broader law of resulting trusts continues to evolve. Students should supplement this case note with reference to current English authorities and legislative developments.
