There is no Such Thing as a Sham Trust

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, settlor trustee must have common intention not create trust. Post-Wilson, debate continues over precise elements render sham. Law Commission suggested doctrine, as means analysing validity an express trust, may be best approach. A better starting point would return certainty requirement. In arguing Commission's recommendation correct, this article will discuss three legal issues: whether unilateral or bilateral transaction; excluded evidence has always been part objective requirement; legislative policy factors made foreign law distinct from law. Finally, expand test proposed by Commission.