Amit Laundry Pty Ltd v Jain

Solicitors: Western Sydney Legal (Plaintiff) Mills Oakley (Defendant) File Number(s): 2016/00361471 Publication restriction: Nil

Judgment

1. HER HONOUR: This matter involves a dispute as to the ownership of a property in Guildford (Property A), the sole registered proprietor of which is the defendant, Mr Rajil Jain. Without intending any disrespect, I will refer to the defendant and the various family members involved in the present dispute by their first names.
2. Property A was acquired in June 1999. Since its acquisition, the ground floor of Property A has been occupied by the plaintiff, Amit Laundry Pty Ltd (Amit Laundry), which (as its name suggests) conducts a laundry business from that part of the premises. From 2003, the upper floor of Property A has been occupied by Rajil and his immediate family as their home. From around 2008, Amit Laundry has paid rent to Rajil for the occupation of the ground floor premises (since February 2017 this has been expressly on a without admissions basis).
3. By statement of claim filed 12 January 2017, Amit Laundry seeks, among other relief, a declaration that Rajil holds the title to Property A as trustee upon trust for it under a resulting trust. The presumption of resulting trust is said to arise from the payment by Amit Laundry of the purchase price for the property (by way of payment of the initial deposit and then by the making of the mortgage repayments in respect of the funds borrowed by Rajil and his two brothers, Amit and Vinay, for the acquisition of the property).
4. In the alternative, Amit Laundry claims a declaration that the property is held on trust for it under an express or implied trust in accordance with the terms of an agreement said to have been reached between the directors of Amit Laundry (at the time, those being each of Amit, Rajil and Vinay and the wives of Amit and Rajil - Abha and Sharmilla, respectively) in relation to the acquisition of Property A in the joint names of Amit, Rajil and Vinay (the Acquisition Agreement, as pleaded at [7] of the statement of claim - see [143] below).
5. By way of further alternative relief, Amit Laundry claims a declaration that Rajil holds his title to Property A upon trust to permit it to use the laundry premises for the conduct of its business for so long as it continues to operate its business from those premises upon condition that it is responsible for the payment of water rates in respect of the property.
6. Rajil denies that he holds Property A on trust for Amit Laundry (be it resulting, express or implied). He asserts that he holds both the legal and beneficial interest in Property A. In answer to any presumption of resulting trust that may (contrary to the position for which he contends) be found to have arisen, he invokes the presumption of advancement in his favour. A cross-claim by Rajil in relation to a "re-characterisation of the mortgage repayments" (presumably as to the loan in respect of Property A) was foreshadowed at the outset of the hearing (T 1) but not pursued.
7. The present dispute, though involving a corporate plaintiff, is an unfortunate example of a falling-out between members of what appears to have been a close family in which the father (Ramesh) was concerned to ensure that each of his sons and their families were established in life (with property held in each son's name) and the three sons (Amit, Rajil and Vinay) paid at least outward deference to the wishes of their father in relation to family matters, including the distribution of moneys derived from the laundry business that Ramesh and others in the family saw as the "family business".
8. The genesis of the dispute was the entry by Rajil, in late 2016, into a contract for the sale of Property A with vacant possession to a third party and the consequent service, on about 4 November 2016, of a notice of termination and to quit in respect of Amit Laundry's lease of the laundry premises, requiring Amit Laundry to vacate the premises within one month. Amit Laundry did not vacate the premises and instead commenced the present proceedings, seeking in the first instance (and obtaining) interlocutory relief to preserve the status quo.
9. For the reasons that follow, I have concluded that: there was no express or implied trust as alleged; a presumption of resulting trust arose from the contribution by Amit Laundry as to the deposit (but that the mortgage repayments by it do not count as contributions to the purchase price for the purpose of such a presumption) and by Amit as borrower under the loan facility entered into with his brothers; there was not a sufficient relationship to give rise to a presumption of advancement (and, if there had been, it would have been rebutted); and that the presumption of resulting trust has not been rebutted. Hence, relief will be granted on the basis that, at the time of acquisition of the property, Rajil and Vinay held Property A in favour of the contributors to the purchase price in proportion to their unequal contributions, namely as to 9.08% in favour of Amit Laundry and as to the balance (90.92%) apportioned as to one-third each as between Amit, Rajil and Vinay. Given that Vinay has since transferred his share in Property A to Rajil, this means that Rajil now holds the property on a resulting trust as to 9.08% in favour of Amit Laundry and as to one-third of the balance in favour of Amit. Rajil's beneficial interest in Property A is thus two-thirds of 90.92% (60.61%).

Family's arrival in Australia

1. Ramesh Chandra (Ramesh) immigrated to Australia with his wife and their three sons in June 1984. Their entry to Australia was sponsored by Ramesh's sister (Sarita). At the time of their arrival in Australia, Amit was 18 years old; both Rajil (who is about two years younger than Amit) and Vinay, the youngest of the three sons, were then still of school age. Rajil and Vinay both completed their schooling in Australia and went on to undertake further study (Rajil, a two year associate diploma course in chemical technology at a local TAFE; Vinay, a pharmacy degree at university). Amit commenced, but did not complete, a TAFE pathology course. He says that he discontinued his studies when the laundry business was purchased ([9] of Amit's affidavit of 18 June 2017).
2. At some time not long after the family arrived in Australia, Ramesh was involved in a car accident, sustaining physical injuries that rendered him unable to work in the construction industry, as it seems he had done for a short period after his arrival in Australia (see the statutory declaration dated 17 December 1985 signed by Ramesh after his accident - Exhibit G). In that statutory declaration, which must have been prepared by someone else as Ramesh has difficulty reading and writing English, reference is made to Ramesh's cultural background and it is stated that he felt his position "as head" of the family had been "compromised" as a "result of not been able to forfil [sic] my tasks as a bread-winner for my family" (p 3). The statutory declaration also includes a statement that Ramesh was finding it extremely difficult at times to relate to members of his family; and to him suffering anxiety and depression. In his oral evidence in these proceedings Ramesh did not recall the statutory declaration or its contents (T 197.49). In any event, what is relevant (in terms of what income Ramesh had available to him at around the time of the acquisition of the laundry business and later) is that Ramesh has been in receipt of a disability pension since the car accident.

Acquisition of laundry business

1. In March 1985, some months before the date of Ramesh's accident (assuming the date of accident is accurately recorded in Exhibit G as 10 November 1985), Amit signed a contract to purchase a laundry business (Exhibit A).
2. The laundry business was known, according to the contract for sale of business, as A&D Laundry but, according to Ramesh (and Rajil), was called "Westinghouse Coin Operated Laundry" at the time of the purchase (see, for example, the affidavit sworn by Ramesh on 24 March 2017 at [5]). The laundry business operated out of leased premises in Guildford (Property B). Property B is adjacent to the later-to-be-acquired Property A, the subject of the present dispute.
3. There is a dispute amongst various of the family members as to who purchased the business (or perhaps, more accurately, as to whose business it was regarded within the family as being). Ramesh (see, for example, at [5]; [6]) has deposed that it was he who bought the laundry business, with a loan from his sister and her husband. Rajil, who was still at school at the time, has similarly deposed that the laundry business was bought by his father using money loaned by his aunt to him (see [13] of Rajil's affidavit sworn 24 March 2017), although in an earlier affidavit (sworn 12 December 2016 at [5]) Rajil had deposed that both his mother and father had started the family laundry business and that it was conducted "solely at the direction and control of the family patriarch and family matriarch" (i.e., Ramesh and his wife). Rajil's recollection is said by him to have been derived from what he heard (as a teenager) in discussions within the family at the time (see T 156.43).
4. As will be seen, there is a common theme in the evidence of Ramesh and Rajil to the effect that Ramesh made all the relevant decisions (as the primary decision-maker); whereas Amit is adamant that the laundry business was his and that he made the relevant decisions in relation to that business (including as to the acquisition of Property A), though he does not dispute that there was discussion (or perhaps consultation) with his father as to those matters. Exhibit A, however, makes quite clear that from a legal perspective the purchaser was Amit.
5. Both Ramesh and Rajil explain Amit's name on the contract for purchase of the laundry business as being, in essence, for convenience due to Ramesh's language difficulties. While the language issue might well explain why Amit, not Ramesh, was named as the purchaser, it does not alter the fact that Amit was the person who in fact acquired the laundry business. Whether he might be said to have done so as agent for his father was not explored in argument (and not disclosed in the contract for sale). That said, Amit accepted in cross-examination that the operation of the business was to support the family and its financial needs (T 36.46) and it is clear from the evidence that the revenue from the laundry was used to support the acquisition of property and business opportunities for various family members over the period up to and after the incorporation of Amit Laundry.
6. Insofar as Ramesh's affidavit might be read as suggesting that the purchase of the laundry business was a decision made as a consequence of "a turn of events" that included the motor vehicle accident (see [4]), this is inconsistent with the time at which the accident is recorded in his statutory declaration as having occurred; as is Rajil's March 2017 affidavit (at [11] - if, which is not clear, the change in circumstance to which he there refers includes a reference to the motor vehicle accident).
7. It is not disputed that the purchase price of $19,000 for the laundry business was funded by way of a loan from Sarita (though Ramesh and Amit differ as to who was the recipient of the loan). Amit has deposed that he paid back the money lent by Sarita from moneys earned from operating the laundry business (affidavit affirmed 15 December 2016 at [4]-[5]). Whether the loan from Sarita was made by her to Ramesh or to Amit, it is clear that any repayment of that loan must have come from the revenue of the laundry business, since the only other "family" income of which there is evidence at around that time was Ramesh's disability pension (and even then this would only have been after the motor vehicle accident) or other government benefits (see Exhibit G).
8. At some stage (Rajil puts this as occurring at some time in 1988 - see [15] of his March 2017 affidavit) the name of the laundry business was changed to that of "Amit Laundry". Rajil deposes that his father made the decision to change the name of the laundry business ([15]). Ramesh's evidence is to the same effect. He says that he called the business "Amit Laundry" because of "our culture and tradition", Amit being the eldest son (see at [6]). I will return in due course to the significance of the family/Indian culture in the present case. For the moment I simply note that Amit himself accepted in cross-examination that, as a matter of family culture or tradition, as the eldest son he was in a position of greater responsibility and authority in the family than his brothers (see T 35.49).

Assistance of family members in laundry business

1. There is also some dispute between the parties as to who was responsible for the management of the laundry business and the level of assistance provided by the family members in that business from time to time (including, from 1993, Amit's wife, Abha, and Rajil's wife, Sharmilla).
2. Ramesh says in his affidavit that he managed the cash flow, including income and expenditure for the business; that he was the sole operator who managed the deposits and withdrawals from the single bank account for the family business and that (though Amit's name was also recorded on the account and Amit "possessed authority to make withdrawals or deposits into the account") as a matter of practice "and by reason of our family dynamics" Amit "did not do so and certainly not without my prior agreement" (my emphasis) (see Ramesh's affidavit at [7]). (The last part of that sentence, of course, implicitly accepts that Amit did do what in the first part of the sentence it is said he did not.) Ramesh's evidence in the witness box suggests that he did not himself go to the bank to make deposits or withdrawals (see below) and Rajil did not suggest otherwise). Q. … I'm suggesting your son Amit brought the cash home each day in the cash box. A. INTERPRETER: No, I used to bring it. Q. Each day you would write the cash takings for that day in your exercise book, wouldn't you? A. INTERPRETER: Please say it again. Q. Each day you would write the cash takings in your exercise book, wouldn't you? A. INTERPRETER: Whatever I used to earn in the shop, I used to enter that. Q. From time to time when you held cash surplus to what was needed for household expenditure, you asked Amit to bank that spare cash, didn't you? A. INTERPRETER: Please say it again. Q. From time to time when you had spare cash, you asked Amit to deposit that cash at the bank, didn't you? A. INTERPRETER: I do not remember. Q. The deposits of cash that you asked Amit to make, you wrote up in your exercise book also, didn't you? A. INTERPRETER: I do not remember anything like that. … Q. You were not a signatory to the bank account that your son Amit used for the purposes of running the laundry business, were you? A. INTERPRETER: I do not know. Q. In paragraph 7 you said that, "Amit possessed authority to make withdrawals and deposits into the account." Do you recall that? A. INTERPRETER: No. Q. I suggest Amit was the only person with authority to make withdrawals to that account. Do you agree with that? A. INTERPRETER: I do not remember this. … Q. Does that mean that every deposit and every withdrawal from the account you authorised in advance of Amit making any of those payments or withdrawals, is that what you say? A. INTERPRETER: Agreement in the sense whenever there will be need, he would be withdrawing. Q. You didn't exercise any control over business expenses of operating the Amit Laundry business, did you? A. INTERPRETER: What sort of control? Q. Control over the income deposits and the withdrawals from the account. A. INTERPRETER: I do not remember about those days. Q. Very well. At no stage did you exercise control over Amit's ability to make deposits and withdrawals from the bank account either before or after incorporation, did you? INTERPRETER: Could you please paraphrase that? Q. At no time did you control Amit's ability to make withdrawals and deposits into the account either before or after incorporation of the laundry business. A. INTERPRETER: He is to ask me and do it. (which was followed by Ramesh's inability to recall any occasion when Amit had requested funds and he had refused them).
3. Rajil deposes (at [16] of his March affidavit) that his father "was always the primary decision maker of the family" and that this extended to the family business. He says that his father managed and controlled income and expenditure for the family and for the family business (the laundry business) and that his parents worked full time in the laundry business while he and his brothers pursued their studies (including in this the time during which Amit was undertaking the TAFE pathology course in which Amit had enrolled) ([14]). Rajil identified his mother as doing the physical labour in the laundry business and his father taking on an administrative/managerial role. He described Ramesh's role (in addition to that of primary decision maker for the family and in relation to the management of the money from the laundry business) as being a "mental health" role (at T 159): Q. That was the only role that he had in the area of administrative or managerial functions for the laundry, wasn't it? A. Plus making decision for the family. Plus he used to go to laundry, just sit there and just watch. So it was mental health for us that okay, somebody elderly is there who can guide you. Q. He would just sit there, wouldn't he? A. Sorry? Q. He would just sit there? A. Of course.
4. While Amit accepts that his mother worked full time in the laundry business until about 1988 ("mainly drying and folding laundered articles"), in his affidavit he deposed that his father "was not involved in the business" (Amit's 15 December 2016 affidavit at [7]). That evidence must be qualified by his acceptance in cross-examination that his father managed the money from the laundry business (T 38.5 and see T 37.4). Amit's evidence must thus be understood as being that his father did not have a physical role in the laundry work (and that seems not to be disputed).
5. I accept that Ramesh's role in relation to the management of the money from the laundry business involved keeping exercise books in which he (and in some instances his wife) recorded the daily takings from the laundry business and expenditure for the family's day to day needs (such as for groceries and the like) and for at least some business items referable to the laundry. How extensive those records are (and their actual content) cannot here be determined - first, because only a few exercise books were produced (during the course of the hearing) by Amit Laundry in answer to a call for the production of such books (and hence they were only able to be interrogated on the run, so to speak), and, second, because the exercise books (the tender of which was ultimately not pressed) are written in Hindi and the evidence given orally in the witness box on this issue (with no disrespect to Counsel for both parties) left me little the wiser. In essence what seemed to be generally agreed by Counsel in that respect (see T 276ff) was, as I understand it, that there were mixed entries in the books; that some were in Ramesh's handwriting and some in his wife's handwriting; that not much could be drawn from the description on the book covers as to the contents of the books; and that the books included both records of household income and expenditure as well as some business items.
6. As to the sons' involvement in the laundry business, Rajil's evidence was that while he and his brothers pursued their studies they helped out in the business on a part time basis ([14]) - he said that he was doing "pressing and washing" and in oral evidence he said that he continued to do this after his TAFE studies: Q. After TAFE, what work did you do? A. After TAFE, same, helping, helping at the laundry.
7. It is fair to say that Amit downplays the assistance given by Rajil and Vinay while each was at school, saying that Rajil (as did Vinay) would come to the business after school (to do homework and because the laundry was close to the train station) and would sometimes assist in the business with the ironing ([7] of his 15 December 2016 affidavit). Nevertheless he accepts that from about 1993 both he and Rajil were working in the business (Amit at [7] of his 15 December affidavit; Rajil at [14] of his March 2017 affidavit). Amit qualifies this by saying that at the same time Rajil was conducting his own part time business making and selling computers ([7]), whereas Rajil's evidence in that regard is that his interest in computers was only a hobby. From 1993, Amit's wife, Abha, and Rajil's wife, Sharmilla, also provided some assistance in the laundry business (although the extent of this is disputed and ultimately nothing turns on it). What is not disputed is that, at least from the time Amit ceased his studies at the local technical college, Amit worked full-time in the laundry business.
8. I should note that Rajil's evidence that he was working full time in the business from 1993 until about 2004 is on its face inconsistent with his acceptance that he was in receipt of unemployment benefits for a considerable number of years from 1990 to 1996 (i.e., for at least part of the period in which, in these proceedings, he has deposed he was working full-time in the laundry business). Rajil sought to explain this by saying that he was looking for work at the time and that he did not receive any money for his work in the laundry business (see T 154): Q. You told Centrelink you didn't have any work. A. Yes, because I was looking for work, but I was helping at the laundry, and I was looking for work. Q. When did you first go on unemployment benefits? A. I cannot remember. Q. Was it after you finished TAFE? A. Maybe. I cannot remember. Q. Were you on unemployment benefits until the company was incorporated in 1996? A. I cannot remember. Q. That's certainly a possibility, isn't it? A. Sorry, I cannot remember. Q. In all events, you were on unemployment benefits for a considerable number of years between 1990 and 1996, correct? A. Yeah. Q In order to obtain the unemployment benefits, you told Centrelink you didn't have any work, you didn't have any job. A. That's right, that's right, but I worked at the laundry but I did not get any money from the laundry.
9. Leaving aside the question as to whether Rajil's claim for unemployment benefits could properly have been made consistent with his evidence as to his full-time employment at the laundry at that time (as to which no finding need be made for the purposes of the present proceedings), both Amit and Rajil agree that Rajil was working in the laundry on a full time basis after he finished his TAFE course for a period up to about 2004 (when Rajil set up his own laundry business).
10. None of the family members drew a salary or wages for his or her labour in the laundry business. Ramesh's evidence is that all the family's expenses and income were paid into and out of the business account at his discretion both before and after the business was incorporated ([9]). Although that is accepted as being the position for the period prior to the incorporation of Amit Laundry, the period after incorporation (as reflected in the company's accounts) is somewhat different. For that period, while it is still the case that no wages were paid in cash to family members for their work in the laundry, Rajil accepts that group certificates were issued by Amit Laundry in relation to family members then working in the laundry (T 231). The evidence also shows that in the company's accounts there were amounts credited in the shareholders' loan accounts, which it is suggested represented the wages in respect of which those group certificates were issued. (Presumably, if so, Rajil could take steps to require the repayment of the amounts recorded to his credit in the company's accounts as shareholder loans.) In any event, it is the common position of all relevant parties that no actual wages were received by the family members for their work in the laundry at any relevant time.
11. The relevance of Rajil's (or, for that matter, Vinay's) role in the laundry business and in particular the non-receipt by family members of actual wages or income in return for their labour (see Rajil's March 2017 affidavit at [17]) is the proposition put for Rajil that the payments made by Amit Laundry in relation to the purchase of Property A were in lieu of such wages (which I consider in due course).

Acquisition of residential properties from around 1986 to 1991

1. For a time after the purchase of the laundry business, the family (Ramesh, his wife and the three sons) resided in the upper storey of Property B, which they leased from the owner. Then, in around 1986 or 1987, a property in Adam Street, Guildford was purchased (the Adam Street Property). The Adam Street Property was described both by Ramesh (at [10]) and Rajil (at [11] of his December affidavit) as the "first family home" in Australia. Amit was registered as sole proprietor on the title to the Adam Street Property.
2. Again there is a dispute as to the circumstances of its acquisition. Ramesh says that he bought the house at auction; that he secured a loan for the purchase of the house and used the laundry business as security for that loan; and that it was bought with the intention of it being a family home (at [10]). He says it was "purchased in Amit's name" but that it was not bought for Amit's sole benefit (at [10]). Ramesh says in his affidavit that it was "for convenience" that the property was in Amit's name "so that he [Amit] could converse in English, attend to loan arrangements, signing contracts and so on" on Ramesh's behalf. Rajil again echoes his father's evidence and deposes that it was his father who bought the Adam Street Property and that his father did so using money from the "family business" (see [28] of Rajil's March 2017 affidavit).
3. Amit says, to the contrary, that he was the purchaser of that property; that he borrowed the money for the purchase from St George Building Society; and that it was his decision subsequently to sell that property and purchase the next property to which I am about to refer (see [11] Amit's 15 December 2016 affidavit). I interpose to note that there is no suggestion that Ramesh himself entered into any finance arrangements at any time and that the bank records in relation to the later loan facility used to acquire Property A (see [70] below) support Amit's contention that it was he who borrowed the funds to acquire the Adam Street Property.
4. In 1988, the Adam Street Property was sold and at the same time a property was purchased in Granville (the Granville Property). Again, title to that property was in Amit's name. Amit says he borrowed from Westpac the remaining funds necessary to settle the purchase of the Granville Property (Amit's 15 December 2016 affidavit at [11]) and that in respect of both mortgages (i.e., the St George Bank mortgage over the Adam Street Property and the Westpac mortgage over the Granville Property) all repayments were paid from moneys earned by him operating the laundry business ([11]). The Granville Property again became the family home.
5. Ramesh, as was the case in relation to the Adam Street Property, deposes that it was he (Ramesh) who purchased the Granville Property at auction and says that it was "purchased in Amit's name for the same reasons as with the Adam Street Property" ([11]). He maintains that it was "absolutely and unequivocally a family home" (something not necessarily inconsistent with Amit being both the legal and beneficial owner of that property). However, at [12], Ramesh deposes that: At the time of purchasing [the Granville Property], it never occurred to me that in registering the property in Amit's name he would become the legal or beneficial owner of [the Property]. The assets of the business were the assets of the family collectively. It was a matter of convenience because of Amit's hold of the English language … [my emphasis]
6. Rajil's evidence again largely echoes that of his father on this issue, including Rajil's assertion that it was a matter of convenience that the Granville Property be in Amit's name "because of the language barrier"; although Rajil also states his belief that his father caused the property to be registered in Amit's name "because Amit was the eldest child and he [Ramesh] wanted to give effect to his wish that each of his children be provided with a property, starting with Amit as the eldest" (at [28] of his March 2017 affidavit). I note, however, that Ramesh's evidence (somewhat to the contrary of Rajil's evidence) is that it "later" (my emphasis) occurred to him that he should start buying assets "for each of my sons" (see [14]).
7. Rajil also refers to his parents briefly having purchased and then sold another property in Guildford in the same block as Property B in 1991 (Property C) ([16] of his December 2016 affidavit; [30] of his March 2017 affidavit). Amit denies this and says that Property C was purchased by himself and his partner (a Mr Siddique); and that all decisions concerning it were made by the two of them (see [14] of his 15 December 2016 affidavit). There is nothing that establishes what the position was as to the acquisition and sale of Property C and nothing turns on this (though it may well be the explanation for an error in the description of the property the subject of the later business development loan (see [68] below, since that refers to the address for Property C). Ramesh makes no reference in his affidavit to any acquisition of Property C.

Marriages of Amit and Rajil in 1993

1. Amit and Rajil married their respective wives (Abha and Sharmilla) in India in 1993. After their respective marriages, the daughters-in-law immigrated to Australia and came to live with the family in the Granville Property. Extensions were carried out to the Granville Property so that each of the sons could have his own bedroom. Amit says that those extensions were paid for partly by re-draws on the St George Bank facility (by which it appears he is referring to the facility initially taken out by him to fund the purchase of the Adam Street Property and which he also refers to as "my Westpac loan") and partly from earnings from the laundry business (at [12] of Amit's December affidavit).
2. In passing I note that annexed to Rajil's 12 December 2016 affidavit (admitted for a limited purpose and not for the truth of its contents) is a statutory declaration purportedly signed by Amit but (as Rajil accepts) in Rajil's handwriting. It is said by Rajil to have been written when the Immigration Department required an assurance of support at the time he was trying to bring his wife Sharmilla from India to Australia. The statutory declaration includes the statement that "as per Indian tradition, and as being the elder brother I [i.e., Amit] should give my young brother a house to live in and some assets to help him start his new life" and the statement that he (Amit) had presented Rajil as his wedding present with a $100,000 portion of the (Granville) house (the house itself being said to be worth in total $400,000).
3. Amit denies being involved in assisting his brother to obtain a visa and denies having signed the statutory declaration a copy of which is annexed to Rajil's affidavit (see [18] of Amit's 1 December 2016 affidavit and [13] of his 15 December 2016 affidavit). In the circumstances I can put no weight on the statements contained in the statutory declaration, there being nothing to establish that it was in fact signed by Amit. Moreover, Rajil has not, as far as I am aware, asserted (and does not now assert) any interest in the Granville Property.

Incorporation of Amit Laundry

1. On 26 March 1996, Amit Laundry was incorporated. There is (unsurprisingly, given that most such matters are disputed in the present case) a dispute as to whose decision it was for its incorporation.
2. Amit's evidence (at [9] of his 15 December 2016 affidavit) is that it was his decision to incorporate what he refers to as "my laundry business" (my emphasis). In contrast, both Ramesh and Rajil refer to the laundry business as the "family business". I treat the use by Amit of the possessive pronoun and the use by Ramesh and Rajil of the descriptor "family" as reflecting their different perceptions as to whose business it was.
3. Amit says that he obtained advice from accountants in Granville about incorporation ([9] of his affidavit of 15 December 2016).
4. Ramesh, on the other hand, deposes that in about 1996 he decided that the family business "should be incorporated to protect our assets and for tax purposes"; that he decided that his sons and their wives (Vinay not then being married) would be the directors of the company "and that they should have equal shareholdings in the family"; and that he saw no reason to differentiate between their shareholdings or positions of office - "[t]hey were all equal" ([17]).
5. Ramesh says that at the time the decision to incorporate was made he had a meeting with his family in which he, in effect, announced that "We are going to incorporate, You will all be the directors and you will all have equal shares" ([18]). He says that the response from his sons and their wives was to the effect "Yes, OK" and he says that he instructed Amit to engage an accountant to prepare the paperwork to incorporate the business into Amit Laundry ([18]; [20]). He further deposes to his awareness that, after incorporation, the business "was paying wages to the directors on paper" but that the money never physically changed hands nor did the directors actually receive that money ([21]). He also deposes (but accepted in cross-examination that this was not in fact the case) that he met with the accountant for the purpose of preparing the company tax returns (see [21] cf. T 214).
6. Rajil's affidavit evidence as to the incorporation of Amit Laundry was, first, that it was his parents' decision to change the family business structure into a corporate one ([9] of his December 2016 affidavit) and, then, that it was his father's (presumably meaning his sole) decision to do so ([21] of his March 2017 affidavit). He has deposed to an announcement made by his father around the dinner table on one occasion in about 1996 to the effect that "I want to form a company from the Family Business, I want equal shares for everyone. I want all five of you to be in the company" and says that Ramesh then gave instructions to Amit to "go and form the company, do the paperwork, bring it and everyone will sign it" ([21] of his March 2017 affidavit). He also deposes to an occasion on which Amit "presented the paperwork" to him, which he understood to be indicating his consent to being appointed a director and shareholder of "the Family Business" and which he says he did not read (he says this was because he understood that it was paperwork prepared in accordance with his father's instruction that all were to be equal shareholders, deposing to a statement from Amit to that effect) ([22] of his March 2017 affidavit).
7. On incorporation, the initial directors of the company were Amit, Abha, Rajil, Sharmilla and Vinay. 200 ordinary shares were issued to Amit; Amit held 400 E class shares and he and his wife held 200 F class shares each. The other directors were issued E or F class shares respectively (Rajil and Vinay - 200 E class shares each, Sharmilla - 200 F class shares) (see Annexure A to Amit's 1 December 2016 affidavit).
8. The E and F class shares conferred only limited rights. They did not confer a right to vote at any general meeting of the company (though the holders were entitled to notice of and attend any such meeting) and they did not confer any right on a winding up of the company to participate in any distribution of surplus assets or profits of the company. In all other respects those shares had the same rights and privileges and were to rank equally with the ordinary shares (see article 7 of the articles of association). Thus there was a right to participate in any dividends declared and payable by the company on the class of share held (see article 4 of the articles of association). (There have been no dividends declared on any of the E and F class shares at any relevant time.)
9. Thus it is clear that, from its incorporation, Amit has had the ability to control Amit Laundry; and that the shareholdings of the respective sons were never equal. Pausing here, I have concluded that Amit was at all times the controlling mind of Amit Laundry (albeit that he no doubt consulted with his father from time to time as to the operation of the laundry business or family matters, if for no other reason than paying deference to his father). Not only did Amit hold the relevant voting shares but, of the other directors, both Rajil and Vinay seem to have accepted that decisions as to the laundry business were not made by them and the only involvement of Abha and Sharmilla in family discussions as to the laundry business to which reference was made in the evidence was their assent (in general terms) to what was discussed at family dinners (Amit's description of the relevant family discussion in relation to Property A is quite telling - "our wives were there because they were serving us the food" - T 30.30). Vinay's evidence, for example, was that he was not involved in the family business because "elders" were looking after that (T 165; T 167.31); hence his explanation as to how he came to be a borrower for the loan for Property A was (at T 168) to the effect that if he were told to sign paper or "do whatever" by his elders he would do so (in the expectation that he would not be responsible for repayment of the loan).

Purchase of the Vacant Land next to Property B

1. In May 1996, Amit Laundry purchased a vacant block of land adjoining Property B (the Vacant Land) for the sum of $95,000. Again there is a dispute as to whose decision it was to purchase the Vacant Land (see Amit's 15 December 2016 affidavit at [14]; Ramesh at [22]; Rajil at [17] of his December 2016 affidavit). However, there is no dispute that the Vacant Land was purchased with a view to developing that property and then relocating the laundry business to that property and expanding the laundry business (see [17] of Rajil's December 2016 affidavit; [15] of Amit's 15 December 2016 affidavit; [31] of Rajil's March 2017 affidavit; [22]; [24] of Ramesh's affidavit). Nor is it disputed that problems were subsequently encountered with obtaining development consent for the proposed development of the Vacant Land (which has not even now been obtained from the local council; see for example, Exhibit H) (see [52]ff below) and that the property remains in an undeveloped state.
2. Not insignificantly in my view, unlike the various other property purchases that occurred over the period after the incorporation of the company, the Vacant Land was purchased in the name of Amit Laundry. In that regard, Ramesh has deposed (at [23]) that: The purchase of [the Vacant Land] took place and it was registered in the name of the plaintiff because it was intended to be used by the business. It was not intended to be owned by any one of my sons and no one was going to live in it.

Proposals for development of the Vacant Land

1. Amit's evidence was that within a year of the purchase of the Vacant Land he was involved in engaging people to prepare a development application of which he was the applicant (T 57.26-50, T 58.0-11). He says that the process took about 6 months to a year. That places the application as being made somewhere between mid 1996 and mid 1997. In fact, it must have been lodged by March 1997 because there was in evidence a letter sent in March 1997 from the Council of the City of Holroyd to Amit at the Property B address (Exhibit H), in which Council advised that the development proposal was not acceptable on the grounds of parking and manoeuvring; and Amit was urged to negotiate with the adjoining owners to seek a right of way (in exchange for a reasonable sum of money).
2. Subsequently, another development application was lodged with the Council, this one having been prepared by an architect. Amit says that that proposal involved the building of four or six apartments and a business space downstairs (T 16.37-50; T 138.22-25) but that this was also rejected (apparently due to the need for a stormwater easement) (see T 59). Amit's evidence was vague as to the timing of the making of this second development application (a year to a year and a half ago, or possibly 2015 (T 59.10-26). Amit accepted that he was not dealing with an architect in relation to plans for the development of the Vacant Land at the time that consideration was being given to the sale of the Vacant Land in one line with Property A and Property B (as occurred in around 2012/2013) (T 120.5-10; T 126) (see [92]ff below) but then said that the development application process with the architect had been going before that (T 120.43-47).
3. Pressed as to the timing of the proposals for the development of the Vacant Land, Amit said that the attempts, communications and rejections from the Council with respect to the development application occurred over a period of time (T 119) and were an ongoing process but he could not remember the timing of the process (T 121.4). Relevantly, for present purposes Amit says that he started the process to buy Property A (see below) after learning from the Council that the Vacant Land could not be built upon (T 58.34-35) and Ramesh's evidence supports the link between the problems that had been encountered with the development of the Vacant Land and the acquisition on Property A (see [57] below). Amit Laundry submits this sequence of events supports the conclusion that the motivation to purchase Property A was due to the realisation that it was not possible to conduct Amit Laundry's business from the Vacant Land.
4. Amit's evidence is that he has formed the view that, at least in terms of any proposal for development, the Vacant Land is "basically … just useless" (T 59) but he does not accept that it would be impossible to sell the land.

Purchase of Property A

1. In June 1999, Property A (the subject of the present dispute) was purchased. Again, there is dispute as to how the opportunity to purchase the property arose, who it was within the family that carried out the negotiations for the purchase, and whose decision it was to purchase the property. (More relevant, for present purposes, is the evidence as to the intended purpose of the purchase, to which I will come shortly.)
2. Ramesh's evidence is that Property A appealed to him because it had a large shop area on the lower level and a residential area upstairs. He says he decided that because they were not having any progress with developing the Vacant Land "this would be a good temporary solution". He says that he said words to the family to that effect, including (see [26]; see also T 220.10-27): … If we buy [Property A], we can move the laundry into the lower level temporarily until we can develop [the Vacant Land]. If we are successful in purchasing [Property A] we will register Rajil and Vinay as the owners. It is just a temporary solution but regardless of what happens with [the Vacant Land], we will keep [Property A] as an investment for Rajil and Vinay.
3. Ramesh says in his affidavit (at [28]) that he instructed Amit to deal with the seller and the bank to effect the purchase of [Property A] and that those instructions included that Amit was to assist Rajil and Vinay to secure a loan from the bank in their names for the purchase. He says that his understanding was that, consistent with his instruction, Amit would be recorded as a guarantor on the loan because neither Rajil nor Vinay had any assets or other security in their names; and that he did not intend or understand that Amit would be recorded as a borrower on the loan (see [28]). (His evidence in cross-examination is markedly different, in that Ramesh was there adamant that he gave the relevant instructions to Rajil, not Amit - see for example T 214.)
4. Amit's evidence (consistent to this extent with that of his father) is that Property A was purchased with a view to relocating and expanding Amit Laundry's business to those premises (see [4] of his 1 December 2016 affidavit; [16] of his 15 December 2016 affidavit). That is consistent with the fact that, by then, problems had been encountered with the proposed development of the Vacant Land which had been acquired for that very purpose. However, Amit disputes that occupation of the property for the laundry business was only to be "temporary". He says that it was to be for as long as Amit Laundry wished (see [60] below) and he says it was his decision to buy the property.
5. Amit says that he proposed the purchase of Property A at a family gathering and that what he said was that the business was doing well and needed bigger premises; that there was an opportunity with respect to the property; and that he had spoken to the owner and that the owner would agree to sell the property (T 30.28 - T 31.32). Amit says that in that meeting he said that the company should move into Property A and remain there "for as long as it wanted or as long as it could be run" (T 31.24; T 76.41-50; T 128.27-29). (Ramesh agreed in cross examination that he could not remember if Amit told the family that an advantage of buying Property A would be that the laundry could operate from that property for as long as it wanted - T 221.27-33).
6. Amit recalls telling his family the purchase price on the above occasion and that the bank would be willing to lend the money with the company paying back the loan and recalls that both his brothers agreed with his proposal (T 31.23-31) (though see Vinay's evidence at [65] below that he was not present at the family discussions in relation to the Property). (Amit Laundry says that Amit was not cross-examined in relation to his evidence about this conversation. That said, and to anticipate some of the argument discussed later in these reasons, whether or not his brothers agreed with Amit's suggestion as to the mechanics of repayment of the loan, this does not go so far as establishing that there was a clear agreement at the time of purchase of the property that the repayments by the company were to be taken into account when determining the respective contributions to the purchase price.)
7. Amit also gave evidence describing another occasion, after he had met with his bank manager, when he says he sat and spoke to his brothers and explained how the loan was going to be structured (T 31.48-50 - T 32.16). He stated that at that time he told his brothers the company would make the repayments of the loan and that his brothers agreed to what he stated in that discussion. (I make the same comment as made above in that regard.)
8. Amit says that it was his decision to put the title into the name of his younger brothers and explains the reason for this as being "in part" because his father had on a number of occasions expressed the wish to have property put into their names ([17]). He said in the witness box that Ramesh "wanted to have something in their name" (T 65) and accepted that he understood that his father wanted to make sure that all his sons were set up in life. He agreed that his father wanted each of his sons to end up with property in their names which they owned. He said that their names were there (on the title of Property A) just to please his father or fulfil his father's wish (T 73) and that the "main thing" was to have something in their name, though also referring in this context to his father's wish to save rent (T 73.38; T 75.3).
9. Rajil's evidence in some respects is broadly consistent with Amit's evidence, other than as to who made the decision to buy the property (see [32]-[35] of the March 2017 affidavit) and that Rajil says it was he who spoke with the neighbour about the acquisition of the properties. Rajil says that his father suggested that the property be bought; that the upstairs would be kept for rent; that the property be bought in his and Vinay's name; and that the business could be run "downstairs temporarily until we build the shop [on the Vacant Land]" ([32] of the March 2017 affidavit). Rajil says that Amit agreed with the proposal and said "this is the best way to rise. We can have a bigger laundry and earn more money". He also says that Amit said "I have [the Granville Property] in my name anyway. They can have [Property A] in their name" ([34] of his March 2017 affidavit). (Amit's position, as I understand it from the submissions for Amit Laundry, is that insofar as there was an allocation of properties amongst the sons with any intention that the properties be held beneficially by the sons, Amit was to have the Granville Property and Rajil was to have the benefit of the Redhead property that was later acquired - see further from [78] below. For present purposes, it should simply be noted that at the time Property A was acquired neither Rajil nor Vinay held any property in his own name and hence if by then Ramesh was looking to put properties into his sons' names it would not be inconsistent for him to have wished Property A to be in the two younger brothers' names - the acquisition of the Redhead property then not being on the horizon, so to speak.)
10. Vinay does not recall being present for the discussions surrounding the purchase of Property A ([4] of his March 2017 affidavit). He says that when the property was purchased he understood he would be named on the loan as one of the borrowers and that he would be liable to the bank with Rajil ([5]). His evidence (admitted as to his understanding but obviously limited in its weight given that he does not recall being present at the discussions) is that "it would have been" his father who made the decision to register his name on the title deeds of the property (saying that these types of decisions were always made by his father) ([4]). In cross-examination there was the following exchange (at T 172): Q. Did you understand at that stage that the purpose of you participating in this borrowing was to enable the Amit Laundry business to be relocated to [Property A]? A. Yes sir, yes, yeah. Q. How did you know that? A. I think there might have been a conversation sitting down sir that look, you know, I think we need to buy our own building so that we can move the laundromat in there and also to - I guess, to buy property, to have a property for the family. Q. Do you recall it being mentioned that one of the advantages of buying the premises at [Property A] was that the premises that the laundry was then operating from were charging rent, were costing rent? A. Sorry, I didn't understand the question? Q. I'm sorry, I've mangled it. Did you also hear in the context of discussion about the laundry moving to the adjoining premises? A. Yes. Q. That one reason for moving was that they could avoid having to pay rent for their existing premises [Property B] by buying the premises at [the Vacant Land] A. Yes sir, yes, I can, I can say yes.
11. This was hardly a firm recollection but, as far as it goes, it supports aspects of both parties' cases - namely, that the property was to be acquired "for the family" (consistent with it being put into two of the sons' names, not that of the company) and that it was to enable the laundry business to relocate there and stop paying rent.
12. Abha gave evidence (in an affidavit affirmed 9 March 2017) as to her recollection of a family discussion at which the move to Property A was discussed. Her recollection was not specific. She said that what Amit had said to her about the proposed move (see [13]) may or may not have been repeated on that occasion ([14]). No probative weight can be accorded to that recollection, which goes simply to the possibility that Amit made a statement of the kind there set out. Abha also says that nothing to the contrary of what she recalled Amit having been said was then said. Slightly more, but still little, probative weight can be given to that recollection given the overall vagueness of Abha's recollection of discussions at the family meeting(s). Furthermore, what Abha recalls Amit having said (namely that "by moving into the bigger shop next door we will save on rent because we will own the new shop" and a reference to renting upstairs and paying off the loan quickly) is not specific as to the identity of the purchaser. Sharmilla, who was also a director of Amit Laundry at the time, gave no evidence.
13. The purchase price on the contract for sale for Property A was $185,000. The initial deposit was paid by Amit Laundry. The balance ($168,204.57) was provided by way of a finance facility from Westpac (described as a Business Development Loan - see Exhibit 1, which the parties accept incorrectly refers to Property C). The security for the loan was an existing mortgage by Amit over the Granville Property and Amit Laundry guaranteed the loan.
14. The borrowers who signed the Westpac loan facility agreement dated 17 February 1999 were Amit, Rajil and Vinay, each of whom by so doing expressly declared that the credit provided was to be applied wholly or predominantly for business or investment purposes (or both) and expressly confirmed that he did not hold "any assets as the trustee of a trust unless the Agreement states that it is a trustee". The bank's customer account opening form (Exhibit B), signed by each of the three sons, similarly did not disclose that the borrowing was as trustee for any trust.
15. In passing, I note that the bank's internal credit approval summary form identified the "Customer group" as "Amit Laundry Connection" and the borrower as each of the three sons; and it included, against the item "Customer Years", the figure "14". The last entry is consistent with Amit having been a customer of St George/Westpac since the purchase of the Adam Street Property (see [33] above). Neither of the two younger borrowers had previously held a loan facility with St George/Westpac. That said, I place no weight on the bank's description of the events as noted on its internal records, since at best this would represent what a bank officer understood (or assumed) from what he or she had been told at the relevant time (presumably by Amit, since Amit's evidence that he was the principal point of contact with the bank - T 67.48-50 - does not appear to have been disputed (see Rajil's evidence at T 249.7-12, 22-33).

Events after acquisition of Property A

1. After the acquisition of Property A, the laundry business was relocated from the ground floor of Property B to the ground floor of Property A. No rent (as such) was paid by Amit Laundry in relation to its occupation of Property A until much later (in 2008). Rajil explains this by saying that there was nothing to be gained from charging rent "to the Family Company" at that time (at [47] of Rajil's March 2017 affidavit). However, it should be noted here that there is an entry in the company's accounts for the 2000/2001 financial year as "rent" (not shown in the accounts for the following 2001/2002 financial year). As there is no suggestion that Amit Laundry was paying rent for any other premises at the time, it may be inferred that the amounts paid by Amit Laundry and recorded as "rent" were the amounts paid by way of repayment of the Westpac loan facility - in which case, Amit Laundry did in effect pay an amount referable to its occupation of the premises earlier than 2008.
2. The upper floor of Property A was initially tenanted (rent-free) by the previous owner of the property and then by a third party who did pay rent (see Rajil at [45]). The rent paid by that tenant (according to Rajil) was either kept as cash or deposited into the "Family Company's bank account" in accordance with his father's decision ([45]). Rajil says that he never received the benefit of that rent, although some of the rent income was recorded on his personal tax return each year ([45]-[46]) - again this being consistent with the way in which there was a notional treatment of income/expenses in the company's accounts.
3. The loan in respect of Property A was repaid by 8 May 2001 (see annexure D to Rajil's March 2017 affidavit). Then, on 14 June 2002, the Westpac loan facility was re-drawn in the amount of $130,000. That further amount was repaid on 22 August 2002.
4. The significance of the above is that both Rajil and Vinay gave evidence that Vinay had made some repayments in respect of the loan for Property A (see Rajil at [41]-[44], reference there being made to conversations in which Rajil says he and his father asked Vinay to make contributions to the loan repayments and at [48], where Rajil deposes that the final instalment to discharge the loan was made by Vinay "by about 2002"; see also Vinay at [6]-[8]).
5. However, the payments recorded as having been made in Newcastle (in about August 2002) that were attributed to Vinay (those Newcastle payments being the only payments identified by either Rajil or Vinay as having been made referable to the Westpac loan) were, according to the bank statements, made at a time after the initial loan had been repaid. Therefore, while the statement by Rajil that the final instalment to discharge the loan was made by Vinay (Rajil at [48]) may well be correct that is the case only insofar as it relates to the discharge of the amount that had been re-drawn in June 2002, not the loan for Property A.

Purchase of Pharmacy business for Vinay

1. The amount of $130,000 that was re-drawn under the loan facility in June 2002 was re-drawn at about that time that Vinay (who had married his first wife in 2000) acquired a pharmacy business in Newcastle. It was submitted for Amit Laundry that the re-drawn amount related to the purchase of Vinay's pharmacy business. Vinay did not accept that the funds related to his pharmacy business acquisition. His evidence was that the acquisition of the pharmacy business settled on 15 June 2012 (and that payment of the purchase price was required at the time of settlement), which would not be inconsistent with the re-drawn funds being applied to the acquisition of the pharmacy business. However, Vinay's (admittedly vague) recollection is that he contributed $50,000 (that he had earned from his work at a Quakers Hill Pharmacy) towards the $412,000 purchase price for the pharmacy business and that Amit organised a loan for him of $312,000 (though he could not be sure exactly and this leaves some $50,000 unaccounted for). Vinay did not recall any other source of funds and said that he would not have had money (from the pharmacy business) by August 2012 to repay a loan of $130,000 (see T 174).
2. Whatever may be the position as to how the re-drawn amount was applied, it is clear that the re-payments Vinay made in relation to the Westpac loan facility in August 2002 cannot have been referrable to the borrowing for Property A, since that had by then been repaid.

Redhead property

1. In October 2002, Rajil purchased a property at Redhead, NSW for $321,500 (as to this and the following, see Exhibit C). The deposit and loan repayments were paid by Amit Laundry. The loan was in Amit and Rajil's joint names. (In January 2006, at which time the money outstanding on the loan was $252,041, the Redhead property was sold for the sum of $485,000.)
2. Insofar as it was suggested by Amit Laundry that the Redhead property was in effect to be "Rajil's" property, Rajil says the property was instead regarded as "Vinay's" property. Rajil gave evidence (unable to be tested by reference to any contemporaneous documents) that the net proceeds of sale from the Redhead property went to Vinay. The most relevant conclusion to be drawn from the account given by Rajil in this regard is that he seems to have paid little attention to the legal consequence of registration of legal title in respect of properties acquired over the whole of the relevant period - and in a loose sense may be said to have treated various of the properties acquired, with funds obtained or repaid by Amit Laundry, simply as "family" property.

Rajil moves into Property A

1. At some stage in about late 2003, at which time all the family (other than Vinay, who was by then living in Newcastle) were still living at the Granville Property, there was an altercation involving Amit and various family members. It is unnecessary to go into the details of what the various family members say occurred. Suffice it to note that Rajil says that Amit told him (and his wife and children, as well as his parents) to move out of the Granville Property; and that not long thereafter they did so (see [27]-[31]).
2. After renovations to the upper storey of Property A (over the following couple of weeks), Rajil and his family moved into the two bedroom residential flat above the laundry at Property A (the tenants in the meantime presumably having been required to vacate those premises). Ramesh and his wife went to live with Vinay in Newcastle ([55]-[56]).

Rajil's dry cleaning business

1. In late 2004, Rajil and Sharmilla started their own dry cleaning business, renting a property at a different location in Guildford for that purpose (see [59] of Rajil's March 2017 affidavit). Ramesh says that Vinay assisted Rajil financially to acquire his own dry cleaning business because by then he (Ramesh) no longer had access to or involvement in Amit Laundry's bank account (see [37]). (Rajil ceased to carry on that business from about 2006.)

Removal of Rajil/Sharmilla and Vinay as directors of Amit Laundry

1. According to the ASIC register (see Annexure A to Amit's 1 December 2016 affidavit) each of Rajil, Sharmilla and Vinay ceased to be directors of Amit Laundry on 1 April 2006. Rajil says that his consent was not sought for this and nor was that of Sharmilla ([60]). Vinay did not recall any such request. Amit's evidence, to the contrary, was that the directors were removed at their request. Whatever be the case in that regard (and it seems to be accepted within the family that Amit for all practical purposes has - as he effectively has had since its incorporation - control of the company and hence the laundry business), there was no formal resolution in relation to the resignation of the directors - as required under the company's articles of association.

Transfer of Vinay's interest in Property A

1. On 21 January 2007, Vinay's 50% interest in Property A was transferred to Rajil for a nominal consideration of $1. Ramesh says that he told Vinay to transfer his interest in the property to Rajil because Rajil did not have anything to himself (Ramesh at [40]). Vinay says that he and Ramesh agreed for Vinay to give his interest in the property to Rajil as Vinay was at that stage undergoing a divorce from his first wife (Vinay at [9]). Rajil says that his father told him that he had spoken to Vinay and had told Vinay that he (Vinay) was doing well financially and that he should give Property A to Rajil ([63]). (Again, this evidence suggests that the family members, or at least Ramesh, Rajil and Vinay, paid little regard to the legal concept of ownership. It also is reflective of the family tradition/culture of the sons - or at least Rajil and Vinay, acceding to whatever their father's wishes were.) I have no doubt that Ramesh's wishes were that his sons should own property in a real (not simply notional sense), starting first with the eldest, Amit: Q. Can you explain how Amit's name ended up on the title? A. INTERPRETER: Yes, because he is my eldest son, that's why.
2. Amit says he was not aware at the time of the transfer of Vinay's interest to Rajil (although in part of an earlier affidavit which was not read at either the interlocutory hearing or the present hearing - [12], which he now says was a typographical error - he had stated that Vinay was removed from the title at Vinay's request). His evidence in the witness box as to his reaction when he learnt of the transfer (see T 93) was quite heated: Q. When Vinay transferred his share to Raj, you didn't say anything at the time when you found out about that, that Vinay shouldn't have done that without consulting you as the person in charge of the company, did you? A. As soon as I found out I called Vinay and I also called my father, how did this happen and why did this happen, and you shouldn't have done it without my knowledge, and I'm upset. So they said oh we didn't, you know, know, you know, what to do so we just thought we won't tell you. And later on I found out because my brother was going through the divorce settlement. So I don't know, for to obtain some advantage they've done this. That's, that's what I found out.
3. By then, of course, there had been the falling out with Rajil which might well explain Amit's concern at finding that Rajil held 100% of the property and that the laundry business was exposed to the risk of Rajil deciding whether to allow it to remain being conducted from the premises, although that was not how it was put in the evidence. Amit Laundry's position was, in effect, that it was appropriate for the property to be transferred for nil consideration because Vinay held the property on trust for it and therefore did not have any beneficial interest in the property. Suffice it at this stage to note that I accept that Amit was genuine in his reaction to the news that Vinay's interest in the property had been transferred to Rajil.

Commencement of the payment of rent by Amit Laundry in respect of the laundry premises

1. At some time in 2008, Amit Laundry began making payments (of $2,465 per month) to Rajil. These payments were recorded in the company's financial records as "rent". The payments were made by direct debit from April 2008 through to 17 February 2017 (and thereafter have been made on a "without admissions" basis to Rajil's lawyers).
2. Ramesh says that a "short while" after Rajil commenced running that business he had a conversation with Rajil in which, in effect, Rajil complained that he was having to pay rent for his own business and would not have to do so if he had the downstairs part of Property A. Ramesh says he then spoke to Amit and told Amit that he had to pay Rajil rent for using the downstairs premises, and that Amit agreed and said "whatever Rajil is asking for, I will pay" (see [37]-[38]).
3. Rajil deposes to a conversation with his father along the same lines as that to which Ramesh has deposed ([67]) and to a subsequent conversation with Amit in which Rajil says he requested rent for the downstairs space and Amit agreed (see [68]). Rajil puts those conversations as occurring in or about 2007 or 2008 (i.e., not a "short while" after Rajil commenced running his own business). Rajil says that he calculated the rent by reference to the amount he was paying at the other leased premises and made allowance for the fact that Property A was a significantly larger space. He says it was agreed that Amit pay the water rates; and that he (Rajil) pay the Council rates, insurance and electricity for the upstairs area ([69]). Consistently with that, Rajil's evidence is that from about 2008 he has paid all of the Council rates and other outgoings, including insurance, for the whole building at Property A (which would be consistent with him being the owner of the premises) and that Amit only paid for the water "because his laundry business used so much water" ([32]).
4. Amit's evidence is that the "rent" payments were made to assist Rajil, who was in need of financial assistance at the time (see [32] of Amit's 15 December 2016 affidavit). Rajil, however, denies that he was in need for financial assistance at the time.

Proposed sale of Property A in 2012/2013

1. Rajil's evidence is that he spoke to Amit in late 2012 about selling Property A ([74]) and that Amit did not raise any objection to the sale or as to Rajil's entitlement to sell the property ([75]).
2. Property A was listed for sale by auction in one line with Property B (still owned by a third party) and the Vacant Land (owned by Amit Laundry) in December 2013. The advertisement for the properties contained statements that there was no lease for Property A and that the tenant (for Property A) was happy to sign a one year lease (Exhibit 2). Amit did not provide an explanation for this (T 116). There was the following exchange: Q. Let me get this straight. You saw this ad at the time. A. Right. Q It's correct, isn't it, you took no step to correct anything in this advertisement? A. No, because I did not appoint him [the real estate agent, Mr Tannous], my brother appointed him, and I don't know what they had planned, but they did not approach me, they just approach me that, "We're going to get the market value and see if it works out, and if you would, we can include [the Vacant Land] as well". Q. Are you telling her Honour that despite seeing this as being what was being proposed to the public, that is, any potential purchaser, you never took any step to correct anything in the details here? A. No, no, I did not, because, you know, it just didn't make any sense to me at that time.
3. The properties did not sell at auction. Rajil gives evidence that a buyer was found at this time for Property A; that he wanted to accept that offer and told Amit this; that Amit said words to the effect "OK good"; and that Abha, Amit's wife, then rang him and said she and Amit had decided to buy Property A from him at the price offered by the buyer (see [78]-[80] of Rajil's March 2017 affidavit), but that this did not proceed (by which time the buyer was gone and the property was taken off the market). Abha denies the conversation to which Rajil has deposed ([1] of her 18 June 2017 affidavit) and says that she never knew that Property A had been listed prior to learning about the property being sold shortly prior to the commencement of these proceedings (at [2]).
4. Amit's evidence is that he had no intention of selling or permitting the sale of Property A at that time, unless the sale was sufficient to justify moving the laundry business and buying other suitable premises; and that the combined listing was to test the market to see whether it might be of interest to a developer willing to pay above market prices to secure a large block suitable for redevelopment (at [34] of Amit's 15 December 2016 affidavit). There was the following (rather extraordinary) exchange in cross-examination as to the unsuccessful auction: Q. You did nothing to stop that auction from taking place, did you? A. No, because we wanted to find out the market value, how the property - how much the property is worth. Q. You knew that if the property was sold, then the laundry business would have to relocate at some time, subject to whatever lease could be obtained from the new owner? A. No, if we made a good amount by selling the property and if I had considered that yes if it was worth moving, we would move it. Q. But once the property had gone to auction and had been bid on, by those at the auction, had that happened, so your developer had materialised and bid on it at auction and bid above reserve and the property was knocked down to the developer, you're stuck with the sale, aren't you? A. No, then we would have been in the same predicament as we are today. Because how - how can they sell it?
5. In re-examination Amit said there was no reserve price set for the auction. Pausing here, the suggestion that the property could have been the subject of a successful bid, at auction, but that Amit Laundry (through Amit as its controlling mind) would have been in a position to decide whether the sale should then go ahead, if it were to be accepted, reveals complete ignorance on Amit's part of the auction process. I cannot accept Amit's explanation on this issue as plausible.

Events in 2016

1. Rajil gives evidence that in about 2016 he discussed with Ramesh and Amit that he proposed to sell Property A (after a couple of "break and enters" downstairs); that his father agreed and that Amit replied with words "Sell it. Don't worry about anything else" (at [86] of Rajil's March 2017 affidavit). He says that about two weeks later he approached Mr Grgic (a real estate agent) to list the property ([86]). In October 2016 (acting on Rajil's instructions - see [83]), Mr Grgic listed Property A for sale.
2. Amit denies being aware that the property had been listed for sale and says that the first he knew that an agent had been retained by Rajil was when Mr Grgic spoke to him on the afternoon of 2 November 2016 (Amit at [12], 18 June 2017 affidavit). This was at a conversation in the laundry premises. Mr Grgic confirmed that there was such a meeting. Rajil says that when Mr Grgic told him he had a buyer for the property, he contacted Amit and told Amit that Mr Grgic would be coming with a one year lease and "just sign it", and that Amit said "no problem" ([87]). Amit disputes this.
3. Amit says that Mr Grgic told him that he had a purchaser and (which Mr Grgic denies) that if he (Amit) did not agree to enter into a 12 month lease then Rajil would sell with vacant possession and require Amit Laundry to leave the premises within one month ([12]). (Matters that tend towards acceptance of Amit's account of that last part of the conversation, as opposed to Mr Grgic's account, are the evidence that Mr Grgic gave in the witness box as to "buyer's remorse" (see T 149 - that being the reason he gave for one of the options he said he had presented Amit with and a reason that would be consistent with him adopting a hard stance in discussions with Amit) and Rajil's evidence that Mr Grgic had told him that they could "kick [Amit] out" and that his lawyers confirmed this. Amit says that he told Mr Grgic to leave and that he would be telephoning his lawyers the following day. (Rajil denies that this was reported back to him.)
4. Mr Grgic's evidence as to the conversation with Amit on 2 November 2016 is that Amit said he would not take a 12 month lease and that he wanted a 5 year lease plus a 5 year option at a much lower rate ([6], 23 March 2017 affidavit). Mr Grgic said the following: Q. The effect of your statement to him, I suggest, was that if he didn't take the one year lease, he would be required to vacate the property within a month. What do you say to that? A. No. What I told him, if he does not sign the lease, I will go back to the purchaser, because I had an offer on a table subject to 12 month lease which were the same terms that the property was offering 2014.
5. Mr Grgic confirms that Amit told him "I will talk to my lawyer tomorrow" ([10]) and says that Amit (complete with expletives) said he would obstruct the sale ([12]; [14]; [15]). Amit denies Mr Grgic's version of the conversation (and denies that he uses expletives).
6. As adverted to above, Rajil deposes to a conversation with Mr Grgic after Mr Grgic had been to see Amit ([90]). He says that Mr Grgic told him, in effect, that "[w]e can kick him out, you can then sign the contract to sell with vacant possession" ([90]).
7. What next happened was that contracts for sale of Property A with vacant possession were signed by Rajil later in the afternoon of 2 November 2016 (at a time when at least Mr Grgic knew that Amit was foreshadowing that he would be talking to lawyers) for a purchase price of $1.32 million and with a completion date of 15 December 2016. A notice of termination and to quit was then served on Amit Laundry on 4 November 2016 requiring vacant possession of the laundry premises within a month (on the basis that there was no fixed term tenancy but rather a tenancy at will terminable on one month's notice).
8. Amit then caused by a caveat to be lodged on the title of Property A in the name of Amit Laundry, claiming an equitable interest by virtue of the company having paid for the land and having had since 2008 an unregistered lease over part of the premises. A lapsing notice was issued, following which proceedings were commenced by way of summons seeking interlocutory relief on 2 December 2016. Interlocutory injunctions were granted, on the usual undertakings as to damages (see Amit Laundry Pty Ltd v Jain [2016] NSWSC 1871 at [2]; [6]). The hearing of the matter was expedited on the basis that the contract for sale was then on foot. However, the contract for sale was subsequently rescinded. It is not clear whether the purchaser under that contract (Spotty Rabbit Pty Ltd) maintains any claim for damage in relation to the rescission and (other than perhaps if there is a claim on the undertaking as to damages that was proffered at the time the interlocutory relief was obtained) there is no issue for determination in these proceedings as to the status of that contract.

Rajil's contentions

1. In summary, as adverted to in the introduction to these reasons, Rajil contends that the actual intention of the parties at the time of the purchase was that he and Vinay were to hold both the legal and beneficial title to Property A. He opposes Amit Laundry's primary claim (one based on a presumed resulting trust) on three main bases.
2. First, he says that Amit Laundry made no contributions to the purchase of Property A on its own account. Rather, he says the deposit and loan repayments made by Amit Laundry were in lieu of wages to Rajil and Vinay (for their work in the laundry business), and thus in substance were contributions by them to the purchase price for Property A.
3. Second, he says that over 90% of the purchase price was not paid by Amit Laundry because the Westpac loan was not taken out for or on behalf of Amit Laundry. He contends that the brothers' liability (as borrowers) under the Westpac loan is a direct contribution to the purchase price and subsequent loan repayments by Amit Laundry are not relevant to determining the question of ownership.
4. Third, as to the deposit, and the Westpac loan contribution (if the loan is found to have been taken out on behalf of Amit Laundry) he argues that any presumption of resulting trust is rebutted by the actual intention of the parties and the presumption of advancement.
5. Rajil points to the relationship between Ramesh and his sons (as well as that between Amit and his younger brothers) as attracting the presumption of advancement. He argues that Amit Laundry was the "vehicle" by which Ramesh and Amit advanced the interests of the younger brothers, pointing to the observation by Gibbs CJ in Calverley v Green (1984) 155 CLR 242 (at 250) that the presumption should be held to be raised "where the relationship is such that it is more probable than not that a beneficial interest was intended to be conferred, whether or not the purchaser owed the other a legal or moral duty of support".

Introductory observations

1. In the present case, there are potentially three "presumptions" in play: first, the presumption that beneficial ownership is commensurate with the legal title (about which there was no dispute); second, a presumption of resulting trust; and, third, a presumption of advancement.
2. It is in the identification of the relevant factual matrix that presumptions have a role to play, in that a particular "presumption" may assist in the face of deficiencies or gaps in the evidence. So understood, it has been said that presumptions are "the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts" (Mackowik v Kansas City St J & C B R Co 94 SW 256, 262 (1906), quoted approvingly in Neilson v Letch (No 2) [2006] NSWCA 254 at [26]; Mason P, with whom McColl and Basten JJA agreed).
3. As to onus, the burden of rebutting a presumption of resulting trust (once the facts giving rise to the presumption have been established) lies on the party denying the existence of the trust (here, Rajil); conversely, the burden of rebutting a presumption of advancement (once the relevant relationship attracting the presumption has been established) lies with the person asserting the existence of a trust (here, Amit Laundry) (see Calverley at 252 (Gibbs CJ).
4. The principal basis on which Amit Laundry puts its case is that of a presumed resulting trust arising from the contributions made by it toward the purchase of Property A (both the payment of the initial deposit - see Exhibit J - and the mortgage repayments). Amit Laundry contends that it is thus entitled to the whole of the beneficial interest in Property A. Its claims based on an express or implied trust are put as alternatives to the resulting trust claim.
5. Logically, however, it is preferable to approach the determination of its claims by having regard first to the express/implied trust claims. This is because a claim based on an express trust presupposes an actual (express or inferred) intention to create a trust, whereas a resulting trust typically arises where there is a dearth of evidence (or deficiencies in respect thereof) on the question of intention.
6. In the present case, the bare facts are established by the documents: there were unequal contributions to the acquisition of real property. Leaving aside the construction to be placed on the various payments made by Amit Laundry (to which I will turn shortly) the starting point is that Amit Laundry paid the deposit and the three sons assumed liability for the borrowings that funded the balance of the purchase, yet the persons registered on the title as registered proprietors were Rajil and Vinay in equal shares.
7. It has been clearly established in my opinion that at the time of acquisition of Property A there was a shared intention on the part of the respective family members (Amit, Rajil and, insofar as he must be taken as being willing to accede to his father's wishes, whatever they were, Vinay) that title to Property A be registered in the names of Rajil and Vinay and that Amit Laundry be able to occupy and operate its business from the ground floor of Property A for an undefined (be it temporary, on Ramesh/Rajil's evidence, or indefinite, on Amit's evidence) period of time.
8. If an argument is to be advanced based on that discernible intention (for example, that this shared intention, coupled with other facts, supports an inference of an agreement along the lines of the pleaded Acquisition Agreement), then given the logic underlying a resulting trust analysis (i.e., that there is a deficiency in the evidence of intention), it should be addressed first. In other words, the fundamental issue in the present case (namely, who has rights in equity in respect of Property A) should be examined by determining first whether there was an express or implied trust and, second, depending on the outcome of the first, whether there was a resulting trust. I appreciate that this is not the way that the plaintiff approached its case but logically it seems to me to be the correct order in which to determine the issues in dispute (and my conclusion would be the same whatever the order in which the issues are addressed).

Witnesses

1. Before turning to the issues for determination, I make the following observations as to the principal witnesses.
2. First, as to Ramesh. Ramesh is elderly and gave his evidence through a Hindi interpreter. Allowances must be made for the inevitable difficulties in translation. I do not suggest that he was in any way seeking not to give truthful evidence. However, Ramesh's memory and general ability to recall the detail of events was unreliable (as illustrated by some of the passages of evidence already extracted) as was his understanding of legal concepts (such as what was meant by incorporation or as to the contractual effect or consequences as a matter of property law of the signing of contracts or of registration of title to land). See, by way of example, his evidence (at T 215.11-12) as to who it was that purchased the Vacant Land, which was clearly inconsistent with the sale contract; and his assertion, again clearly incorrect as a matter of law by reference to the contract for purchase of the business that it was he who bought the laundry business in the first place. See also, as to the unreliability of his general recollection, his insistence in the witness box that it was Rajil to whom he gave instructions in relation to the purchase of Property A, whereas in his affidavit he identified Amit as that person.
3. There were numerous instances where propositions contained in his affidavit were put to him in the witness box and he did not know or could not recall that to which he had earlier deposed; and as already adverted to there were numerous instances where he did not understand legal concepts the subject of statements in his affidavit. On the assumption that words such as "incorporation" had been accurately translated to him in Hindi in the witness box, and I have no reason to doubt this, then whatever the difficulties in translation at the time his affidavit was prepared it is difficult to place much reliance on statements the substance of which he now does not appear to understand.
4. In saying this, I accept that part of the difficulty may well lie in differences in concepts of property law (or other legal matters) as between this jurisdiction and India (and that Ramesh may well be more familiar with the latter). However, if so, that same difficulty must have arisen when his affidavit was prepared in the first place - and there was no explanation in his affidavit of any relevant difference in the concepts to which Ramesh was there referring. What that means is that I can place little weight on assertions made by Ramesh invoking such concepts in his affidavit.
5. So, for example, see the cross-examination as to Ramesh's evidence that he made the decision to incorporate the company for tax purposes and to protect assets. There were the following exchanges: Q. I want to take you to the evidence about the business being incorporated in 1996. In your affidavit at paragraph 17 on page 120 you say that you decided in 1996, about then, "that the family business of Amit Laundry should be incorporated to protect our assets and for tax purposes". What were the tax purposes that you had in mind when you decided to incorporate the family business? A. INTERPRETER: I do not remember. Q. Can you now think of any tax purposes that might have informed what you say was your decision to incorporate the family business? A. INTERPRETER: What do you mean by incorporation? Q. The incorporation of the company Amit Laundry Pty Ltd? A. INTERPRETER: Could you explain the meaning of incorporation?
6. See also: Q. You said that one of the reasons you decided to form a company to run the business was "to protect our assets". How was forming a company to run the business, in your mind, going to protect your assets? A. INTERPRETER: For this only, what else would it be? Q. How would it protect your assets, according to your understanding? A. INTERPRETER: It will be distributed among the children. Q. Is that the only mechanism under which - sorry, is that the only way that the company being formed to run the business would protect your assets, as you understand it, or were there other ways? A. INTERPRETER: That would be known to the tax person, the person who pays the income tax.
7. As an example of matters to which Ramesh had deposed in his affidavit but of which he had no knowledge in the witness box: Q. In paragraph 21 you say that after incorporation the business was paying wages to the directors on paper. A. INTERPRETER: I do not know that and, as already noted, Ramesh's evidence in his affidavit as to meeting the accountant was squarely contradicted with that in the witness box: Q. You say that you met with the accountant for the purpose of preparing tax returns for the directors. A. INTERPRETER: I did not meet. Q. Why did you say in your affidavit that you did? A. INTERPRETER: I do not remember.
8. I can readily accept that Ramesh's perception of his role in the family was as head of the family and the primary decision maker. This accords with both Rajil's and Vinay's perception of his role and finds support in the evidence of both Amit and Abha, at least in relation to the doling out of money by Ramesh within the family and, in Amit's case, in his acceptance that decisions such as the decision to incorporate the company were discussed with his father before they were implemented. However, I cannot accept that the accounts Ramesh has given as to historical family events are a reliable recollection of what actually happened in terms of who made the relevant decisions and what was decided.
9. As to Rajil and Amit, their evidence must be viewed with an appropriate degree of caution, given their obvious self-interest in the outcome of the proceedings. In that regard, I do not accept the submission for Amit Laundry that the direct evidence of the family witnesses provides a more reliable account of events than the contemporaneous documents.
10. As to Rajil, aspects of his evidence as to matters of family history (particularly as to who made the relevant decisions, such as to the purchase of the laundry business, and who was the purchaser) were seemingly based on little more than his perception or understanding of events based on what he recalls having heard at family discussions or on what others have said (and for some of the decisions at a time when he was still at school). So, for example, his evidence (at [13] of his March 2017 affidavit) as to the purchase of the laundry business back in 1985 (a family conversation occurring when he could only have been around 16). Similarly, without knowledge as to any discussions that might earlier have taken place between Amit and Ramesh as to the reason for incorporation of the company, his evidence can rise no higher than that he heard his father make an announcement that the business would be incorporated (not that it was his father's suggestion in the first place not that it was his father's decision that this occur). It is equally consistent with what Rajil says he heard being announced by his father that his father was simply telling the family what he had earlier agreed when a proposition as to incorporation was put to him by Amit.
11. That said, Rajil's evidence as to the family culture or Indian family tradition is consistent with that of the other family members (including Amit and Vinay) and there is no reason not to accept it. Nor is there any reason not to accept that, at the time the property was put into his and Vinay's names, he understood that it was his father's wish that he and Vinay should be the registered owners of Property A and that he acceded to his father's wish. Tellingly, both Rajil and Vinay seem to have been prepared to accede to or conform with their father's wishes on a range of property/financial dealings - including Vinay's compliance with the request that he transfer his half share of Property A to Rajil (even accepting that Vinay also appears to have thought that by so doing the property could be taken out of the reach of this first wife in his then forthcoming divorce) and his compliance with the request that he says his father made that he make loan repayments back in 2002.
12. As to Amit, as with Rajil, his evidence as to who made the relevant decisions is no doubt coloured by his perception of events. He attributes all the relevant decisions to himself, although at the time the business was being established he had no previous experience in such matters and he was relatively young (18 or 19 years of age). I accept that the laundry business, though in his name, was treated by him and by the other family members as a family business - the daily takings were given to Ramesh and Ramesh's approval was sought (whether necessary or not) for day-to-day expenditure.
13. Some aspects of Amit's evidence were so implausible that I cannot accept them, such as his understanding of the basis on which the auction process carried out in 2012 was to have operated (though I would not regard the fact that he was prepared to participate in a sale process involving Property A as any kind of admission that he or the company did not have an interest in the property, since this could equally be referable to him being interested in a potential sale for the benefit of Amit Laundry). Likewise I would not accept, solely on his evidence, that Rajil, Sharmilla and Vinay requested that they be removed as directors, in the face of Rajil and Vinay's evidence to the contrary and the lack of any documentary evidence to support a conclusion that they had voluntarily resigned as directors.
14. I include in the aspects of Amit's evidence that I find implausible his evidence that his brothers' names were to be registered on the title to Property A for the purpose of fulfilling his father's wish (that they own property and be set up in life) without such registration being intended to carry with it any actual ownership interest in the property.
15. Nevertheless, other aspects of Amit's evidence rang true. For example, he exhibited genuine emotion when recounting in the witness box his reaction to the news that Vinay had transferred his interest in Property A to Rajil (though I accept that he there recounted a telephone conversation to which there had been no reference in any of his affidavits). Amit's evidence that he told Mr Grgic he would be speaking to his lawyers the following day is similarly plausible (and affirmed by Mr Grgic). (Though Mr Grgic's evidence of the vehemence of Amit's reaction to news of a proposed sale, denied by Amit, also rang true.)
16. Amit's evidence as to the reliance he placed on the accountant to prepare the accounts is not implausible (given his inexperience in such matters) but I do not accept that this means that I should not treat the accounts and records of the company as accurate. They represent what Amit, as a director of the company, was prepared to adopt for the purposes of the company's reporting obligations.
17. Accordingly, for both Rajil and Amit, while I do not suggest that there was any dishonesty on their part, their evidence cannot be accepted without reservation and where there is contemporaneous documentary evidence that points in the other way (or where the evidence departs from that of Vinay) I would prefer the latter. Significantly, each gives evidence that supports in some measure that of the other's case: on the one hand, Rajil accepted that the intent of the purchase of Property A was to benefit the laundry business; and, on the other hand, Amit accepted that the intention was to put Property A in his brothers' names (and the explanation advanced by Amit as to why he suggested this and/or did so - if it were not to have been intended that they hold the property, in some sense, beneficially - was not plausible).
18. As to Vinay, of the three brothers he alone has no personal interest in the outcome of the proceedings. I considered his evidence (albeit given over the telephone) to be relatively objective and balanced in tone. He made appropriate concessions (for example as to not being present at discussions and not being involved in the family business, and as to his acceptance of the duties of directors). He did not embellish or overstate matters. His evidence in relation to the family culture or tradition (particularly in what I consider were uncontrived and almost casual references to his "elders") was particularly compelling (in circumstances where, absent an expectation that someone else would attend to the repayment of the Westpac loan, it is implausible that he would have entered into such a obligation given his then financial circumstances).
19. Finally, there was much throughout the family members' evidence that pointed to a particular culture within the family in which deference was paid to the father's wishes as head of the household. I have already referred to some of that evidence and do not here repeat it. There was no evidence from an anthropologist or social scientist as to the existence of such a tradition in the Indian culture or how it would manifest itself in a family situation of this kind. It suffices for present purposes that I record my finding that within this particular Indian family there was a culture in which such deference was paid to the position and wishes of the head of the family. Further, as between the sons, I accept Vinay's evidence that respect was accorded to the eldest (Amit) whose status gave him, as Amit himself recognised, greater authority and responsibility within the family than that of his younger siblings.

Documentary evidence

1. The other matter to be noted prior to turning to the issues in dispute is as to what is revealed by the documentary evidence. That can be summarised as follows.
2. First, from its incorporation Amit Laundry issued group certificates allocating to family members a (notional, in the sense that they did not actually receive cash or other monetary payment of those amounts) salary (T 231). The 2000/2001 company accounts, to which Rajil was taken in cross-examination, recorded amounts withheld for salary and wages and also recorded loans to shareholders, from which it appears that (at least as an accounting exercise) the amount recorded as wages to shareholders was notionally treated as being to the credit of their shareholder accounts.
3. From 2008, Amit Laundry paid rent to Rajil and claimed that rent in its accounts and tax returns as an expense of the company. (Amit's explanation that this was by way of financial assistance to Rajil does not accord with the fact that the company still paid rent even after Rajil ceased to operate his own dry cleaning business.)
4. Second, the company accounts record rent as an expense at a time when the company was occupying only the ground floor Property A premises and no other premises. Thus, while Amit Laundry paid no "rent" as such for the period of its occupation of the ground floor of Property A prior to 2008, it may be inferred that its re-payments of the Westpac loan were treated as rent until that loan was re-paid. I accept Rajil's submission that the treatment by Amit Laundry of the loan repayments as rent is not consistent with those amounts being payments of the company's own debt (nor was the description noted in the various cheque butts written by Amit of payments as referable to "R and V Jain loan"). Amit's explanations for the former (in effect that he was inexperienced and trusted his accountant) and for the latter (that he simply copied deposit slips) do not address the fact that the documentary evidence does not reflect that the repayments of the Westpac loan were payments in relation to a debt owed by the company. Property A was not shown as an asset of the company in the company accounts. Nor was there any reference in the accounts to the Westpac loan as a liability of the company or for interest on the loan as an expense of the company.

Determination

1. I turn now to the issues in dispute.

Express/implied trust

1. Prayer [5] of the statement of claim (in the alternative to the claim based on resulting trust) seeks a declaration that Rajil holds his title to Property A: ... upon trust to permit the plaintiff to use the Laundry Premises for the conduct of its business for so long as it continues to operate its business from those premises upon condition that the plaintiff is responsible for the payment of rates and water rates in respect of [Property A].
2. In essence, Amit Laundry submits that there was an "implied or express trust" arising from an agreement (referred to as the "Acquisition Agreement"; see statement of claim at [7]-[9]) reached between the directors of Amit Laundry concerning the basis on which Property A would be held (T 299.22).
3. The Acquisition Agreement is pleaded in the following terms (at [7] of the statement of claim): The directors including the defendant agreed that the plaintiff would acquire the property in the names of Vinay Jain and the defendant and that the acquisition would be funded as to approximately $168,000 by obtaining a business development loan from Westpac Banking Corporation in the joint names of Amit Jain, the defendant and Vinay Jain, to be guaranteed by the plaintiff, and with security for the facility provided by registered mortgages over land owned by the plaintiff at [the Vacant Land] and Amit Jain's home at [the Granville Property] upon the basis that as between the plaintiff and the nominal borrowers, the borrowing was on behalf of the plaintiff and the plaintiff would be responsible to meet all repayments due under that Westpac facility, as well as paying the balance of the purchase price and stamp duty from its own funds and all outgoings relating to ownership of the property ("The Acquisition Agreement"). [my emphasis]
4. As already noted, the directors at the relevant time included not only the three brothers but also the wives of Amit and Rajil. The pleaded case ("[t]he directions including the defendant") thus appears to include each of Abha and Sharmilla as a party to the relevant argument (though the evidence of their involvement and assent was vague and in general terms).

Legal principles

1. The term "implied trust" is used in various senses throughout the law. In the present context it denotes not a resulting trust but rather a form of express trust (see L Tucker et al, Lewin on Trusts (19th ed, 2015, Sweet & Maxwell) at [7-004]). The trust arises as a response to a settlor's intention, even though that intention is not explicit. It has been described as a trust arising from "an implied intention manifested by conduct and/or words" (Carter v Brine [2015] SASC 204 at [303] (Blue J)).
2. Although the relevant intention is, in one sense, real, it is more accurate to speak of a settlor's manifestation of intention since the court approaches the matter objectively (see generally, Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26). An implied trust in the present context simply refers to those cases where the court infers an actual intention to create a trust by reference to "the language of documents or oral dealings having regard to the nature of the transactions and the circumstances attending the relationship between the parties" (Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62 at 69 [3]; [2015] HCA 6 (French CJ)). In Korda, French CJ described (at 70) the following passage from Jacobs' Law of Trusts in Australia (7th ed, 2006) as "usefully succinct": The author of the trust has meant to create a trust, and has used language which explicitly or impliedly expresses that intention, either orally or in writing. The fact that a trust was intended may even be deduced from the conduct of the parties concerned but if there is any uncertainty as to intention, there will be no trust.
3. What is clear is that the intention which is to be ascertained is a manifested, and not a private subjective, intention (Byrnes v Kendle at 277 (Gummow and Hayne JJ); 290 (Heydon and Crennan JJ)). A useful summary of the position was provided by Elliott J in Nguyen v Phan (No 2) [2015] VSC 634 (at [237]): In order to find an express trust was created, it is not necessary for the plaintiffs to prove the parties specifically and formally turned their minds to the fact that a trust was being created; no special or technical language needs to be used; it is sufficient if the intention to create a trust may be ascertained from what the parties actually agreed or said. The intention is imputed when manifest in what is expressly agreed or declared. That intention must be clear from the language used, as objectively understood in the relevant circumstances of the case, including the relationship of the parties. More than once, Gummow J has observed that the precision that might be expected in arms-length commercial transactions is not to be expected in private family dealings. [footnotes omitted]
4. Apart from the need for a sufficiently certain manifestation of an intention to create a trust, it is also necessary for there to be certainty of subject-matter and certainty of object (Knight v Knight (1840) 3 Beav 148 at 173; Kauter v Hilton (1953) 90 CLR 86 at 97). In the present case, the real issue is as to the requisite intention to create a trust.
5. As a final matter, I note that there are authorities criticising too great a reluctance to infer an intention to create a trust; thus, it has been said that "[i]f the inference to be drawn is that the parties intended to create or protect an interest in a third party and the trust relationship is the appropriate means of creating or protecting that interest or of giving effect to the intention, then there is no reason why in a given case an intention to create a trust should not be inferred" (see Bahr v Nicolay [No 2] (1988) 164 CLR 604 at 618-619 (Mason CJ and Wilson JJ)).

Determination

1. Rajils's basic contention is that the directors of Amit Laundry (some but not all of whom it is alleged provided the purchase price) agreed that Vinay and Rajil would hold Property A on express trust for Amit Laundry or that such an intention should be implied from the Acquisition Agreement. I am unable to conclude, on the balance of probabilities, that there was any such concluded agreement between (all or the majority of) the directors of Amit Laundry.
2. First, the relevant discussions said to have given rise to the agreement were family discussions over the dinner table, at which two of the directors (Abha and Sharmilla) were said to have been there ("of course") because they were serving the food. The evidence of their assent to the proposal for the acquisition of Property A was vague to say the least.
3. Second, a third director, Vinay, says (and I accept his evidence) that he was not present at the discussions in relation to the purchase of the property. The fact that he heard (in some undisclosed fashion) of the proposal and was in general prepared to accede to his father's (or older brother's, as the case may be) wishes as a matter of family and/or Indian culture does not establish that he was a party at the time to an agreement of the kind pleaded when he was not present at the relevant discussion(s). True it is that he might later have ratified a decision reached by other directors at those discussions so as to lead to the conclusion that there was a concluded agreement between all of the directors, but the evidence does not go anywhere near that far. At most, Vinay was at all relevant times prepared to act as he understood his father (or Amit, he being included by Vinay in the concept of "elders") wished at any particular time (which, as seems evident from the later transfer of his 50% interest, was not necessarily a fixed or static concept).
4. Third, the position of Rajil and Amit is more nuanced. It can readily be accepted that Rajil would have been in agreement with the suggestion that his name be placed on the title (especially if he understood that he would thereby become the owner but that it was unlikely that he would be expected to make any loan repayments, notwithstanding his entry into the loan documents) and thereby would gain a 50% interest in the property (i.e., with no actual contribution by him to its acquisition); even more so given his custom of compliance with his father's wishes. However, Rajil (as does Ramesh) also accepts that at least part of the purpose of the acquisition was to enable Amit Laundry to relocate its business to Property A (as a solution to the problems that had been encountered with the development of the Vacant Land) and to enable Amit Laundry to save the rent that was then being paid for Property B. Even Vinay, who was not present at the discussions, had heard that the proposal was to relocate the laundromat and save on the payment of rent (as well as for the family to have a property).
5. Amit was also in agreement for the property to be acquired in the names of his brothers; indeed, he says that this was his suggestion (in order to satisfy his father's wish). Amit also understood that it was his father's wish for the company not to pay rent in addition to his father's wish for there to be property in his brothers' names (T 73.43-50). Amit's evidence was it was because of both of these wishes that he suggested that the purchase of Property A be effected in the way that it ultimately was (see also T 75.4-12). I do not accept the suggestion put forward by Amit to the effect that his intention was that his brothers' were to be on the title "in name only". It is implausible that he could have believed that a wish (by his father) to see his sons set up in life and have property in their own name "which they would own" (which he accepted in cross-examination was what he understood his father's wish to be) would be satisfied by putting the title of Property A into the names of Rajil and Vinay but for them only to hold that title in effect the bare trustee for Amit Laundry. That, however, does not mean that he had an intention at the time Rajil and Vinay should acquire both legal and beneficial interests in the property immediately and unconditionally (as to which see the discussion at [275]ff below).
6. I find that Amit's intention was to do that which he seems to have accepted was intended to be the case with the acquisition in his name of the Granville Property, namely to facilitate the acquisition by Rajil and Vinay of Property A as an investment shared by the two of them.
7. Significantly, however, I find that Amit also intended the purpose of the acquisition to be in order to enable Amit Laundry to operate its business from that property at least until the Vacant Land was developed and the laundry business could be relocated to that property.
8. Treating the intention of Amit Laundry as that of its controlling mind (Amit), I find that as at the date of acquisition of Property A the putative settlors (Amit Laundry as to about 10% and the three brothers as to about 90%), intended: that legal title would be vested in Rajil and Vinay by the fact of registration (which occurred) but that Rajil and Vinay would not be free to do as they wished with the land; rather, the ground floor of the property was to be made available for use by Amit Laundry as its laundry premises for an undefined period (at least up to the time at which the Vacant Land was able to be developed for use as a laundry).
9. While there might have been a plausible inference that what all parties contemplated, in effect, was a split between legal ownership (referable to the registration on the title of Rajil and Vinay) and certain beneficial entitlements/rights on the part of Amit Laundry annexed to that property (in short, a relationship of trust), such that it could be inferred that an express trust was intended and hence that Rajil and Vinay were bound in conscience not to deal with Property A inconsistently with the intentions of the putative settlors (or contributors to the purchase of the property) as at the date of acquisition, ultimately I am not persuaded on the balance of probabilities that this inference should be drawn.
10. I accept that it is not necessary that alleged settlors specifically and formally intend "a trust"; that no special or technical language is needed (and clearly would not here have been used - since, without any criticism intended, the parties displayed a lack of understanding of legal concepts); and that the precision expected in arms-length commercial transactions is not to be expected in private family dealings. However, I am not persuaded that there was a concluded agreement in the terms of the Acquisition Agreement and I am of the opinion there is insufficient certainty as to the shared intention of the relevant parties (Amit Laundry and the three sons) to support a finding that there was at the time of acquisition of Property A an express or implied trust binding Rajil and Vinay to hold the property subject to an obligation to keep it available to fulfil the purpose of allowing Amit Laundry to use the ground floor as a laundry either until such time as the Vacant Land was developed or for as long as it wished.
11. That leads back to a consideration of the principal way in which Amit Laundry framed its case: the presumption of a resulting trust. As already noted, if the presumption of resulting trust arises then Rajil must show that it was more likely than not that the contributors (Amit Laundry in respect of the deposit; Amit, Rajil and Vinay in respect of the Westpac Loan) intended the holders of the legal title (Rajil and Vinay) to take beneficially.

Legal principles

1. The relevant presumption was formulated (at 266-267) in Calverley by Deane J in the following terms (see also Gibbs CJ at 246-247 and Mason and Brennan JJ at 258): … where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it.
2. The theoretical basis of resulting trusts and the possibility or desirability of identifying clear-cut categories of resulting trust (and even the reason for the appellation "resulting") have been the subject of judicial and academic debate (Kerr v Baranow [2011] 1 SCR 269; [2011] SCC 10 at [16]; noted by Edelman J, sitting as his Honour then was in the Supreme Court of Western Australia, in Anderson v McPherson [No 2] [2012] WASC 19 at [89]; [90]-[93]; see generally, PW Young, C Croft and ML Smith, On Equity (Lawbook Co, 2009) at [6.930]). Fortunately, or otherwise, it is not necessary to enter into such debates. Suffice it to note that the presumption of resulting trust involves a "legal presumption" (see Jacobs' Law of Trusts at [12-10]; W Swadling, "Explaining Resulting Trusts" (2008) 124 Law Quarterly Review 72), namely the presumption of a declaration of trust (in Anderson v McPherson, Edelman J referred to the rebuttable presumption as being "of the fact of a manifest declaration" (at [106]; see also, Jacobs' Law of Trusts (at [12-10])).
3. The presumption of a resulting trust is thus a presumption as to a declaration of trust, premised on a presumed intention to create an equitable (beneficial) interest in the acquired property in someone other than, or in addition to, the person in whom legal title is vested. Once the primary fact giving rise to the presumption is established (for example, that one or more persons has or have provided part or all of the purchase price but the legal title has been vested in another), the burden falls on the party disputing the existence of a resulting trust (here, Rajil) to rebut the presumed fact on the balance of probabilities (see Ryan v Ryan [2012] NSWSC 636 at [57]; Weige v Cupton Pty Ltd (2012) 8 ASTLR 229; [2012] NSWCA 414 at [46]; Jacobs' Law of Trusts at [12-10]). Where that party fails to rebut the presumption, the court "upon consideration of all circumstances presumes there was a declaration [of trust] though the plain and direct proof thereof be not extant" (Cook v Fountain (1672) 3 Swan 585 at 591; 36 ER 984 at 987 (Lord Nottingham LC)).
4. So understood, the presumption of resulting trust is thus the "starting point of a factual enquiry" about the intention of the party (or parties) who provided the funds for the purchase in question (Black Uhlans Inc v New South Wales Crime Commission Cautionary (2002) 12 BPR 22,421; [2002] NSWSC 1060 at [136]; Dyer v Dyer (1788) 2 Cox Eq Cas 92; (1788) 30 ER 42 at 43; Fowkes v Pascoe (1875) LR 10 Ch App 343 at 352; Re Kerrigan; Ex parte Jones (1946) 47 SR (NSW) 76 at 83), the presumption operating "to place the burden of proof [on the party disputing the trust], if there be a paucity of evidence bearing upon such a relevant matter as the intention of the party who provided the funds for the purchase" (Nelson v Nelson (1995) 184 CLR 538 at 547; [1995] HCA 25(Deane and Gummow JJ)).
5. The search for the intention of the relevant party (or parties) intention is as to proof of a "definite" not "nebulous" intention (Weige v Cupton Pty Ltd [2012] NSWCA 414 at [46]; referring to Drever v Drever [1936] ALR 446 at 450 (Dixon J)); the "objective, or manifest, intention ... it is not a subjective, uncommunicated intention but it is to be inferred from what the parties do or say" (Anderson v McPherson (No 2) [2012] WASC 19 at [156] (Edelman J, citing Calverley at 261 (Mason and Brennan JJ))). The relevant intention is to be found as at the date of purchase (or immediately thereafter) (Calverley at 251(Gibbs CJ); and at 262(Mason and Brennan JJ)), although evidence of later acts and declarations are admissible (as admissions against interest) against the party who made them (Black Uhlans at [138] (Campbell J, as his Honour then was)).
6. Establishing on the balance of probabilities that a contribution of the requisite character has been made is a "factual precondition" to a successful assertion that there is a presumption of resulting trust (Hamed v Elddin [2016] NSWCA 9 at [23] (Meagher JA and Gleeson JJA, Sackville AJA) Elddin v Hamed (No 2) [2015] NSWSC 654 at [83] (Button J); see also, Ong v Lottwo Pty Ltd (in Liq) [2013] SASCFC 57 at [40] (Nicholson J, with whom Kourakis CJ and Stanley J agreed)). It is essential that the alleged contribution bears the character of purchase moneys (Calverley at 246 (Gibbs CJ); see also, Ong v Lottwo at [28]-[30]).
7. In identifying the purchase price, a "broader concept" is to be applied than simply the stipulated consideration for the purchase (Black Uhlans at [144]; Campbell J). Regard may be had to the incidental costs of the purchase, such as legal expenses, stamp duty and registration (Murtagh v Murtagh [2013] NSWSC 926 at [81] (Hallen J); Ryan v Ryan at [46]; Martech Energy Systems Pty Ltd (in liq) v Bell [2005] VSC 198 at [8] (Hollingworth J); Shepherd v Doolan [2005] NSWSC 42 at [24] (White J, as his Honour then was); Black Uhlans at [144] (Campbell J); Ryan v Dries (2002) 10 BPR 19,497; [2002] NSWCA 3 at [52]-[53] (Sheller JA); Currie v Hamilton [1984] 1 NSWLR 687 at 691 (McLelland J, as his Honour then was). What is significant "is the cost to the purchasers rather than the benefit to the vendor" (Currie v Hamilton at 691).
8. Incurring liability under a mortgage will amount to a contribution to the purchase price: "parties borrowing jointly in order to make up the acquisition cost are treated as having contributed the borrowed capital in equal shares" (Buffrey v Buffrey (2006) 12 BPR 23,619; [2006] NSWSC 1349 at [14] (Palmer J); Calverley). What is more problematic is the relevance, for the purposes of the resulting trust presumption, of mortgage repayments in the absence of a liability under the mortgage. It has been said that such payments are made towards securing a release of a charge over the property rather than as contributions to the purchase price (Calverley at 252 (Gibbs CJ); at 257 (Mason and Brennan JJ)).

Is there a presumption of resulting trust in the present case?

1. In the present case, the evidence establishes the basic facts of the joint liability of Amit, Rajil and Vinay under the Westpac loan facility (as to 90.92% of the purchase price) and of the payment by Amit Laundry of the deposit (as to 9.08% of the purchase price). Accordingly, in the absence of evidence to the contrary as to the intentions of the three sons and the intention to be imputed to Amit Laundry respectively (and subject to the operation of any presumption of advancement) the starting point must be a presumption of resulting trust under which the beneficial ownership is held in proportions reflecting these unequal contributions to the acquisition of Property A.
2. Three factual issues arise in the present context.
3. First, whether the deposit is in fact to be characterised as having been paid on behalf of Vinay and Rajil (as Rajil contends). If so, then the deposit would not be characterised as a contribution by Amit Laundry to the purchase price, the consequence being that (subject to the second issue below) Amit Laundry will have made no contribution to the purchase price at all.
4. Second, whether all the mortgage repayments were paid by Amit Laundry on its own behalf (i.e., not for the benefit of Vinay and Rajil, as Rajil contends) and, if so, the relevance of this for the purpose of the operation of the presumption.
5. Third, whether the Westpac loan facility under which the three sons were jointly liable for the funds used to pay the bulk of the purchase price is properly to be characterised (as Amit Laundry contends) as having been taken out wholly on behalf of Amit Laundry (in which case, if the deposit was not paid on their behalf - issue one above - Amit, Vinay and Rajil would not have contributed to the purchase price at all).
6. I consider each in turn.

First issue: whether the deposit is to be characterised as having been paid on behalf of Vinay and Rajil

1. As adverted to above, there is no doubt that the deposit was in fact paid by Amit Laundry. Rajil, however, disputes that Amit Laundry has made any direct financial contribution to the purchase price of Property A at all (T 300.16-19). He argues that the deposit was paid in lieu of wages to Rajil and Vinay, and thus in substance was a contribution by them, rather than by the company, to the purchase price (written submissions at [3(a)]).
2. For Amit Laundry, it is argued in response to that submission that in 1996, when Property A was purchased, neither Rajil nor Vinay had (or could have) contributed much assistance in the laundry business because they had been at school or at TAFE for much of the time prior to the purchase (their involvement in the business being limited at best to such assistance as was provided after school/TAFE hours) (T 39.49-40.38). (Further, in the case of Vinay, it is submitted that his subsequent commitments as a pharmacist meant that he contributed nothing to the laundry business (T 66.5-15).)
3. This issue is one that can be disposed of shortly. There is no evidence that Amit Laundry was under any liability or obligation, or had otherwise agreed, to pay the deposit for Property A in lieu of wages to Rajil and/or Vinay for work performed by either of them in connection with the laundry business in the period prior to Amit Laundry's incorporation (nor is any reason proffered to explain why the company would have assumed any liability of Amit - assuming there had been any - for past wages). Rajil's understanding (supported by Vinay's evidence and also that of Abha) was that Ramesh was very strict and there was no money paid (accepting that his daily needs were being met out of the laundry earnings). Rajil made no claim for wages at any time prior to the proceedings. Nor is there evidence in the company's accounts to suggest that the company had assumed any responsibility for payment of wages for service rendered by family members prior to its incorporation.
4. As noted earlier, Rajil accepted that from 1996, the company commenced allocating a salary for which group certificates were issued (T 231). The 2000/2001 company accounts, to which Rajil was taken in cross-examination, recorded amounts withheld for salary and wages and also recorded loans to shareholders, from which it appears that at least as an accounting exercise the amount recorded as wages to shareholders was notionally treated as to the credit of their shareholder accounts (though Rajil does not appear to have understood this). This is not consistent with payment of unrelated amounts (the deposit and the loan repayments for Property A), being intended to be in lieu of any wages due to Rajil (or Vinay).
5. On Rajil's evidence his full time role in the laundry prior to the incorporation of the plaintiff company was from 1993/1994 to 1996 and, after the incorporation of the company, until 2004. Leaving aside the inconsistency between Rajil claiming (and receiving) unemployment benefits during the period when he now says he was working full time at the laundry, the position for which Rajil here contends is inconsistent with the evidence as to how the laundry business operated even after the incorporation of Amit Laundry (see below).
6. As to Vinay, his role at the laundry must have been minor on any view of things. He was young when the business was acquired in 1985 (in primary school). He was at university from 1992-1993 and then working as an intern in various pharmacies (including outside Sydney) from 1994 until he qualified as a pharmacist and thereafter it is not suggested that he had any role in the laundry business.
7. The takings from the laundry business (both before and after incorporation of Amit Laundry) were provided (on a daily basis) to Ramesh who maintained a record of the takings (and of family expenditure) in the handwritten exercise books. The takings were deposited (not by Ramesh himself but usually by Amit) into a bank account operated for the business on which Amit was the signatory and, after incorporation, in an account held in Amit Laundry's name.
8. The consistent evidence of family members, including that of Abha, establishes that within the family it was Ramesh who, in effect, was responsible for doling out (or approving the distribution of) money to family members for their day-to-day needs (groceries, clothing and the like). Broadly speaking, Ramesh was thus the ultimate decision maker as to how the revenue from the laundry business was to be distributed at least towards the family's day to day needs. Decisions as to the disbursement of moneys for the purpose of the laundry business (to the extent made by Amit), were still made, it would seem, after consultation between Ramesh and Amit. No claim for wages was made by Rajil (or Vinay) prior to the commencement of these proceedings.
9. The assertion that the payment of the deposit for Property A was in satisfaction of any entitlement on the part of Rajil or Vinay for outstanding wages or employee entitlements is thus inconsistent with the way the laundry business operated and inconsistent with the company's accounting records.
10. I am not persuaded that the deposit was paid by Amit Laundry in lieu of the payment of wages to Rajil and Vinay. I find that Amit Laundry contributed 9.08% of the purchase price in its own right.

Second issue: the relevance of the mortgage repayments

1. Although Vinay's evidence (and, also that of Rajil) was that Vinay had contributed some amounts to the loan repayments in respect of Property A, this cannot be correct in relation to the only amounts so identified in that regard (the Newcastle payments), since by then the Westpac loan had been fully re-paid. I note that the proposition that Amit Laundry had in fact paid all the purchase moneys for Property A was seemingly admitted by Rajil in a without prejudice letter (privilege in respect of which was waived at the earlier interlocutory hearing) dated 22 November 2016 by his solicitors (see Annexure G to Amit's 1 December 2016 affidavit); and there was no application to withdraw that admission (nor, seemingly, any basis on which to do so).
2. I find that all of the mortgage repayments were paid by Amit Laundry and, for the reasons given above, I find that they were not made in lieu of wages or other employee entitlements of Rajil or Vinay. Hence I do not accept the submission by Rajil that any mortgage repayments by Amit Laundry were in substance contributions by Rajil and Vinay.
3. The next question is whether these mortgage repayments are to be taken as contributions to the acquisition of Property A for the purposes of the presumption of a resulting trust.
4. As a general proposition, mortgage repayments do not constitute a direct contribution to the purchase price for the reason that "the extent of the beneficial interests of the respective parties must be determined at the time when the property was purchased and the trust created" (Calverley at 252(Gibbs CJ); 257 (Mason and Brennan JJ)). However, two qualifications to this proposition are necessary.
5. First, in certain circumstances, such repayments may be recoverable on some other basis; for example, there may be a suit for equitable contribution or for a declaration of a constructive trust or equitable charge or lien; or a claim may be put on some other restitutionary basis (see Black Uhlans at [143]). However, Amit Laundry has not advanced any such claim.
6. Second, in Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56 there was found to be sufficient evidence from which the shared intention of each purchaser could be discerned: namely, that the parties' respective interests in the property would be determined by their contribution, not just to the purchase price, but also by way of repayment of the loan and in discharge of the mortgage debt in respect of the land. This decision is relied upon by Amit Laundry for the proposition that, where the property the purchaser (or purchasers) intended to acquire was "not the title to land subject to mortgage but the land freed of the mortgage", then the "price paid to free the land of mortgage as well as the price paid for the title to the land itself must be taken into account in determining the parties' beneficial interests" (see Calverley v Green at 262-263; and see Jacobs' Law of Trusts at [12-11]).

Consideration of the decision in Bloch

1. Amit Laundry contends that the present case is to be characterised as a Bloch (rather than a Calverley) type of case (T 283.20). This requires consideration of both the facts and reasoning in that case. They can be summarised as follows.
2. In Bloch, a father paid $6,600 directly towards a purchase price of $24,000 and his son paid the balance using $11,500 raised by way of a secured bank loan and $5,900 from his own resources (see Bloch at 399). The son became the sole registered proprietor of the property. The father later contributed a further $1,000 as part of a payment made in reduction of the mortgage debt.
3. The primary judge found that, prior to the purchase, there was an "arrangement" of some sort (not amounting to a declaration of an express trust) such that "whatever [the parents] put in, that is what [they would] receive in the proceeds from [a later sale of the] flats" (see Bloch at 394; 397; 399-400). The primary judge held that the circumstances gave rise to a resulting trust; that any presumption of advancement was rebutted; and assessed the beneficial interest of the father as one-third (treating his contribution to the acquisition of the property as including not merely the $6,600 but also the later provision of $1,000 in reduction of the mortgage debt) (see Bloch at 397; 400-401).
4. In the High Court, it was contended by the son that the facts established an express (rather than a resulting) trust, the consequence of which was that it failed for want of writing (Bloch at 396). Counsel for the son also argued that it was the "actual proportionate contribution made by the donor to the purchase price" alone which could be taken into account in quantifying the beneficial interest under any resulting trust (Bloch at 397).
5. Wilson J (with whom Gibbs CJ, Murphy and Aickin JJ agreed) described the facts (at 397) as a "classic illustration" of the creation of a resulting trust and said that the inference was that the father intended the son to hold the property in trust "in a proportion corresponding to the proportion of the purchase price which was contributed by him", going on to say (at 398): … there is evidence that some of the rents received from the property were applied in reduction of the principal and interest owing under the mortgage. It is reasonable, therefore, to suppose that some accretion, incapable of precise computation, to the father's initial contribution to the purchase price is to be derived from the application of the rents in this way, bearing in mind that he was entitled to a one-third interest in the property. Given a resulting trust, it was for the trial judge to determine on the evidence the precise extent of the beneficial interest thereby created.
6. His Honour held (at 398) that it was open to the primary judge to accept evidence of a conversation between the father and son as establishing "a consensus between the father and the son in relation to the question of fact which [the trial judge] had to determine, namely, the respective contributions which the parties made towards the purchase". Such evidence "did not itself establish the trust; that was constituted when the property was acquired" (Bloch at 398) (my emphasis). In other words, the evidence of actual intention assisted in the quantification of the beneficial interests under a pre-existing (resulting) trust.
7. Brennan J delivered a separate judgment. His Honour posed the question (at 400) as to whether the father's beneficial interest was founded under an arrangement made before the land was purchased, upon the direct contribution of $6,600, or, relevantly, upon "that contribution and the additional sum contributed towards the discharge of the mortgage" (my emphasis). His Honour characterised (at 401) the primary judge's finding as to a "common understanding" about the way in which the property was to be shared as establishing "an actual intention common to the parties that the beneficial interests should be in the same proportion as the moneys contributed" (my emphasis). His Honour then said the following (at 402): In the circumstances of this case the utilization of the rentals and the making of cash contributions by all parties tend to show that the asset which they sought to acquire was not merely the mortgaged land but the unencumbered land. They contributed what they could afford to acquire the unencumbered title and it is more likely than not that they intended the whole of their respective contributions to furnish the measures of their respective interests in that asset. … … The inference to be drawn from the facts of the present case is that the parties intended their respective beneficial interests to be proportionate to the contributions made to acquire the land and to free it of encumbrance. The agreement by the son that the parents should have one-third of the proceeds of the land is both supportive of this inference and the best evidence of the proportion of the contributions made by the parties and of their respective beneficial interests in the asset. [my emphasis]
8. The essential point of Bloch, as made clear in the judgment of Brennan J, was thus that the shared intention of the parties was that the parties' interests in the property were to be determined by reference not only to the contribution to the purchase price but also to their contribution to the loan repayments in discharge of the mortgage debt.
9. Earlier, in Cowcher v Cowcher [1972] 1 All ER 943; [1972] 1 WLR 425, Bagnall J had distinguished (at 442) between two types of agreement: … (1) an agreement that, irrespective of the actual payments to the vendor and the legal obligations to an outside mortgagee, as between themselves A and B shall be treated as providing the money (including being liable for mortgage repayments) in, say, equal shares; and (2) an agreement that irrespective of the shares in which, as between themselves, the money has been provided, the property shall be held on an express trust for A and B in, say, equal shares.
10. Bangnall J considered (at 432) that the first type of agreement would be "part of the arrangement which gave rise to the resulting trust and consistent with it" whereas the second would ultimately be "a contractual express trust inconsistent with that resulting trust" such that compliance with the formal requirements for dispositions in relation to land would be necessary.
11. In Allen v Synder [1977] 2 NSWLR 685 at 692, Glass JA was unable to agree with that analysis on the basis, relevantly, that his Honour considered that "in the vast majority of cases, parties do not direct their minds to treating their money contributions as notionally larger or smaller than they were" because "[w]hat they think about, if they think at all, is ownership". However, Glass JA conceded (at 692) that "resulting trust is the proper description where there is a correspondence between the proportions contributed and the beneficial interests intended" (my emphasis).
12. Brennan J in Bloch referred (at 402 fn 23) to the judgment of Glass JA in Allen v Snyder but considered that Bloch did not raise for consideration the effect of any intention by the purchasers in the case before him "that their respective interests should be in different proportions from the proportions of their contributions" (again, my emphasis).
13. Calverley confirmed the general proposition that mortgage repayments do not constitute part of the purchase price as such, but cast no doubt upon Bloch; rather the decision was distinguished. Mason and Brennan JJ said the following (at 262-263): As there was no agreement made after the purchase to alter the equitable interest acquired when the property was purchased, the payments made under the mortgage work no alteration in those interests. This case cannot be likened to Bloch v Bloch where the relevant property the parties intended to acquire was seen to be not the title to land subject to mortgage but the land freed of the mortgage. In such a case the price paid to free the land of mortgage was well as the price paid for the title to the land itself must be taken into account in determining the parties' beneficial interests. Mortgage payments may quantify the parties' interests under a resulting trust of a property acquired as a mortgage-free investment, but they would rarely quantify the interests of parties under a resulting trust of a house property acquired as a home to live in. [footnotes omitted] [my emphasis]
14. In Thornton v Hyde [2004] NSWSC 125, Burchett AJ referred to parts of the above passage then, having described the facts of the case at hand as "quite unusual", found that the common intention from the beginning was that all the mortgage payments should be made by the plaintiff and at the time of the acceptance of the mortgage loan, the defendant (the alleged resulting trustee) "no longer had any firm intention, if she had ever really had an intention of that character, that the house should be 'a home to live in', so far as she was concerned". Accepting (at [16]) that the joint nature of the mortgage would ordinarily produce a different result, his Honour held that the facts as found gave rise to a presumption of resulting trust under which the plaintiff was beneficially entitled to the property (subject to an obligation to indemnify the defendant against any liability which might remain pursuant to her liability as a joint mortgagor).
15. Thornton was followed in Bilson v Rogers [2008] NSWSC 469, where Jagot AJ (as her Honour then was) treated as salient (at [28]) the fact that the defendant in Thornton "never had any intention of accepting any liability under the mortgage" and that there had been "clear concurrence in the plaintiff making all repayments and bearing all expenses" which amounted to an admission of the plaintiff's "exclusive beneficial interest". Her Honour continued (at [29]-[30]): The facts of the present case are close to those considered in Thornton v Hyde. The first defendant appeared on the mortgage solely for the purpose of obtaining the required loan. He made statements at the time consistent with his intention that he should have no responsibility for the mortgage on the basis that the Baulkham Hills property would belong to the plaintiff. His actions were consistent with this intention at the time of entry into the purchase. He did not like the property but did not think that mattered because it was intended to be the "plaintiff's house anyway". This is not inconsistent with the fact that the first defendant intended to live in the property for the duration of his relationship with the plaintiff. It indicates that the first defendant did not, at the time of purchase, consider that he would have any right, title or interest in the property despite being named on the mortgage and title documents. His capacity to live there would depend wholly on his relationship with the plaintiff. Further, the plaintiff decided to go ahead with the purchase on her own without any further discussion with the first defendant. The plaintiff made all the direct monetary payments associated with the purchase. The fact that the first defendant accepted the plaintiff making all payments associated with the property is an admission of his intention, shared with the plaintiff at the time of purchase, that the property would belong to her. In contrast to Calverley v Green, this was not an arrangement whereby the plaintiff intended to pay the mortgage and the first defendant the household living expenses. The evidence supports the inference (which I draw) that the parties intended that the plaintiff would pay the mortgage and all household expenses (including house upgrades and renovations) other than the first defendant's business expenses and his essential expenses (for food and the like). That, moreover, was in fact what occurred. This reflected their common position on purchase that the Baulkham Hills property belonged to the plaintiff. [my emphasis]
16. Much earlier, in Currie v Hamilton [1984] 1 NSWLR 687, McLelland J (as his Honour then was) described (at 692) the quantum of the beneficial interests in a Bloch situation as being "subject to subsequent fluctuations in accordance with [the parties'] relative contributions thereafter made towards discharging the mortgage debt". His Honour described Bloch (at 692) as a case where there was "sufficient circumstantial or other evidence (although falling short of establishing an express trust) to enable the court to conclude that the intention of the parties" was that the beneficial interests in the property would be measured in a particular manner (my emphasis). Support for this analysis may be found in the judgment of Deane J in Calverley, his Honour there noting (at 271) that the evidence before him was "silent" as to the intentions of the parties "on the subject of the beneficial ownership" of the property and that it disclosed "no adequate grounds for an inference … that there was an arrangement between them or that either intended that the beneficial interest in the property should be otherwise than according to their respective contributions to the actual purchase price" (again, my emphasis).
17. In Shepherd v Doolan, White J (as his Honour then was), citing each of Bloch, Currie v Hamilton and Calverley, stated the principle as follows (at [23]): If the evidence establishes that it was the intention of the parties that their respective interests should be in accordance with something other than their contributions to the purchase price, such as their contributions to the purchase of the land and discharge of a mortgage, effect will be given to that intention so that although the trust will arise at the time of purchase, the quantum of their interests will fluctuate in accordance with that intention.
18. Thus, the crucial point at issue in a so-called Bloch case is the shared intention of the parties contributing to the purchase price as at the relevant time. Bloch does not in my opinion lay down a legal rule about the nature of mortgage repayments as such but, rather, it illustrates the fundamental significance of ascertaining the relevant intention. This is made clear by the focus on intention in Thornton and Bilson, and particularly in the judgment of Brennan J in Bloch, to which I have earlier referred.
19. In light of the foregoing, for Amit Laundry's contention (that the mortgage repayments made by it relevantly amounted to a contribution to the purchase price for the purposes of giving rise to a presumption of resulting trust) to succeed it would be necessary for Amit Laundry to point to evidence akin to the arrangement in Bloch and similar cases. The factual question is whether it was the parties' intention at the relevant time that Amit Laundry's contribution to the purchase price (and hence its beneficial interest in the property) would be measured by reference to its later mortgage repayments.

Submissions

1. Amit Laundry's position is that this was the case of a "business investment" and "business style loan" to acquire a property intended to be a mortgage free investment for the purpose of the company obtaining larger premises and the security of ownership of its premises from which it operated (see T 279.31-36; T 283.19-29; T 285.4-6). Thus, on Amit Laundry's case it effectively contributed the whole of the purchase price (see T 283.35).
2. In support of its characterisation of the circumstances, Amit Laundry points to the evidence that neither Rajil nor Vinay had access to funds sufficient to repay the Westpac loan (T 284). Amit Laundry argues that the present case is to be distinguished from cases in which there was a "domestic arrangement" involving a long-term mortgage liability (see T 285.49-286.4).
3. Amit Laundry notes that at the time the property was purchased Rajil and Vinay were both directors of the company and that at no time was any approval sought for the company's funds to be used for the personal benefit of Rajil and/or Vinay to the detriment of the company. Referring to Mordecai v Mordecai (1988) 12 NSWLR 58 the rhetorical question is posed by Counsel for Amit Laundry as to how there could be attributed to Amit Laundry an intention to benefit two of its directors (that is, Rajil and Vinay) in a manner which was "outside the scope and purpose of the company's business at that time" (T 286.24-27).
4. In this regard, Amit Laundry notes that Vinay accepted in cross-examination that there was a potential problem if company funds were used for his benefit without proper approval (T 165.38-41), whereas Rajil gave evidence that he did not appreciate at the time there was an obligation on directors not to use company money for their own benefit without the approval of the company but in any event he took no steps to obtain any approval for the company as Amit "knew what he was doing" (T 249.42-49). Amit Laundry submits that the basis on which Amit agreed to put Property A into the names of Rajil and Vinay was not an improper purpose because Amit's purpose was to have the title held for the benefit of the plaintiff company (T 287.12-14).
5. Senior Counsel for Rajil on the other hand seeks to distinguish Bloch, submitting that in this case (contrary to the findings in Bloch) there was no agreement between the purchasers that their respective interests would be determined by contributions not just to the purchase price but by what they contributed by way of repayment of the Westpac loan (T 301.34-42).

Determination on this issue

1. As a practical matter, it does not seem likely that there could have been any realistic expectation at the time the loan was entered into that the three sons would meet the mortgage repayments. None was in a financial position to do so. Amit and Rajil were working in the laundry business but not drawing any wages. Vinay was in the process of becoming qualified as a pharmacist. The expectation can only be taken to have been that the repayments would be made out of the revenue derived from the laundry business (which was at all relevant times the main source of revenue within the family).
2. In Calverley it was said (at 271) that "the fact that Miss Green was added as a purchaser and mortgagor to facilitate the arrangement of finance is equivocal in that it can be viewed as either an explanation of her acquisition of a beneficial interest in the property or as an explanation of her being but a trustee for Mr Calverley". There is nothing to support an inference in the present case that Rajil and Vinay were joint borrowers in order to facilitate the company (Amit Laundry) arranging finance. Indeed, it is difficult to see how two brothers with no previous credit history and no assets would have improved the ability of the company to acquire the property (had it in fact been the parties' intention that the property be acquired by the company as a business investment). In saying this, I accept that Rajil seems to have considered that it was possible that signing the facility might have been "an easy way to get a loan on the company" (see T 248.47) but I do not consider this explanation to be plausible in the circumstances. The more likely explanation for any requirement by the bank that Rajil and Vinay undertake obligations (and I do not accept that the evidence demonstrates this was a requirement of the bank as such) is that the loan was to be secured over the property they were thereby acquiring.
3. As to the proposition that Amit Laundry could not be taken to have intended that mortgage repayments be made by it for the personal benefit of two of its directors, to the detriment of the company, the fact is that none of the three sons (Amit, Rajil and Vinay) let alone the other directors (Abha and Sharmilla, whose involvement in decision making for the laundry business was at best limited) displayed in the witness box any real understanding as to the consequences of incorporation (other than in the general sense that it was believed, according to Amit, that it would confer tax benefits and protect assets) or as to the responsibility of the directors of a corporate entity to that entity and its shareholders. Significantly, Amit appears to have drawn no distinction between his personal property and that of the company (see T 68): Q: But in terms of repaying the loan you didn't expect to have to fund that out of your money, did you? A I'm confused. Like because I'm running the company so obviously I'm making the money so I would be paying the loan.
4. The course of conduct over the years - in which Amit Laundry obtained loan facilities and made loan repayments in connection with the acquisition of properties and/or a business by one or other of the sons (not just Property A but also the Redhead property and, it would seem on Vinay's evidence, the Newcastle pharmacy) - is such that I cannot accept the submission that an inference can be drawn from Amit Laundry's repayment of the Property A loan that it did so on the basis that it was the sole beneficial owner of this property.
5. In the absence of evidence raising what was referred to in Currie (at 692) as a "gloss on the presumed resulting trust", the repayments of the loan by Amit Laundry are to be disregarded in determining who is entitled to the beneficial trust in Property A at the time of purchase. They do not constitute direct financial contributions to the purchase price. Unlike the position in Bloch (at 398), it is not open on the facts of this case to find that there was any "consensus" between the relevant purchasers as to the respective contributions which the parties would make towards the acquisition of Property A as land unencumbered by mortgage. Rather, as adverted to above Amit seems to have thought that the payments would be coming out of the laundry profits (and, incorrectly, that this amounted to a contribution by him personally); and both Rajil and Vinay appear to have left it up to Amit (whether through Amit Laundry or otherwise) to look after the matter (at their father's instigation or otherwise).
6. Thus I find that the mortgage repayments were made by Amit Laundry in its own right but do not count as contributions to the purchase price for the purposes of the presumption of resulting trust.

Third issue: whether Westpac Loan taken out on behalf of Amit Laundry

1. The third issue posed above relates to the contention of Amit Laundry that the whole of the Westpac loan was in fact taken out on its behalf (see statement of claim at [7]).
2. Rajil submits that such a contention is unsustainable. He points out that Amit Laundry could (and had done in the past) borrow in its own right (as it did when the Vacant Land was acquired); that it held a bank account in its own name; and that there was no impediment to it entering into the loan facility itself had it wished to do so (T 315.26-29). I agree. On the balance of probabilities, I cannot be satisfied that it was the intention of the borrowing parties that the loan was to be taken out solely on behalf of Amit Laundry.
3. This third issue in essence restates the fundamental issue in this case. It was accepted that, as a matter of fact, the three sons were jointly liable in respect of the Westpac loan (defence at [6]). To establish that the Westpac loan was taken out "on behalf of" Amit Laundry thus goes to the question of the actual common intention of the joint borrowers. I address this below in considering whether the presumption of resulting trust is rebutted by an actual contrary intention (see from [275]ff). For the reasons there set out and the matters I have referred to in relation to the second issue above, I do not accept that it was the shared intention of the three sons that the loan taken out by them in their personal capacity was a loan on behalf of the company.

Conclusion as to whether there is a presumption of resulting trust

1. Accordingly, I find that Amit Laundry provided the deposit in its own right; that the mortgage repayments do not count as contributions to the purchase price for the purpose of giving rise to a presumption of resulting trust (because there was no Bloch "agreement"); and that the Westpac loan was not taken out on behalf of the company.
2. Therefore, subject to the application of any presumption of advancement or any finding that there was contrary evidence of the purchasers' actual intention at the relevant time sufficient to rebut the presumption of resulting trust, a presumption of resulting trust arises in favour of the purchasers in proportion to their unequal contributions to the purchase price: 9.08% in favour of Amit Laundry; 90.92% (apportioned as to one-third each) as between Amit, Rajil and Vinay.
3. Rajil suggested that a roughly 10% interest is de minimis for the purposes of the operation of the presumption of resulting trust. I was not referred to any authority concerning the application of the maxim de minimis non curat lex in the context of resulting trusts and the authorities of which I am aware have only given it limited scope. In Chau Ting Yung v Chau Ming Yung [2013] NSWSC 1089 at [22], Kunc J considered it unnecessary to resolve whether the plaintiff had in fact advanced an alleged $400 deposit towards a purchase price of $210,000. His Honour considered that amount de minimis in the circumstances but that conclusion must be understood in the context that his Honour was also of the "firm view" that the actual intention of the parties at the time of acquisition displaced any presumption of resulting trust. Another example is Singh v Singh [2004] NSWSC 109 at [23], where a preliminary deposit of $150 towards a purchase price of $92,500 was considered by Barrett J (as his Honour then was) to be de minimis.
4. In the present case, if the now rescinded contract of sale is any indication, a roughly 10% interest would be worth in the order of $132,000 and would render the parties co-owners in equity. In circumstances where Rajil proposes to sell Property A and a question arises as to what equitable entitlements Amit Laundry may have in respect of that property, application of the de minimis concept can hardly be appropriate.

Is there a presumption of advancement?

1. The first basis on which Rajil contends that a presumption of resulting trust is rebutted is its contention that the presumption of advancement arises. In respect of the deposit, this is said to be because the payment of the deposit by the company was at the direction of, and in accordance with the will of, Ramesh)(see written submissions at [28]; see also defence at [20]). Similarly, Rajil argues that (assuming the liability of the three sons under the Westpac loan is - as I have found - to be treated as a contribution towards the purchase price by them in equal shares) then the presumption of advancement applies in respect of Amit's liability under the Westpac loan, such that Amit is to be presumed to have undertaken such liability as a means of advancing the interests of his younger siblings (see T 306.16). In short, Rajil submits that both the deposit provided by Amit Laundry and any contribution otherwise made by Amit fall to be dealt with by reference to a presumption of advancement (T 316.22-24).

Legal principles

1. The presumption of advancement was described (at 589) by Gleeson CJ in Brown v Brown (1993) 31 NSWLR 582 in the following terms: ... There are exceptional cases … where equity assumes that the proper inference is the contrary of that giving rise to an implied or resulting trust of the kind earlier described. In such circumstances the assumption is not that a trust arises but, rather, that one party intended to benefit the other and that the latter was intended to have both beneficial and legal ownership of the property in question. That presumption, where it exists, is also rebuttable. …. In his Equity: a Course of Lectures, 2nd ed (1936) at 77-80, F W Maitland referred to the presumption of advancement as a subrule that qualifies the presumption of a resulting trust. Lord Eldon, in Murless v Franklin (1818) 1 Swans 13 at 17; 36 ER 278 at 280, referred to the general rule that on a purchase by one person in the name of another the nominee is a trustee for the purchaser, which is subject to an exception where the purchaser was under a species of natural obligation to provide for the nominee. In Napier v Perpetual Trustee (WA) (1980) 55 ALJR 1 at 3, Aickin J also spoke of the presumption of advancement as an exception to the primary presumption of a resulting trust.
2. The precise nature of the presumption has attracted some debate and it is often said that it is not a true presumption at all (see, for example, Anderson v McPherson [No 2] at [133]-[137] (Edelman J, referring to Martin v Martin (1959) 110 CLR 297; [1959] HCA 62 at 303; Calverley at 247; 256; 265; 267); see also Nelson v Nelson at 547 (Deane and Gummow JJ); W Swadling, "Explaining Resulting Trusts" (2008) 124 Law Quarterly Review 72 at 73; W Ashburner, Principles of Equity (Butterworths, 1902) at 148-9); J Glister, "Is There a Presumption of Advancement?" (2011) 33 Sydney Law Review 39).
3. One view (said to be "the dominant Australian approach") is that the presumption of advancement is merely "a description of facts where the presumption of resulting trust (or, more accurately, the presumption of a declaration of trust) does not arise" (Anderson v McPherson [No 2] at [134]-[135] (Edelman J)). Distinct from this "absence model" one might discern a "sub-rule approach" under which "[o]n proof of the basic fact (the relationship between the parties), the existence of the presumed fact (the intention to make a gift), is concluded in the absence of evidence to the contrary" (see J Glister, "Is There a Presumption of Advancement?" (2011) 33 Sydney Law Review 39 at 43).
4. For present purposes, however, two issues arise: first, whether, as a matter of fact, the "relationship" on which Rajil founds his invocation of the presumption of advancement existed and, as a matter of law, is capable of attracting the presumption of advancement; and second, if the foregoing matters are established, whether the presumption of advancement has been rebutted in respect of the deposit and the Westpac loan (or, more precisely, whether on the whole of the evidence it is more likely than not that the relevant contributions to the purchase price were intended at the relevant time by the contributors to be other than by way of advancement). As already noted, the onus on the first issue lies on Rajil; on the second, it lies on Amit Laundry.

First issue - whether a relationship capable of attracting the presumption of advancement has been established

1. Senior Counsel for Rajil accepts that the relationship asserted in the present case is "not as clean" as some of the other relationships of which the authorities speak (such as father and child or husband and wife) but submits that the present case is one of "elders to children, albeit through the vehicle of a family company" (T 300.31-34). Senior Counsel did not seek to argue that the plaintiff company stood in loco parentis as such; rather, it was submitted that the company was "the vehicle by which the family's interests [were] advanced" and that it was used by Ramesh and/or Amit, as the eldest son, to advance the interests of the family (T 307.10-16).
2. For Rajil, emphasis is placed on the presumption of advancement being one which attaches to "a relationship not a transaction" (T 316.31). It is submitted that the "focal point" was "the relationship between the family so far as Ramesh and Amit and the younger siblings was concerned" and "the role the company played and was used for in the context of that relationship" (T 316.40-45). It is submitted that, on the evidence, Amit respected the authority of Ramesh (at least outwardly), particularly in relation to expenditure to be made. Thus it is submitted that whoever (as between Ramesh and Amit) was actually "in charge", what occurred was consistent with Ramesh's wishes and was for the advancement of the family (T 317.8-28). Reference is made in this regard to Amit's acceptance as to the family tradition or custom of deference to the father (see, for example, T 35.46; T 38.12).
3. Counsel for Amit Laundry points out that the suggestion that the company was set up to look after the children is not consistent with the company's constitution (T 338.44-50). Further, it is contended that the characterisation of the relevant relationship as being a relationship between the elders and the children cannot be maintained in light of the fact that there is only a small age difference (two years) between Amit and Rajil (T 340.1-4).

The first issue - determination

1. There is of course no dispute as to the fact that Ramesh was the father of Amit, Vinay and Rajil; nor is it disputed that Amit was the eldest of the three sons. Rather, what is disputed is the relationship of Ramesh and Amit vis-à-vis the company and the role of the company in the context of this relationship, as well as the proposition that as a matter of fact Amit stood in loco parentis to his younger siblings, Vinay and Rajil.
2. This requires some consideration as to the circumstances in which the company was incorporated and how it was operated.
3. Ramesh says that the decision to incorporate was his decision but he does not point to anything to explain why he would have suddenly chosen to make such a decision. Rajil's evidence is also that it was Ramesh's decision to incorporate, based on no more than the announcement that Ramesh made to that effect on one occasion in 1996 (T 239.47-49) and (it would seem) his general perception that the primary decision maker in all things was Ramesh. However, he agreed that he would not know whether there had been discussions beforehand between Ramesh and Amit alone about forming a company (T 240.7-10).
4. Amit's evidence is to the effect that he spoke to his accountant and was informed of tax and other benefits if the business was incorporated (T 52.35-50), which he then discussed with family members. That evidence is plausible given that Amit was the main point of contact with both the accountant and the bank manager in relation to the loan for Property A (T 249.7-12, 22-33). It also makes sense that the suggestion that a company be established came from someone outside the family because neither Amit nor Ramesh evinced any real understanding of the separate legal persona of a corporate entity; nor was Ramesh able to articulate clearly the benefits he thought would flow from incorporation of an entity to conduct the business (just that there would be tax benefits).
5. Amit's evidence is to be preferred on this issue. Even taking account of the language difficulties, Ramesh did not appear to have any clear understanding of many key concepts of company or real property law. It is highly unlikely that many of the phrases appearing in his affidavit evidence were his own (see for instance the cross examination of T 205.29-34; T 212.21-22; T 213.16-19, 33-39; T 214.6-14), as opposed to being a construction placed by the translator on what was said by Ramesh in Hindi in the course of preparation of his affidavit. Ramesh did not deny the proposition that Amit had obtained advice in relation to incorporation and was the one to propose incorporation (T213.47-50) (or, for that matter, that Amit had been the one to propose the purchase of the Vacant Land - T 214.30-32).
6. The timing of incorporation (so shortly before the purchase of the Vacant Land) might perhaps have indicated a link between the two events but no one here suggested that this was the case. Whether or not there could be said to be any significance in the timing of the acquisition of the Vacant Land so soon after the incorporation of the company, I am not persuaded that the purpose of incorporation was for Amit Laundry to be the mere vehicle for advancement of the personal interests of the sons (and so to hold would disregard the separate legal persona of the company).
7. Therefore, although Amit caused and arranged for the company to make payments that facilitated the purchase by Rajil of the Redhead property and of the pharmacy business in Newcastle for Vinay, respectively, I am not persuaded that the relationship between the company and Rajil was such as to attract the presumption of advancement.
8. I do not accept the proposition that there was any relevant relationship between the company and the sons, nor do I accept that, if a company is used as a "vehicle" for the provision of financial assistance for others with whom the controlling mind of the company stands in a relationship of loco parentis, then in law that necessarily gives rise to a presumption of advancement.
9. The contribution to the purchase price, for the purpose of identifying the beneficial interests under a resulting trust, is not to be taken to have come from the person standing behind the company. It is true that equity looks to substance and not to form, but the submission does not, to my mind, properly deal with the fact that the company was and remains a separate legal entity.
10. As to the relationship between the family members themselves, clearly, the relationship of father and child (here, Ramesh vis-à-vis Rajil and Vinay) is an established relationship to which a presumption of advancement has traditionally applied. The difficulty in this regard is that Ramesh was not a contributor to the purchase price - hence the submissions going to the question of Ramesh's relationship to the company (i.e., that the company was the vehicle through which Ramesh advanced the interests of his sons). Turning then to the relationship between Amit and his younger brothers, the difficulty is whether the relationship of older sibling to younger sibling is capable of giving rise to a presumption of advancement.
11. I was not referred to any decision in which it was held that a relationship that a relationship of elder sibling and younger sibling stands alongside other established relationships attracting the presumption of advancement (such as father and child or mother and child). In McGregor v Nicol [2003] NSWSC 332, Davies AJ held (at [4]) that there is "no general principle of advancement as between siblings", his Honour there relying upon Noack v Noack [1959] VR 137 at 140 (where Dean J had said that "as the transaction was between sisters no presumption of benefit arose") and Calverley v Green at 250 (where Gibbs CJ said that "[t]he presumption [of advancement] should be held to be raised when the relationship between the parties is such that it is more probable than not that a beneficial interest was intended to be conferred, whether or not a purchaser owed the other a legal or moral duty of support").
12. It is argued in the present case that a relationship (and family situation) of the kind asserted by Rajil gives rise to the presumption of advancement because it is more probable than not that a beneficial interest was intended to be conferred on the younger siblings when the company made its direct financial contribution to the purchase of Property A in Rajil and Vinay's names (see T 316.47-50). Rajil emphasises that Amit was a "loving" elder brother, who was "never greedy" and "always" looking out for Rajil, endeavouring to fulfil his father's wishes as he understood them (T 248.26-29). This is consistent with Vinay's evidence as to the role of "elders" in the family to which I have already referred.
13. I am unable to accept that the relationship of siblings of itself necessarily gives rise to any presumption of advancement. However, I do accept that if, in a particular case, an older sibling (such as Amit) does in fact stand in loco parentis to his or her younger siblings, that may well give rise to a presumption of advancement. Such a relationship may well arise where, say, a parent has died or is otherwise incapacitated such that the older sibling assumes the parental role and responsibility for the welfare of his or her siblings. In that regard, while the evidence does support the conclusion that Amit was regarded by Vinay (and perhaps to a lesser extent by Rajil) as being an "elder" in the family structure, this was alongside his father whose role, according to Rajil was that of primary decision maker in the family (a role inconsistent with Amit occupying the parental role in place of his father). Ironically in that sense, Rajil's own evidence makes difficult a finding as to the presumption of advancement.
14. While in principle I accept that the role of an older brother in the family vis a vis his younger brothers could be such as to raise a presumption of advancement, in the present case, I am not persuaded that this was so in the present case.

Second issue - has any presumption of advancement been rebutted

1. If (contrary to the conclusion I have reached) one assumes that a presumption of advancement did arise on the facts of the present case out of the relationship between Amit and his younger brothers, then the issue arises as to whether any presumption of advancement has been rebutted in respect of the Westpac loan).
2. In Damberg v Damberg [2001] NSWCA 87, Heydon JA (as his Honour then was) said (at [45]): In general a person whose intention at an earlier time is in issue may give evidence of it, and the position is the same here, even though the weight of the evidence, coming as it does from an interested witness, must be scrutinised with care: Devoy v Devoy (1857) 3 Sim & Giff 403 at 406; [1857] ER 691; 65 ER 713 at 714 per Stuart V-C; Dumper v Dumper [1862] ER 641; (1862) 3 Giff 583 at 590; [1862] ER 641; 66 ER 540 at 543 per Stuart V-C; Davies v The National Trustees Executors and Agency Co of Australasia Ltd [1912] VLR 73; [1912] VLR 397 at 403; Drever v Drever [1936] ALR 446; and Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 at 304 per Dixon CJ, McTiernan, Fullagar and Windeyer JJ. It follows from the proposition that the rules for admissibility of evidence tendered to rebut the presumption are simply those of the general law that any modifications effected by the Evidence Act 1995 (Cth) are applicable.
3. The issue here is as to the intention of Amit in assuming joint liability under the Westpac loan. (Similarly, had I been persuaded that there was an appropriate relationship such as to give rise to the presumption of advancement in relation to the deposit, the question would be as to the intention of the company through its controlling mind(s) in providing the deposit. Senior Counsel for Rajil emphasised in regard to this latter issue the need to consider the "directing minds of the corporation", though acknowledging the "inevitable overlap" in this respect - see T 324.6-7. As I have already found, the controlling mind of Amit Laundry, at all relevant times, was Amit, even though Abha, Rajil, Sharmilla and Vinay were also directors (the last three only up until April 2006).)
4. Amit Laundry submits that because, as directors, Rajil and Vinay cannot receive an improper benefit without the consent and concurrence of the company by virtue of certain provisions of the Corporations Act 2001 (Cth), it should be inferred that the purchasers' intentions of putting Property A into their names was that the property would be held by them on trust for the company of which they were directors; namely, Amit Laundry (T 282.10-24). Pausing there, the understanding of the relevant directors as to their obligations as directors (and what that might mean as to the company's property dealings) was hardly such as to inspire confidence in the drawing of such an inference. None appears to have had any real concept of the corporate veil; Vinay accepted the proposition as to directors' duties when it was put to him in the witness box but had no dealings in relation to the company or the family business (just doing what was asked by the "elders"); and Rajil seems to have had no concept of directors' duties at the relevant time.

Determination

1. The evidence as to whether (an assumed) presumption of advancement in respect of which Amit laundry bears the burden of proof is rebutted is also relevant (as, to some extent, are also the submissions) in determining whether the presumption of resulting trust is rebutted, where the defendant bears the burden of proof, because both issues are concerned with actual intention. They are considered below (see from [275]ff).
2. For the reasons there stated, I am of the view that any presumption of advancement that has arisen (contrary to my conclusion on the first issue above) has been rebutted. There is sufficient evidence from which it can be inferred that Amit did not, in assuming liability under the Westpac loan, intend to make a gift. I find that the actual intention of Amit was not that his brothers should hold the legal title to Property A without any qualification as to Amit Laundry's right to use the property until such time as it could be relocated following the (at that stage still anticipated) development of the Vacant Land. Put another way, any intention to advance his brothers by way of absolute ownership of Property A is inconsistent with Amit's clear intention that Amit Laundry should have a continuing right of occupation of the laundry premises for an indefinite period.

Has the presumption of resulting trust been rebutted by evidence of a contrary actual intention?

1. Leaving aside the argument as to presumption of advancement (which presumption does not arise in my opinion in relation to the payment of the deposit by Amit Laundry and which does not arise but in any event has been rebutted in relation to the assumption of liability by Amit in respect of the Westpac loan), the question is whether the presumption of a resulting trust has been rebutted.

Principles

1. As already adverted to, the presumption of resulting trust may be rebutted by evidence demonstrating that the actual intention of the relevant purchaser(s) who contributed unequally to the purchase price (namely, here, the company in respect of the deposit and the three sons in respect of the joint borrowing) was that the persons in whose name legal title was vested (namely, Rajil and Vinay) would be entitled to the use and enjoyment of their legal title for their own benefit (Anderson v McPherson [No 2] at [155]; Calverley at 251(Gibbs CJ); 269 (Deane J)).
2. It has been said that the strength of the presumption of resulting trust will vary from case to case (see Jacobs' Law of Trusts at [12-12], relying on Fowkes v Pascoe at 352; Bennet v Bennet (1879) 10 Ch D 474 at 479-480). So, for example, it has been said that "the presumption is more easily rebutted in the case of a relative or close friend than it is if the property is vested in a complete stranger" (Wallington v Kokotovich Constructions Pty Ltd (1993) 11 ACSR 759 at 754; Young J, as his Honour then was, relying on Fowkes v Pascoe at 352-353).
3. In Black Uhlans, Campbell J noted (at [138]) that: The sort of conduct which could possibly be taken into account in this way could include who took occupation and control of the property, who made improvements to it and in what circumstances, who paid periodical outgoings on the property, who received any rent from the property, and who paid income tax on any rent received from the property. To the extent that any of these types of transaction occurred at a time which was not "so immediately thereafter as to constitute a part of the transaction", they could be taken into account only to the extent that they were admissions. [my emphasis]

Submissions

1. In oral submissions, Counsel for Amit Laundry submits: that there is no evidence suggesting that Amit Laundry meant to acquire the land for any reason other than to maintain and continue its business, and to expand its business on those premises (T 285.4-6) and relies upon the evidence from Amit that the company was intended to be the purchaser. Amit Laundry points in that regard to Amit's account of the discussions that he had with Rajil and Vinay in advance of the purchase of Property A (T 338.40-43).
2. It is submitted that Amit Laundry's position is consistent with Rajil's evidence of his father's role (at T 159.23-33 and T 234.24-29) and his evidence of Amit's considerable role in the family (referring by way of example to the evidence given at T 233.46-50; T 244.33, T 246.17-18; T 249.42-49; T 250.44-45; T 256.24-27); as well as Vinay's evidence concerning the periods of time Ramesh was not present in Sydney (T 164.16-19) and Amit's involvement in assisting him with the finances for acquiring the pharmacy (T 177.26-50 - T 178.0-17). Amit Laundry also refers to passages of Ramesh's own evidence in this regard (such as his evidence at T 190.45-48, T 206.41-49; T 207.40-42; T 214.16-17; T 222.33-39).
3. Amit Laundry points to the fact that Ramesh was never a signatory on the bank account for the business at any time (whether prior to or after incorporation) and that Ramesh accepted that, whenever there was a need Amit, as a signatory on the bank account, could withdraw funds for that need (T 202.27-28). It notes that Ramesh could not recall any occasion when he declined or refused to pay for something for which Amit had asked (T 203.5).
4. Rajil, however, argues that Amit Laundry's conduct over the entire period was fundamentally inconsistent with it having ownership of Property A (treating that conduct as in effect an admission against interest and as rebutting any presumption of resulting trust that is found to have arisen) (see T 335.31-38). Rajil points to the fact that he has lived at Property A rent-free since about 2003; that Amit Laundry has paid rent to Rajil from about 2007/2008 (written submissions at [27]); and that the signed loan application documents, deny the existence of any trust (Exhibit 1 and Exhibit B) and do not disclose that the loan account is held on trust (in respect of which declarations as to the accuracy of those documents were signed by each of the brothers). It is submitted that the actual intention of two of the relevant directing minds (Rajil and Vinay) was plain, namely, that they owned both the legal and beneficial title upon the acquisition of Property A.
5. In that regard, it is noted that Rajil was adamant in cross-examination as to his expectation that Property A was for him and for Vinay; and that Vinay's intention was to the effect that he trusted in his elders to look after his interests and went along with his father's wishes (those wishes being for his children to have properties in their own name, as his way of providing for his children - see T 210.27).
6. Rajil emphasises that what is clear from Ramesh's evidence is that he intended to provide for his family by the purchase of the respective properties (for Amit with the Granville Property and for Rajil and Vinay with Property A). He submits that the inconsistency between Ramesh's evidence and his affidavit evidence (to which I have referred earlier) is attributable to the fact that Ramesh was plainly frail, aging, and in some difficulty with the language without the benefit of the ability to discuss concepts in an exchange in Hindi.
7. While Vinay's understanding was that the laundry business was going to be able to operate from that premises and that it would save the laundry business paying rent to somebody else, Rajil emphasises that Vinay was very clear about the fact that it was a property for him (T 178-179). It is submitted that Vinay gave cogent uncontradicted evidence of his intention (that intention according with his father's intention). Rajil also points to Vinay's understanding (and acceptance) that Amit as eldest was to get the first property and to the effect that he, Vinay, had to wait his turn.
8. In response, Amit Laundry notes that, to the extent that Vinay gave evidence contrary to Amit concerning who had a beneficial interest in Property A, this was based on Vinay's understanding of his father's intention (T 178.45-50-T 179), and argues that evidence based on an assumption as to his father's intention (without actually witnessing any conversations where his intention was stated) is of limited probative value.
9. Amit Laundry says that, similarly, Rajil's evidence is of limited probative value, his understanding being predicated at various points of time not on having actually witnessed events but his understanding (or assumption) of his father's role within a family setting (referring by way of example to T 236.42-50; and T 256.34-35, where Rajil accepted that not claiming rent was because of "whatever" the arrangement was between Amit and his father).
10. Amit Laundry further says that both Rajil and Vinay's conduct subsequent to the purchase of Property A is inconsistent with the proposition that they had, and understood themselves to have, a beneficial interest in Property A equal to their prima facie legal interest. Specifically, Amit Laundry points to the following: that Vinay was willing to transfer his interest in Property A for $1; that Vinay did not know how he came to be a director of the company (T 165.16), had just signed the loan documentation and was not aware that he was borrowing a substantial sum of money (T 166.45-50); that Rajil allowed Amit to "handle" the account the subject of the loan (T 249.7-33; T 253.12); that Rajil failed to assert an entitlement to rent after the Property A loan was repaid (being 8 May 2001) and before he moved into the property in late 2003; and that Rajil accepted that the arrangement was "whatever the discussions with Amit and my father" were (T 256.29-35).
11. Amit Laundry argues that the payment of rent by it should not be seen as an admission of Rajil's ownership (pointing to the fact that the "rent" paid to Rajil by the company was calculated with reference to the rent Rajil was paying for his own business - T 259.50-260.9) but, rather, as Amit's willingness as a "loving" elder brother to assist Rajil during his financial difficulties (invoking Rajil's description of Amit at T 248.26-29).
12. As to the other matters to which Rajil points (such as the fact that Amit did not assert the company's ownership over Property A prior to going to his lawyers following his meeting with Mr Grgic; that the repayments for the Property A Loan were claimed as "rent" in the company's tax returns; that payments of "rent" were made to Rajil from 2006 and subsequently recorded as rent in the company's tax returns; and that Property A was never recorded as an asset of the company in the company's tax returns) Amit Laundry makes the following submissions.
13. First, Amit Laundry argues that there was no cause for it (through Amit) to assert ownership prior to the point in time that it did (when Amit caused the company to commence these proceedings). It is said that the multiple listing of Property A with Property B and the Vacant Land in 2013 was undertaken with Amit's knowledge and consent and points to his evidence was that this was carried out to test whether a price could be achieved by selling three properties in one line beyond the sum total of individual sales. It is submitted that the fact that Amit never told Rajil he did not have authority to sell Property A is consistent with Amit's understanding that Rajil also knew the company was entitled to Property A.
14. As to the contents of the tax returns and financial documents, it is submitted that these should be given limited weight because there is no evidence of the basis on which such (mis)descriptions were included in the accounts. Reference is made to Amit's evidence that he informed his accountant as to the arrangements about Property A (T 138.0-10). It is further said that the descriptions of "rent" do not appear "necessarily" to tally up with the amounts debited to the loan or match the description of payments as recorded in cheque butts by Amit (T 84.28-31).
15. Further, Amit Laundry submits that the direct evidence of the relevant parties' intentions and understandings is inherently of more probative value than indirect evidence of how things were characterised for accounting purposes.

Determination

1. As to the Westpac loan, I accept that it was the shared intention of the three borrowers: Amit, Rajil and Vinay (to the extent that Vinay gave it any independent consideration at all) that when Property A was acquired in the names of Rajil and Vinay the legal title would reside in them. Amit's intention, as the controlling mind of Amit Laundry for all practical purposes, was the same insofar as the provision of the deposit cheque was concerned. Such a conclusion is supported by the documentary evidence as to how the property was treated in the company records (as referred to earlier).
2. However, that is not enough to rebut the presumption of resulting trust. Rajil must establish, on the balance of probabilities, that there was an intention on the part of the respective contributors that he (Rajil) and Vinay were to take the beneficial interest in the property. That leads to the question as to what inference is to be drawn from the shared intention of the contributors that Rajil and Vinay were to become registered proprietors of Property A.
3. In Muschinski v Dodds (1985) 160 CLR 58; [1985] HCA 78 it was found as a fact that the shared intention of the parties was that registration would have a specific effect (namely, that it would render Mrs Muschinski and Mr Dodds beneficial co-owners), which intention rebutted any presumption of resulting trust. In Muschinski v Dodds, the findings of the primary judge and the Court of Appeal were set out by Gibbs CJ relevantly as follows (at 589): … it was the intention of [Mrs Muschinski] that [Mr Dodds] should have a beneficial one-half interest in the land in return for his assurances that he would assist the appellant to set up a craft business in the old cottage and that he would have a house built on the land and pay for it out of any moneys which might come to him from his divorce settlement and his earnings. A further reason for the appellant's intention to give [Mr Dodds] a beneficial interest in the land was that she hoped that if she did so it would improve the quality of their relationship. The learned primary judge further held that there was no evidence that [Mrs Muschinski's] intention was to confer on [Mr Dodds] an interest conditional on the fulfilment of the purposes which the parties had in mind. … The Court of Appeal agreed that the appellant intended to give the respondent a one-half beneficial interest in the land and, to use the words of Hope J.A., that "this intention was based on the assurances which [the respondent] gave to her and not upon the fulfilment of those assurances". Their Honours held that the evidence pointed to an intention on the part of [Mrs Muschinski] to give [Mr Dodds] a beneficial interest which was immediate and unconditional. They accordingly agreed that the presumption of a resulting trust was rebutted and further held that the events that occurred after the property had been acquired did not give rise to a constructive trust in favour of [Mrs Muschinski]. [my emphasis]
4. Gibbs CJ said the following in relation to these concurrent findings (at 591): … the findings in the Supreme Court, so far as they go, are correct. It was, in my opinion, right to conclude that [Mrs Muschinski] intended that [Mr Dodds] should have a beneficial one-half share in the property. The conversations to which I am about to refer must be viewed against the background provided by the relationship between the parties, and in the light of the fact that the parties were co-contractors for the property, each undertaking the obligation to pay the purchase price. Both intended to borrow jointly from the bank, if that became necessary, to finance the purchase. When [Mrs Muschinski] first saw the Picton property, she wanted to put it in her own name because she expected to supply all the money. [Mr Dodds], however, told her that he would assist her financially and by his own physical work on the property, but only if his name was "on the title". [Mrs Muschinksi] in her evidence frequently spoke about "putting [the respondent's] name on the title". Mr. Bennett, who appeared for [Mrs Muschinski], contended that this revealed an intention to give [Mr Dodds] only a legal, and not an equitable, interest in the land. That argument attaches altogether too much significance to language used by lay persons who were unlikely to have appreciated the distinction between legal and beneficial interests, and the tenor of the discussions shows that the parties were concerned with the substance of the matter - with the beneficial interest and not the form of the legal title. The parties had frequent discussions about the matter; [Mrs Muschinski] had doubts about putting the land in both names, but [Mr Dodds] regarded it as unfair that he should have no interest in the property when he intended to contribute, roughly equally, to the total cost of obtaining the asset in its final form. [my emphasis]
5. A similar view was taken by other members of the Court. Mason J noted (at 598-599) that the common intention of the parties was that Mr Dodds would acquire an "immediate and unconditional legal and beneficial one-half interest in the property" and that there was therefore "no scope" for a resulting trust (my emphasis). Brennan J stated (at 603) that there was "no reason" in the circumstances to infer that the taking of title in both names was understood by Mrs Muschinski "as relating merely to legal title" (as distinct from a legal title with which the beneficial interest would be at home). Deane J considered (at 611-612) that the evidence "leads inexorably to the conclusion" that it was Mrs Muschinski and Mr Dodds' shared intention that "from the time of purchase, each should have a full one-half beneficial, as well as legal interest"; it was not the intention of either party that Mr Dodds' beneficial interest "should be acquired by stages" - it was intended by both to be "immediate and unconditional" (my emphasis).
6. In Muschinski v Dodds, therefore, it was found as a matter of fact that the relevant contributor (namely, Mrs Muschinski) intended, by the act of registration, to confer upon another (namely, Mr Dodds) an immediate and unconditional beneficial interest in the acquired property.
7. The present case is different. None of the contributors to the purchase price appears to have understood the significance of incorporation, still less of registration on the title to property. In a sense, that is also true of Muschinski v Dodds: the parties there were concerned "with the substance of the matter - with the beneficial interest and not the form of title" (at 591). However, it was found as a fact that the parties intended by registration to confer an immediate, unconditional interest upon Mr Dodds; or, as Deane J put it (at 611): … Mrs. Muschinski's intention was that her own and Mr. Dodds' interest or, to use her words, "status" in the whole venture should be equal; it should be a "joint venture", a "partnership"
8. That is not so in the present case. I accept that all contributors to the acquisition intended that Rajil and Vinay would become the registered proprietors of Property A. However, I am not satisfied that all contributors intended that Rajil and Vinay would then be free to do what they wanted with the property. That is not to say that, in order to rebut the presumption, it is necessary for Rajil to establish that the contributors intended to confer on Rajil and Vinay indefeasible title as such; it is merely to say that I do not accept, on the balance of probabilities, that registration was intended by the contributors, in their own way, to confer on Rajil and Vinay an immediate or unconditional beneficial interest.
9. To test that proposition one need only pose the following counterfactual: what would have been Amit's reaction, had it been put to Amit (in his own right or as the controlling mind of Amit Laundry) that as from the date of completion of the purchase of Property A, Rajil and Vinay were to be free to assert ownership of the property to the exclusion of any right of occupation on Amit Laundry's part? I have no doubt that this would have been unacceptable to Amit and that it was not the intention of Amit (or Ramesh, whose intention is only of relevance insofar as both Rajil and Vinay have made very clear that he was the primary decision maker and that they acceded, as a matter of culture and tradition, to his wishes in family and business matters). Had such a proposition been articulated at the time, it is not plausible that Amit (and Amit Laundry) would have proceeded with the arrangement to buy the property in the younger sons' names at least without protection for the laundry business operation.
10. It is true that Amit Laundry could have acquired the property in its own name, had it wished to do so. However, at the centre of the reasoning behind the acquisition, in the minds of all the contributors (as can be inferred by their words and conduct at the time of acquisition), were the business interests of Amit Laundry. A plausible inference is that registration in the name of Rajil and Vinay was incidental to this main purpose, in the sense that it was (at the time of acquisition at least) symbolic of equality between the sons (even if there was in the minds of the sons, to various degrees, an expectation that Property A would remain in Rajil and Vinay's name once Amit Laundry had ceased to use it for its own business purposes). To describe registration as symbolic is not to gainsay its significance to the contributors at the time. But in the circumstances, I cannot accept that any of the contributors had the intention that upon registration it would have been open to Rajil and Vinay to exclude all others from Property A (which is to say, none contemplated that the beneficial interest would reside wholly and unconditionally in Rajil and Vinay).
11. In relation to Amit, his evidence was that it was his suggestion that the property be put into Rajil and Vinay's names. He also intended that Amit Laundry would be able to remain in occupation of the property until such time as it was able to develop Vacant Land for purpose of relocating the laundry business there. The intention of Rajil at the relevant time was that the property be acquired in his and Vinay's names but for the purpose of enabling the laundry operations to relocate to those premises. The intention of Vinay was simply to do whatever accorded with his father's (and possibly Amit's, as the eldest brother) wishes.
12. As to the intention of Amit Laundry in providing the deposit, the relevant intention must be of its controlling mind. That was at all times Amit. His intention, as I have found, was that the property be acquired in his brothers' names but the purpose of the acquisition was for the property to be available for the laundry business (to expand the business and save on rent).
13. There is a divergence in the evidence as to whether the intended period of use of the Property A as the laundry was to be a temporary solution or an indefinite solution (in light of the problems that had been encountered with the development of the Vacant Land).
14. Amit Laundry submits that Rajil's evidence (that the company moving into Property A was only a temporary solution pending development of the Vacant Land - T 247.18-20 - is improbable given what Amit (and it may be inferred other members of the family) knew in light of Exhibit H. However, it is not clear that Rajil knew of the import of Exhibit H at the relevant time. Amit Laundry also submits that the costs involved in moving the business render it unlikely that it was ever intended that the move into Property A would only be for a short temporary period (before moving costs were incurred again to move into Property A). However, the steps taken in relation to the proposal to re-develop the Vacant Land for the purposes of use as a laundry (which continued after Property A was acquired) are not consistent with there being a concern as to the cost of moving the laundry to that property in due course.
15. I have concluded that it is likely that the family members, so far as they turned their minds to the question, were expecting that the Vacant Land would be developed in due course and hence that the occupation by the laundry business of Property A would not be a permanent one. However, the intent was that until the Vacant Land was developed (so that the laundry business could be relocated there) the laundry business was to be occupied from the ground floor of Property A.
16. I find that the intention of the contributors was that Amit Laundry was to be able to operate the laundry business out of the premises at least until such time as the Vacant Land was developed and it could relocate to those premises. Whether or not the expectation was that this would take place within a relatively short period of time, such that the occupation of Property A would only be a "temporary solution", it can be said with confidence that its occupation was to be for an undefined (and hence in that sense indefinite) period.
17. I am not satisfied on the evidence that Amit Laundry (through its controlling mind, Amit) or Amit himself intended to disclaim any beneficial interest in respect of the property towards the acquisition of which Amit Laundry and Amit (through the borrowing liability he assumed) had advanced funds.
18. Accepting that none of the relevant persons properly understood the legal significance of their actions, I have concluded that at the time of acquisition the interest intended to be conferred on Rajil and Vinay (by registration on the title) was one that was conditional on Amit Laundry having certain beneficial entitlements vis-à-vis Property A. Those entitlements were not precisely defined (and, in the circumstances, that is hardly surprising for the reasons already given). I doubt that the contributors, at the time of acquisition, could have articulated in any precise sense the nature of each contributor's intended entitlement to Property A. On the contrary, the evidence suggests that, at the time of acquisition, and in view of the family arrangements, they would have been puzzled by the question. However, it is clear that everyone understood and intended that Amit Laundry was to be able to operate its business from the premises then being acquired and it was the shared understanding and intention that the mortgage repayments were to be made out of the funds generated from the operation of the laundry business from those premises (at least until such time as the laundry could be relocated to the Vacant Land, which was dependent on its re-development).
19. Even if it be accepted that Rajil and Vinay (in assuming liability under the mortgage) expected that registration would confer on them immediate, unconditional beneficial ownership of Property A (which I do not consider to be the case), that was certainly not the intention of Amit Laundry (in paying the deposit) or Amit (in assuming liability under the mortgage).
20. Although I was not taken to it, there is authority to the effect that a presumption of resulting trust may be rebutted partially or conditionally (see Re Kerrigan; Napier v Public Trustee (WA) (1980) 332 ALR 153; Jobson v Beckingham (1983) 9 Fam LR 169 at 170). (An illustration is provided by Dullow v Dullow (1985) 3 NSWLR 531.)
21. However, this was not argued before me. Had such an issue been likely to have been determinative I would have sought further submissions from the parties. It was not necessary to do so. In Muschinski v Dodds, the presumption of resulting trust was rebutted by evidence that the transferee, Mr Dodds, was intended to acquire by registration an "immediate and unconditional" beneficial interest in the property by virtue of registration (see 593 (Gibbs CJ); 598 (Mason J); 603 (Brennan J); 612 (Deane J); 624 (Dawson J)). It is that intention that is missing in the present case.
22. I am not persuaded that registration was intended to confer an unconditional beneficial interest upon Rajil and Vinay. For the foregoing reasons, the fact of registration, though certainly material, cannot be decisive in assessing the evidence of the contributors' intentions at the time of acquisition. The conclusion that the contributors' shared intention (drawn from the evidence as a whole) at the time of the acquisition was that any interest vested in Rajil and Vinay was to be subject to and conditioned upon Amit Laundry's own business concerns means that I cannot find positively on the balance of probabilities that Amit/Amit Laundry intended to confer upon Rajil and Vinay an immediate and unconditional beneficial interest in Property A. Therefore, Rajil has not discharged his onus of proving that it was more likely than not that he (Rajil) and Vinay were intended by the contributors to be the immediate and unconditional beneficial owners of Property A.
23. That, of course, causes a practical difficulty in the present case if, as has transpired, the Vacant Land cannot feasibly be redeveloped for the purposes intended or if it would prove impractical for such a development to be undertaken. It also potentially raises issues as to whether there was any understanding or implied obligation on Amit Laundry's part to do what it could to facilitate the prompt re-development of the Vacant Land. However, those issues have not been canvassed in the proceedings and they fall away in circumstances where I have found that Amit Laundry is an equitable co-owner of Property A as a consequence of the application of a presumption of resulting trust.
24. Pausing there, even if I had been of the view that Rajil's ownership at law of Property A was not qualified by Amit Laundry's rights in equity, the fact remains that Amit Laundry has been in possession of the laundry premises for some considerable time. If not pursuant to its status as a co-owner in equity, then its occupation must have been as a tenant at will. While tenancies at will are terminable ordinarily on one month's notice (and assuming that the laundry premises, due to the size of the premises, do not fall under the provisions of the retail tenancies legislation - an issue not canvassed in the proceedings), the giving of a mere one month's notice to quit in the present case strikes me as problematic to say the least. It seems to me that Rajil would have been vulnerable to a claim by Amit Laundry that the notice of termination was not valid and/or for relief against forfeiture in that Amit Laundry was entitled (having regard to the arrangements contemplated or agreed at the time Property A was purchased) at least to a reasonable period of notice to enable it either to complete the development of the Vacant Land for the purposes of relocating thereto or to locate suitable laundry premises elsewhere for that purpose. Hence the precipitate conduct of Rajil in entering into a contract for sale of Property A under which he promised to transfer the land with vacant possession (without first having put in place an agreement on Amit Laundry's part to relocate from the premises) seems ill-advised, to say the least. However, it is not necessary to consider this aspect of the matter further at this stage.

Conclusion

1. In summary, for the above reasons I have concluded as follows.
2. First, that the alternative claims based on an express or implied trust fail.
3. Second, as to the claim based on a resulting trust, I have found that a presumption of resulting trust did arise such that (in the absence of any non-rebutted presumption of advancement or a contrary actual intention on the part of Amit Laundry (as to the deposit) or shared on the part of the sons (as to the Westpac Loan)), Property A is held by Rajil as to 9.08% on resulting trust for Amit Laundry and as to the balance as to one-third on resulting trust for Amit (Vinay having already transferred his interest in Property A to Rajil).
4. I am not persuaded that the necessary relationship to establish a presumption of advancement has arisen but, in any event, any such presumption of advancement has been rebutted - since I am not persuaded on the balance of probabilities that Amit's actual intention was that Rajil and Vinay hold the beneficial interest in Property A absolutely (i.e., without any qualification as to the entitlement of Amit Laundry to use the property until such time as the laundry could be relocated to the Vacant Land) and, in relation to the deposit, it is Amit's intention that is to be imputed to Amit Laundry since he has been its controlling mind throughout.
5. I am not satisfied on the balance of probabilities that the presumption of a resulting trust has been rebutted by the actual intention of the parties. Shortly put, in circumstances where there have been unequal contributions to the purchase of Property A and (at the very least) it can comfortably be concluded that Amit/Amit Laundry did not intend by their contributions to the purchase price or by the fact that Rajil and Vinay became registered on the title to the property to confer on Rajil and Vinay an immediate and unconditional beneficial interest in that property, the presumption of a resulting trust is not rebutted and it operates such that both Amit and Amit Laundry can rely upon the presumed declaration of trust in their favour in respect of their proportionate contributions to the purchase price.
6. Accordingly, the appropriate relief is a declaration that Rajil holds the property on resulting trust as to 9.08% for Amit Laundry and as to one-third of the balance for Amit. Rajil's beneficial interest in Property A is thus two-thirds of 90.92% (roughly 60.61%). Orders should be made for the rectification of the register of land titles maintained by the Registrar-General for that purpose.
7. As to costs, Amit Laundry has been successful in establishing that title to the property is held on resulting trust for it but only as to a 9.08% interest in the land. However, in practical terms it (as through it, has Amit, though he is not a party to the proceedings) has had a substantial measure of success in that it has been determined that Rajil is not in a position to force it to vacate the premises at this stage and cannot sell with vacant possession. In those circumstances I propose to reserve the question of costs and to direct that written submissions on costs be served with the intent that that issue be dealt with on the papers.

Orders

1. I make the following orders: 1. Declare that the defendant holds the property identified in schedule A (and referred to in these orders as Property A) on a resulting trust as to 9.08% for the plaintiff and as to one-third of the balance for the defendant's brother, Amit Jain. 2. Order that title to Property A be rectified on the register of land titles maintained by the Registrar-General to record that Property A is held by Rajil Jain, Amit Jain and Amit Laundry Pty Limited, as tenants in common in the following shares: Rajil Jain as to 60.61%, Amit Jain as to 30.31% and Amit Laundry Pty Limited as to 9.08%. 3. Direct that a copy of these orders, once entered be lodged, with the Office of the Registrar-General at Land and Property Information for the purpose of rectification of the register in accordance with order 2 above. 4. Reserve the question of costs. 5. Direct the parties to serve brief written submissions (no more than 3 pages) in relation to costs within 14 days with the intent that the issue of costs be dealt with on the papers.

Amendments 07 November 2017 - Amendment to heading at [250] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 November 2017