Atilgan v Atilgan [1999] NSWSC 324 | Case summary

JUDGMENT Introduction 1 This is a very sad case about a family of Turkish immigrants, the Atilgan family. The plaintiffs are Ibrahim and Elife Atilgan ('Mr and Mrs Atilgan'), their two daughters Muzeyyen (their second child) and Meziyet (their third child), and the Estate of their deceased daughter Mukates (their fourth child). Mr Atilgan is about 69 years old, and Mrs Atilgan is about 63. The defendants are their two sons Mahmut (their eldest child who is about 40) and Mehmet (their youngest child), and Mahmut's wife Ayfer. 2 The family has been deeply split since about 1990. Until they met in court, Mehmet had not seen his parents since they commenced these proceedings in 1994. His parents had not seen Mehmet's children, born in the intervening period. The intensity of their emotions was plain on the faces and in the voices of all members of the family, as they progressed through the witness box. The root cause of their conflict was the chain of events leading to the present litigation, as I shall explain. 3 If ever there were a case for settlement by less confrontational means than legal proceedings, this was it, as the hearing obviously aggravated emotions which were already raw. But several attempts to settle the case before the hearing, by mediation and negotiation, have failed, no doubt in spite of the efforts and persuasive powers of counsel and their instructing solicitors. At the beginning of the third day of the hearing, I spoke directly to the parties in court, through an interpreter. I said, amongst other things: 'This is a very sad case about a family which has fallen apart. My judgment, if I have to give it, will not help to bring the family together. It is very likely that it will make matters worse. I, therefore, want both sides to think again very seriously about whether some agreement can be reached which will avoid further costs and give everyone a chance to become a proper family again. It is never too late to settle a case such as this.' 4 Nevertheless the case continued for a total of seven days. In my judgment Mr and Mrs Atilgan are partially successful in relation to one of the two properties in which they claim an interest and I shall hear further submissions as to costs. I do not pretend that this outcome, which results from the application of the law to the facts as I have found them, will do anything to resolve the personal conflicts within the Atilgan family, let alone bring them together again. History of litigation 5 The proceedings were initially brought by a summons filed on 1 June 1994. The sole plaintiffs were Mr and Mrs Atilgan, and the sole defendants were Mahmut and Ayfer. The summons sought declarations that a house and land at 8 Hutchinson Street, Auburn ('Hutchinson Street') and a home unit at 1/53 Harrow Road, Auburn ('Harrow Road'), were held on trust for Mr and Mrs Atilgan, and consequential relief. Title to the Hutchinson Street and Harrow Road properties is registered in the names of Mahmut and Ayfer. 6 The proceedings were eventually fixed for hearing in December 1997 but that fixture was vacated. On 10 August 1998 Windeyer J directed that the issues be defined by pleadings, and on 8 September 1998 a statement of claim was filed on behalf of Mr and Mrs Atilgan. Then at a further directions hearing on 28 September 1998 Windeyer J expressed the opinion that, having regard to the agreements alleged in the statement of claim and the orders sought against the defendants, all Mr and Mrs Atilgan's children should be joined either as plaintiffs or defendants. He directed that an amended statement of claim be filed and served. Consequently an amended statement of claim was filed on 7 October 1998, joining the two daughters and the Estate of the third daughter as plaintiffs, and the second son as a defendant. 7 In their amended statement of claim the plaintiffs say that part of the funds used for the purchase of the Hutchinson Street and Harrow Road properties was provided from a common pool of money accumulated from contributions by all family members. Therefore, say the plaintiffs, those two properties belong in equity to all family members in proportion to their contributions, or that Mr and Mrs Atilgan are the equitable owners of them. They seek declaratory relief to recognise their equitable rights and consequential orders for the transfer or sale of the two properties. The defendants deny that the plaintiffs made any financial contribution to the acquisition of the two properties and assert that they are the sole beneficial as well as legal owners. 8 The dispute between the parties turns on some hotly contested issues of fact, rather than on the applicable legal principles. I have found it difficult to resolve the factual issues, because of the limited scope of the evidence before me. The evidence comprises affidavits by each of the seven parties, together with oral evidence by each of them, and very limited documentary evidence (comprising principally notices of income tax assessment for Mahmut and Ayfer, and a few documents concerning their bank loans). Except in the case of Mahmut (most of the time) and Mehmet, the affidavit and oral evidence by the parties was given with the aid of an interpreter. 9 At various times I was concerned that the cross-examiner used Australian property concepts which may not have translated well into Turkish, and the witnesses may have had in mind Turkish concepts for which there may have been no direct Australian equivalent. On the third day of the hearing I expressed my concern to counsel in this way: 'When we use expressions about 'ownership' we give that concept a quite precise technical meaning. This is so, even when we use language which we regard as non-technical, such as (to name some of the expressions I have heard counsel put to witnesses): 'property in the name of', 'owned', 'belong to', 'interest in', 'benefit', 'right to live in', even 'gave her money to'. We have precise concepts in mind when we use those expressions, and the reason we have precise concepts in mind is that we are victims of our training and our narrow Australian legal culture. We should not assume that even an Australian-born lay person has those technical concepts in mind when asked questions of the kind which have been put to witnesses in this case. People who are born and raised in a non-English speaking country like Turkey, where, as far as I know, there is no concept such as the 'English trust' or 'equitable proprietary interest' will not appreciate the technical elements of the questions which they are asked. The Court's task is to listen to the evidence … without making assumptions about the witnesses' understanding of concepts upon which we impose technical meanings.' I have found that to be a difficult process because of a combination of cultural differences and the uncertainties created by translation. 10 An affidavit of the plaintiff's solicitor seeks to explain the absence of documentary evidence to support the plaintiff's case. He was told by the Department of Society Security and the Australian Taxation Office in September 1997 that they had not retained records at that stage for the period from the 1970s to 1990, the crucial period in this case. That evidence does not explain the absence of bank records from the plaintiff's evidence, nor the absence of any corroborating affidavits or oral testimony by relevant witnesses, such as Mr Sami Sakman, the bank manager who according to Mr and Mrs Atilgan gave the family some advice about buying property, or Mr Nejdet Sayin, a real estate agent who according to them was a witness to a conversation in which, they say, Mahmut promised to transfer Harrow Road to his mother. I mention the absence of this evidence not for the purpose of drawing an adverse inference pursuant to Jones v Dunkel (1959) 101 CLR 298. As I shall explain, I have decided to reject the evidence of Mr and Mrs Atilgan on the relevant matters because of its own implausibility and internal inconsistencies. My point, rather, is to underline the difficulties with which the Court is faced when assessing evidence presented through interpreters by parties whose concepts of property may be affected by cultural differences, when there is no external corroboration whatsoever. 11 I shall proceed by setting out my findings on the facts generally, and then describe the established facts and allegations with respect to financial contributions to the acquisition of the two properties. I shall then make some observations about the credibility of the witnesses, in order then to make some findings about the financial contributions of the parties. Having dealt with these factual matters, I shall then apply the law and set out my conclusions. The facts generally 12 Mr and Mrs Atilgan arrived in Australia as immigrants in February 1970, with their children. At that time Mahmut was about 12, Muzeyyen was about 9, Meziyet was 7, Mukates was 2 and Mehmet was 1 year old. Mr Atilgan had been a carpenter in his village in Turkey. Though he had some carpentry qualifications, he was unable to get work as a carpenter in Sydney, and so took employment at a factory which he describes as a 'metal factory' at Regents Park, where he worked for 6½ years to March 1976. Mrs Atilgan obtained a job as a process worker at an Arnotts biscuits factory in April 1970, and continued to work until 1976. Neither Mr nor Mrs Atilgan spoke English, and that is still the case. 13 Mahmut left school in 1972, when he was about 14 years of age. He worked as a process worker at Lidcombe, and then as a shift worker with ARC Engineering and also had a part-time job at a bed factory. Mr Atilgan returned to Turkey for three months in 1973, and at that time he purchased two properties in Turkey. Mr Atilgan says that the purchase price of the properties was 228,000 Turkish lira, and that the properties are subject to a conservation order which prevents them from being renovated. Consequently, he says, their value as at 13 March 1996 was no more than A$20,000. 14 In March 1976 Mr and Mrs Atilgan returned to Turkey with their family. There is a suggestion in the evidence that they initially intended to return only for a holiday, but in fact they stayed for nearly five years. Mr Atilgan bought a whitegoods business and his son worked for him there, receiving some payment but not a commercial wage. 15 Mahmut was conscripted into the Turkish military forces from 1978 to 1980, receiving some financial support from his family during that time. He married Ayfer in 1980. Muzeyyen also married in a religious ceremony in 1980. 16 The Atilgan family returned to Australia in 1981-82. Mahmut returned in January 1981, and Mr and Mrs Atilgan and the other children returned in July 1981. Ayfer arrived in Australia in February 1982. Muzeyyen came to Australia either with the family or at some time in 1982. Although she had married, her husband remained in Germany, where he was working. 17 The family moved into a rented house at 21 Board Street, Auburn in 1982. In mid-1982 the family living at 21 Board Street comprised Mr and Mrs Atilgan, Mahmut and Ayfer, Muzeyyen and her daughter (born in April 1982), Meziyet, Mukates and Mehmet. The family lived together until early 1985, when they moved to Hutchinson Street, but there were several changes to the composition of the family. Muzeyyen and her daughter moved out of the family home in April 1984 to live with Muzeyyen's husband, who had arrived in Australia from Germany. Mahmut's son was born in 1983. Mukates became very ill in 1984, suffering from terminal encephalitis. She was hospitalised from time to time thereafter, and eventually moved into a nursing home, and did not return to the family home. 18 After his return to Australia, Mahmut took employment in various positions, for ANI Engineering, Acrow Engineering, Mr Plastic, State Rail and the Urban Transport Authority, over the period from 1981 to 1992. He also had part-time employment for a while, delivering pizzas for Pepsico. Ayfer was also in full-time employment, taking two months off on the respective occasions of the birth of her son in 1983 and her daughter in 1986, and three months vacation in Turkey in 1989. 19 Mr Atilgan did not work at any time after his return to Australia in 1981. He says he developed high blood pressure and rheumatism, and has received social service benefits. Mrs Atilgan has not worked since her return to Australia, and has also received social service benefits. 20 Muzeyyen commenced work as a process worker at the Prima Tissue Factory in Rydalmere soon after her return to Australia, and continued in full-time employment, at least until she left the family home in 1984 to join her husband. Meziyet also worked at the Prima Tissue Factory from her return to Australia in 1981, and was generally in full-time employment at all relevant times, though she was absent from work for some time when she injured her hand at work. Mukates also worked for a short time until she became ill. 21 Mehmet had a part-time job as a waiter for about a year in 1987, while in year 11 at school. He completed his Higher School Certificate in 1989 and then undertook tertiary education at Meadowbank TAFE. He remained living with his parents at Hutchinson Street until 1991, when he married and went to Turkey, returning in 1992. He and his wife stayed with his parents for about three months and then moved out. 22 Whatever may have been their intentions about the ownership of property, it is evident that the members of the Atilgan family had discussions from time to time while living in Board Street on the subject of buying a home. Eventually Mahmut and Ayfer entered into a contract to buy Hutchinson Street in December 1984, completion taking place early in 1985, and the family moved into Hutchinson Street. The purchase price was $76,000 with additional expenses including stamp duty in the sum of about $5,000, making a total sum of about $81,000. $40,000 was borrowed from the Telopea branch of the Commonwealth Bank of Australia. An additional $5,000 was borrowed by Mahmut from his solicitor, and the remaining $36,000 was paid in cash. At the time of the move to Hutchinson Street, the family comprised Mr and Mrs Atilgan, Mahmut, Ayfer and their son, Meziyet, Mukates and Mehmet. 23 In August 1986 Meziyet married and left the Hutchinson Street home. Then sometime in 1987 Mukates' illness forced her to move into a nursing home, and she died on 11 February 1988. 24 In 1987 the family discussed buying another property as an investment. Mr and Mrs Atilgan say that Mahmut promised to buy a property for his mother, and that part of the purchase money came from an interest bearing deposit of $15,000 in Mrs Atilgan's name. Mahmut denies all of this, and says that the property was purchased from his wife's and his savings, with no contribution from other family members. I shall return to this dispute later. Whatever be the source of the funds, the fact is that the unit at 1/53 Harrow Road, Auburn was purchased in November 1987. The purchase price was $62,500, with legal fees and stamp duty of approximately $2,500, making a total of $65,000. $31,000 was borrowed from St George Building Society, and $3,000 was borrowed by Mahmut from a friend. The remaining $31,000 was paid in cash. 25 Harrow Road was purchased in the names of Mahmut, Ayfer and Mehmet. It appears that Mahmut agreed to a request by his parents to make his brother Mehmet, then a student not earning income, a part-owner of the unit, the three owners taking the legal title as tenants in common in equal shares. Mehmet did not contribute financially to the purchase nor the mortgage instalments paid to St George Building Society. 26 The mortgage over Hutchinson Street was repaid by instalments, and was discharged in November 1988. An additional investment property was purchased, at 5/29 Gibbons Street, Auburn. It was bought in the names of Mahmut, Ayfer, Mr and Mrs Atilgan, as tenants in common. The evidence does not indicate the exact purchase money, but it was in the vicinity of $120,000 and most of the purchase money was borrowed. 27 In 1989 Mr and Mrs Atilgan, Ayfer and her two children went to Turkey for a three month holiday. During that time Mrs Atilgan purchased a house in Turkey for 68,000,000 Turkish lira. It appears that the relationship between Ayfer and Mr and Mrs Atilgan was not entirely a happy one during the holiday. Mahmut says he sent money to Ayfer to pay for holiday expenses because his father would not give her any of the money which Mahmut had previously supplied. 28 Shortly after their return to Australia, Mahmut and Ayfer decided to move from Hutchinson Street to Harrow Road with their children. Prior to that time, Harrow Road had been tenanted. Mahmut says their purpose in doing so was to avoid friction with his parents and to establish an independent household for themselves and their children. Clearly a degree of tension had developed between them and Mr and Mrs Atilgan. 29 Shortly before or just after the move to Harrow Road, Mahmut was diagnosed as having cancer. It became necessary for him to have tests and undergo chemotherapy. 30 Mr and Mrs Atilgan became anxious about their future security. They may have developed this anxiety when Mahmut and his family moved to Harrow Road, because by that time Mrs Atilgan in particular was well aware that neither Harrow Road nor Hutchinson Street was registered in her husband's and her names. She had been anxious about this matter for some time, a fact which explains why the Gibbons Street property was acquired in the name of Mr and Mrs Atilgan as well as Mahmut and Ayfer. Whatever feeling of insecurity Mrs Atilgan had before her son was diagnosed with cancer can only have been increased by that event. 31 There is conflicting evidence as to exactly what occurred next, and when. In her affidavit of 30 September 1994 Mrs Atilgan said that in 1990 after Mahmut and his family had moved into Harrow Road, she said to him 'if you die, your wife will put me out in the street'. She did not identify the occasion upon which she made this statement. In his affidavit of 4 October 1995 Mahmut said that he was visited by his parents at Royal Prince Alfred Hospital, when he was undergoing therapy for cancer. He said that one of his parents said to him 'you don't know what might happen in the future. Please sign these documents which transfer your properties to us. You don't know what you wife will do to us if you died'. 32 In his affidavit Mahmut said he refused to sign the documents and said to his parents 'this brings shame on you and our family. This is the first time I have heard of parents trying to snatch property from a child before he is even dead. You will never get these properties even if I die. If I die, they belong to my wife and children.' According to Mahmut, similar conversations occurred on more than one occasion. 33 In their oral evidence Mr and Mrs Atilgan both denied that either of them had said any such thing to their son. However, the similarity between Mrs Atilgan's account of a conversation in which she expressed concern about what Ayfer might do if Mahmut died, and Mahmut's own account of the conversation in the hospital, persuades me that during 1990 Mrs Atilgan expressed a concern to her son as to what Ayfer might do if he died. I think it is more likely than not that the concern was expressed after Mahmut had been diagnosed with cancer. 34 Observing Mrs Atilgan in the witness box, I formed the strong opinion that she was very anxious about her future and her lack of property in Australia. It was also clear that there is real animosity between her and Ayfer. Her demeanour in the witness box tended to render plausible Mahmut's account of the conversation in the hospital. In his evidence Mahmut frequently returned to this event, which he clearly regarded as a turning point in his life, an event which deeply upset him and caused him to treat his parents with contempt at all times thereafter. Assessing the reactions of the witnesses as well as their affidavit and oral evidence, my opinion is that Mahmut's account of the conversation and the context in which it occurred is accurate and the denials of his account by Mr and Mrs Atilgan are false. 35 Some time in 1993 Mahmut approached his brother Mehmet, saying that he wished to buy out Mehmet's interest in Harrow Road, for $17,000. Mehmet told his parents that an offer had been made and they advised him to take it. He then accepted the offer and transferred his interest in the property to Mahmut and Ayfer for that amount. 36 Mahmut's illness led him to decide that he could no longer retain the Gibbons Street investment property. According to his evidence, the tenants' rent was not covering outgoings on the property. He therefore decided to sell, but needed the consent of his parents to do so. He spoke to his mother, telling her that he was ill and could not afford the repayments. She objected to the sale, asserting that his true motive was to remove her name and his father's name from the title. A few weeks later Mahmut spoke to his mother again, in the presence of Nejdet Sayin, a real estate agent. There is a dispute about what was said, but I prefer Mahmut's as the more plausible account. On Mahmut's version, both he and Sayin said, in effect, that the property had to be sold and there was no other option. It is common ground that Mrs Atilgan eventually agreed to the sale, tearfully and reluctantly. Mrs Atilgan asserts that she did so only on the condition that her son undertook to transfer the Harrow Road unit into her and her husband's names. Mahmut denies ever giving such an undertaking. It is implausible that he would have done so, given that he was living in the unit with his family and intended to continue to live separately from his parents, and so I reject Mrs Atilgan's evidence on that matter. 37 It was necessary for Mahmut to take some time off work for his cancer therapy, but he was able to return to work for a while in 1992/93 before eventually ceasing work in 1993. He subsequently applied for and obtained social security benefits. Ayfer has continued to work. 38 After Mahmut agreed to buy Mehmet's share in Harrow Road, he had a conversation with his father about future living arrangements. He alleges that his father told him that he and Mrs Atilgan would be returning to Turkey, and that Mahmut could have the Hutchinson Road property in 12 months. Mr and Mrs Atilgan deny that any such thing was said. On balance, it is likely that there was a conversation in which Mr Atilgan, more or less in resignation, indicated that he may return to Turkey, but it is unlikely that he made any firm promise or categorical statement of intention to return to Turkey within 12 months, or that he had actually decided to do so. I reach this conclusion partly because by 1993, when the conversation is alleged to have occurred, Mr and Mrs Atilgan were at loggerheads with Mahmut and Ayfer, the parents asserting that they were entitled to the properties and Mahmut saying that they had lost their claim to his respect by their conduct when he was in hospital. Additionally, Mahmut thought it necessary and appropriate to instruct his solicitors to issue a termination notice to his parents, a step which would have been unlikely if they had indicated a firm intention to leave. 39 Evidently Mahmut's solicitors wrote to Mr and Mrs Atilgan on 13 May 1993, though that letter is not in evidence. Mr and Mrs Atilgan's solicitors replied by letter of 20 May 1993, asserting that their clients had 'an equitable interest in the property [Hutchinson Street] and a contractual right to remain in occupation of the property', and consequently that they would not be vacating the property. The letter also asserted an equitable interest in a strata title property, presumably Harrow Road. Notwithstanding that letter, Mahmut and Ayfer issued a termination notice dated 21 June 1993, requiring Mr and Mrs Atilgan to give vacant possession of Hutchinson Street on 30 June 1994. Mr and Mrs Atilgan commenced the present proceedings by summons filed 1 June 1994. Financial arrangements 40 The evidence is that Mr and Mrs Atilgan own some property in Turkey. There are two properties that were purchased by Mr Atilgan in 1973, and a property was purchased by Mrs Atilgan in 1989. There may be others. Mahmut's evidence is that those properties produce income which has been retained for his parents in Turkey. However, the evidence is that Mr and Mrs Atilgan do not have any substantial assets in Australia. They have a bank account, and although their evidence is not clear, it appears that it was originally with the Commonwealth Bank at Lidcombe and was transferred at some point in the 1980s to the Commonwealth Bank at Auburn. Their social security benefits are paid into that account. It appears that they live frugally. Mr Atilgan does not drive and throughout the financial period which is relevant to these proceedings, from 1981 to 1990, it appears that he was usually at home. 41 The documentary evidence indicates that in December 1984 Mahmut had three accounts with the Commonwealth Bank at Lidcombe, though there were negligible amounts in two of them. Mahmut's evidence is that he also maintained bank accounts with the Commonwealth Bank at Auburn (which was presumably closer to home than the Lidcombe branch after the move to Hutchinson Street) and also at the Westpac Bank at Lidcombe. He says that he maintained several accounts in order to obtain a good savings record with more than one bank with a view to purchasing a house. Mahmut's evidence is that he had no assets and only a small amount of money when he returned to Australia in 1981. He has not said that he acquired any windfall assets during the ensuing decade, and his evidence implies that he did not. Therefore the only assets which he could have accumulated during that period are assets acquired out of the sources of income which were available to him and his wife. 42 The documentary evidence includes notices of income tax assessments for Mahmut and Ayfer for most of the financial years from 1981 to 1990, and for 1992 and 1993 in the case of Mahmut. Ayfer gave oral evidence to the effect that Mahmut always told the Australian Taxation Office exactly how much he was earning. When it was put to Mahmut that he could not have paid off the Hutchinson Street mortgage in three years and saved up the amount he claimed to have saved for Harrow Road, without financial help from his parents and sisters, he said that the evidence he had given should prove the matter. In my opinion it is reasonable to infer, and I do infer, that their taxable incomes for the years 1981-1990 were not greatly less than the actual income of each of them from all sources in those years. 43 Mr and Mrs Atilgan saved money during their residence in Australia from 1970 to 1976, depositing their savings into a joint account in their names. However, they say that when they returned to Australia in 1981, they gave their pension monies to their son, believing that he deposited the money into an account in his name at the Commonwealth Bank at Lidcombe or at the ANZ Bank at Auburn. According to Mr Atilgan, Mukates did some casual work during the period 1981 to 1984 and gave her money to Mahmut, and after she became ill she received a pension which was deposited into her account at the Commonwealth Bank at Auburn, and she signed withdrawal slips to enable Mahmut to withdraw that money. Muzeyyen says that she handed Mahmut her unopened pay packet every week, in response to his demand that she do so, and Meziyet says that she gave her sealed pay packets to her father, who she usually saw give the pay packet to Mahmut. Mr Atilgan says that Mehmet took up casual employment after 1984 and that his earnings also contributed. He says that they all gave their income to Mahmut because he was the eldest and because he could speak English, with the intention that the money would be saved to buy a house in which the family could live, which would be in the name of Mr and Mrs Atilgan. 44 Mahmut denies that any money was given to him by any of the plaintiffs to deposit in a savings account to save up for a house. He denies that his brother and sisters gave him any such money, saying instead that they gave money to their father. In his affidavit of 4 October 1995 he said that the only monies ever deposited into his bank accounts came from the earnings of his wife and himself, and he denied that his parents gave him any money, except for small amounts for purchases which he made on their behalf. However, in his oral evidence he said that his parents paid half of the household expenses and outgoings in Board Street and Hutchinson Street when they were living in those places together. 45 Mr and Mrs Atilgan say that after they moved to Hutchinson Street their pension cheques were paid directly into their account at the Commonwealth Bank at Auburn, but they signed a withdrawal slip which allowed their son to take out the same amount every month, and as far as they were aware, Mahmut deposited the money into the Commonwealth Bank at Lidcombe to pay off the mortgage. Mahmut denies that any such payments were received from his parents. 46 It is agreed that the purchase price for Hutchinson Street was $76,000, with additional expenses of about $5,000, making a total of $81,000. $40,000 was borrowed from the Commonwealth Bank. Accepting (as I do) Mahmut's evidence that he borrowed $5,000 from his solicitor, it follows that $36,000 was paid in cash as deposit and balance of purchase monies in December 1984/early 1985. 47 Though there are minor discrepancies between the figures given by Mr and Mrs Atilgan and Mahmut for the purchase price of Harrow Road, I accept Mahmut's evidence that the total purchase price was $62,500 plus $2,500 for expenses, making a total of $65,000. I also accept Mahmut's evidence that he borrowed $3,000 by personal loan, and $31,000 from St George Building Society, leaving a balance of $31,000 provided as cash purchase money. 48 An interest bearing deposit of $15,000 was saved by members of the family to take Mukates back to Turkey. Mahmut says that the money was saved by him and Ayfer, without any significant contribution from the others, but Mr and Mrs Atilgan dispute this. The interest bearing deposit was ultimately in Mrs Atilgan's name, but there is a dispute as to whether it was always in her name or was transferred into her name by Mahmut. It appears that the money was saved to take Mukates back to Turkey, or possibly to provide further medical treatment for her. When it became evident that she would be too ill to return to Turkey and that there was no hope of further successful medical treatment, it was planned, evidently by Mrs Atilgan and Mahmut, that the money would be used to take Mukates' body to Turkey after she died. Mrs Atilgan originally said, in her affidavit of 30 September 1994, that she received advice after Mukates died that the $15,000 should be invested in real estate. She says that accordingly, the $15,000 was used as part of the purchase money for Harrow Road. This would have been impossible, since Harrow Road was purchased in late 1987 and Mukates did not die until 11 February 1988. Mrs Atilgan purported to correct her affidavit evidence in her oral evidence, saying that the advice to invest in property was given in 1987. Mahmut accepts that advice to invest in property was received from Mr Sami Sakman, who was then employed by the Auburn branch of Westpac Bank. However, he says that the money was not withdrawn from the interest bearing deposit until after Mukates died, and he believes that the money was used by his parents to visit Turkey in 1989. 49 Mahmut says that Mr and Mrs Atilgan went to Turkey in 1985 and 1989. In his affidavit of 4 October 1995 he said that he gave his father money to take to Turkey on each of those occasions. Annexed to his affidavit were two Commonwealth Bank of Australia transaction slips for deposits to cover the cost of two overseas drafts payable to Mr Atilgan in Turkey. One transaction slip is dated 17 June 1985 in the sum of AUD3,000. The other transaction slip is dated 16 April 1985 in the sum of AUD17,000. Though an initial appears above the word 'Teller' on the form, this transaction slip (unlike the other slip) does not bear any bank stamp. In his affidavit Mahmut said that he also gave his father money in 1989. Mr Atilgan denies that $17,000 was sent to him in Turkey, and says that the $3,000 was sent to him in 1989 rather than 1985. He says that the $3,000 came from pooled family money and was used primarily for holiday expenses for his son's wife and children in 1989. In his oral evidence Mahmut said that the $17,000 was not in fact sent in 1985, but was sent in 1989, and that it was used by his parents to buy property in Turkey, rather than for holiday expenses. 50 It will be seen from this summary of the evidence on financial contributions that almost every significant assertion by one side is disputed by the other. The disagreements are of a kind which could easily be resolved if documentary evidence were available, but by and large it is not. In order to reach conclusions about financial contributions, I must therefore make findings as to the credit of the witnesses who gave the conflicting accounts. The witnesses - credit 51 I propose to make some remarks about the affidavit and oral evidence of Mr and Mrs Atilgan, Muzeyyen and Meziyet, Mahmut, Ayfer and Mehmet. However, I shall state my conclusions in advance. I found the evidence of all four plaintiffs to be generally unreliable. I would not believe any disputed assertion by any of the four plaintiffs unless it was independently corroborated, and there is no direct corroboration for most of their evidence. I found Mehmet to be an honest witness but by his own admission, he was not much interested in, or involved in, the family discussions on financial matters, and so his evidence related more to impressions than to facts, so far as the family finances (as opposed to his own financial contribution) were concerned. I found that Mahmut's evidence was truthful to a degree, but could not be relied upon on certain crucial issues. Generally, he began by portraying himself as the generous son, but during the course of the two and a half days of his cross-examination, this changed gradually but decisively, and in the latter part of the cross-examination, he was reluctant to admit to any expenditure on the family's behalf. Ayfer's evidence generally supported Mahmut's, and was therefore subject to the same deficiencies. In the end, some of their evidence is inconsistent with external reality in ways which I shall point out. Mr Atilgan 52 Mr Atilgan's affidavit of 30 September 1994 contains some specific assertions which are inconsistent with the truth as it emerged from his son's affidavit of 4 October 1995 and the annexures to that affidavit. He endeavoured to correct his evidence in the witness box, but his oral evidence was unconvincing. All in all, he impressed me as a person whose recollection was stimulated principally by self-interest, and he was unable to give any satisfactory explanation for the serious inconsistencies in his evidence. 53 Thus, in his affidavit of 30 September 1994 he asserted that he went to the Commonwealth Bank at Lidcombe to obtain finance for the purchase of Hutchinson Street. Mahmut's evidence shows that the loan was arranged from the Telopea branch of the Commonwealth Bank. In his oral testimony, Mr Atilgan originally denied that he had gone to the Commonwealth Bank to obtain finance for Hutchinson Street. Then when confronted with his affidavit he said that he did go to the bank, but only to have money transferred from his joint account with Mrs Atilgan to Mahmut's account, so that Mahmut could then use the money to purchase Hutchinson Street. This suggests that in 1984 there was a significant accumulation of funds in Mr and Mrs Atilgan's joint account, and yet his affidavit evidence was that he started to give Mahmut their money in 1981, for him to deposit in the account in his own name with the Commonwealth Bank at Lidcombe. 54 In his affidavit of 30 September 1994 he said that the purchase of Hutchinson Street was financed by a loan of $40,000 from the Commonwealth Bank, but in his oral testimony he claimed not to know where the finance came from. He asserted that the family members contributed money towards the purchase of Hutchinson Street, and that this money was paid into a joint account. However he said in oral evidence that he could not recall the bank at which the account was held, and when asked why he did not obtain this information from Mahmut he had no adequate explanation. The evidence implies that he had abdicated his role as head of the household, that he had been 'gelded' (as counsel for the defendants put it), and yet he had conducted the family finances with Mrs Atilgan, apparently successfully, before they went to Turkey in 1976. His assertions in oral evidence are simply implausible. 55 In his affidavit of 30 September 1994 he asserted that, after completion of the purchase of Hutchinson Street, he and his wife paid their pension cheques directly into their joint Commonwealth Bank account at Auburn. However, in oral testimony he initially claimed that they gave their pension money directly to Mahmut, and later claimed (on the following day of cross-examination) that they paid their pension money into the joint account as stated in the affidavit. Mr Atilgan gave confusing and inconsistent evidence about Mehmet's casual employment. Mehmet's own evidence is that he worked at a restaurant in 1987 or possibly 1986. His father's affidavit evidence is that Mehmet began working at a restaurant in 1984 and 1985, but in oral testimony he claimed that Mehmet began working at a printing firm. The suggestion that Mehmet earned a sufficient amount of money to make a significant contribution to a pooled savings fund is implausible and was effectively demolished by Mehmet's evidence. Early in his oral evidence Mr Atilgan said that Meziyet gave her wages directly to Mahmut. However, when confronted with Meziyet's affidavit evidence to the effect that she gave her wages to her father, Mr Atilgan changed his evidence. 56 As counsel for the defendants submitted, if one puts together all of these criticisms of Mr Atilgan's affidavit evidence, all of the substantial affidavit evidence about financial contributions is destroyed. Mr Atilgan's attempted corrections in oral evidence were unconvincing and seemed to be motivated by self-interest and the desire to render his evidence consistent with the evidence of others. My impression of his demeanour in the witness box was that Mr Atilgan cast himself in the role of advocate rather than a witness seeking to recollect and present the factual truth. Perhaps his misapprehension of the role of a witness is due to cultural differences or linguistic difficulty, but such an explanation does not make his evidence any more credible. Mrs Atilgan 57 It is clear from her demeanour in the witness box that Mrs Atilgan has been deeply hurt by the rift with her son and daughter-in-law, and is greatly worried by the insecurity of her financial circumstances. The combination of these issues and painful recollections of her daughter's death made her a very emotional witness. I am sorry to say my assessment is that her emotions got the better of her judgment, and led her to give evidence which was sometimes incoherent, and plainly self-contradictory on important issues. 58 In her affidavit of 30 September 1994 she said that she believed she and her husband owned Hutchinson Street jointly, and that she owned Harrow Road herself. In oral testimony she seemed to claim that she thought she and her husband owned both properties jointly, or at least that he had interest in Harrow Road as well as Hutchinson Street. Her affidavit and oral evidence also indicates that she was aware, at least eventually, that neither she nor her husband was a registered proprietor on the title to Hutchinson Street or Harrow Road. It was important to her that she be named as a registered proprietor of the Gibbons Street property and according to her evidence (which I have already rejected on this point), she extracted an undertaking from her son to transfer Harrow Road to her and Mr Atilgan as a condition of her consent to the sale of Gibbons Street. These latter parts of her evidence appear to me to be incompatible with the belief that at all relevant times she and her husband owned Hutchinson Street and the belief that they owned Harrow Road. 59 According to her affidavit of 30 September 1994, she said to Mahmut 'if you die, your wife will put me out in the street.' In oral testimony she denies that she said this. For reasons I have already given, I reject her oral testimony on this point. In my opinion, based on her demeanour in the witness box and the way she denied the suggestion that she had said these words, her reason for the denial is that she believed that she would be seen in a poor light if she admitted to such a statement. 60 In her affidavit she claimed that the family had saved $15,000 in an interest bearing deposit to take Mukates back to Turkey, but that after Mukates' death she received advice suggesting that the money be used to purchase property. In her oral testimony she said she had made a mistake and that she must have received the advice before Mukates' death. This was an obvious attempt to adjust her evidence to the fact that Mukates died in February 1988, some months after the purchase of Harrow Road. The original account in the affidavit is plausible, in the sense that she may well have decided after her daughter's death that there was not much point sending the body back to Turkey. It is less plausible that during the last few months of her daughter's life, she would have taken the family fund saved up for Mukates and invested all of it in the Harrow Road purchase. 61 Perhaps the most astounding part of her evidence was that, when she was pressed about the sequence of the purchase of Harrow Road and Mukates' death, she said that she could not recall the date or even the month in which Mukates died. 62 In her affidavit of 30 September 1994 she said that Mr Sami Sakman of Westpac had approved the loan for the purchase of Harrow Road. In fact, annexures to Mahmut's affidavit of 4 October 1995 show that the lender was St George Building Society. In her affidavit she said that she went with her son to the Westpac Berala branch where they saw a female employee. There her son told her that the unit could not be registered in her name because the bank would not make a loan in her name as she was not working. I find that this alleged visit to the bank did not occur, since the lender was St George Building Society rather than Westpac. Counsel for the plaintiff pointed out that the signs and uniforms in both Westpac and St George branches contain the colour red, and a person with no understanding of English could easily become confused between the two. I reject that submission. 63 As with her husband's evidence, not much of significance remains in Mrs Atilgan's evidence when these parts of it are rejected. Muzeyyen 64 It was plain that Muzeyyen had decided that she would support her parents in their court case against her brother and sister-in-law. That determination to support her parents, come what may, typified her approach in the witness box and, I infer, her approach to the preparation of her affidavit. I find her affidavit evidence to be fundamentally implausible. When she returned to Australia in 1982 and began to work, she was already married and had a daughter. She must have been thinking about establishing a financial foundation for her married life and her own family. Yet she says that from the day she started work in Australia, she gave her unopened pay packet to Mahmut every week. She says she never opened it and that she did not know how much was in it. 65 Additionally, her evidence is internally inconsistent on some matters of detail. For example, she says that Mahmut said to her sisters and her 'we are going to buy a house for mum', but that she understood her wages were to be saved to purchase a house for her father as well as her mother. Similarly she says that Mahmut told her and other members of the family 'we're going to buy the flat in my mother's name', but on other occasions that he would transfer the unit to his mother's and father's names. She said in her affidavit that Meziyet gave her unopened pay packet to Mahmut, but she endeavoured to resile from that statement in her oral testimony, presumably having read Meziyet's subsequent affidavit. In oral testimony Muzeyyen said that Meziyet gave her unopened pay packet to her father rather than her brother, and purported to explain the difference between her sister's practice and her own by saying that her sister would sometimes come home late, after her brother had gone shopping, and would hand over the pay packet to her father so that her father could pass it on to her brother. I find this change of evidence unconvincing. 66 There is one other problem with Muzeyyen's evidence. In her affidavit she said that she left the family home in about 1984 when she married. In fact, Muzeyyen was married in a religious ceremony in Turkey in 1980, as she admitted in oral evidence. But she said that she had a civil marriage ceremony in Australia in 1984, in order to ensure that her marriage would be recognised here. Counsel for the defendants submitted that in view of her earlier religious marriage, it was misleading for her to say in her affidavit, without further explanation, that she married in April 1984. He submitted that the earlier religious marriage was not mentioned, because it would render implausible her claim that she handed over her pay packets to her brother. I agree with these submissions. In fact no other members of the family would have been misled, because they understood Muzeyyen's position, and the Court was not misled because the statement in the affidavit was explained and corrected in oral evidence. Nevertheless, the statement that she married in April 1984 was inherently misleading and should have been clarified in the affidavit, and in its context suggested an intention to strengthen illegitimately her evidence that she handed over pay packets to her brother. 67 Muzeyyen's loyalty to her parents was no doubt intensified by the bitterness of the dispute between her parents and her brother and sister-in-law. Perhaps she has allowed the dispute to distort her evidence, with the result that in my opinion, her evidence should not be relied upon where it is contradicted by other evidence. Meziyet 68 My general remarks about Muzeyyen apply with equal force to Meziyet's evidence. In her affidavit she gave an account of conversations amongst members of the family while they were living at Board Street, Lidcombe, about buying a house. She said 'I do not remember any conversations regarding in whose name the house would be placed'. However in oral testimony she claimed that it was agreed that Hutchinson Street would be put into the names of her parents. In her oral evidence she initially said that she knew that her mother's name was not on the title for Harrow Road. Later she appeared to claim that Harrow Road was held in the names of both her parents and Mahmut and his wife. 69 Initially she claimed that her current residence, acquired in about 1997, was the first property she has owned. Later in her oral evidence she conceded that she had owned property before with her previous husband. Her evidence about the ownership of property was generally very confused, and it is possible that this confusion is connected with cultural and linguistic difficulties. Like Muzeyyen, Meziyet has had very little formal education, and even now she appears to speak only a little English. On the other hand, she struck me as an intelligent witness, confident and forthright in her oral evidence, and well able to handle the questions put to her in cross-examination. I was therefore left unsure whether her unsatisfactory evidence on matters to do with the ownership of property was referrable to confusion on her part, or an excess of zeal to defend her parents' interests. I am inclined to the latter explanation, and in any event I believe that her evidence should not be relied upon in respect of any contested points. Mahmut 70 There are two important inconsistencies between Mahmut's affidavit evidence and his oral evidence. The first relates to his father's contributions to household and food expenses. In his affidavit of 4 October 1995 he said that his father gave him only small amounts of cash as a contribution to household and food expenses. However, in oral evidence he said that his father contributed half of the money needed to pay household expenses, though he insisted that there was no contribution towards a deposit for the house or home unit. Secondly, his affidavit of 4 October 1995 stated that $17,000 was sent to his father in Turkey on 16 April 1985, and a transaction slip showing that deposit was annexed to the affidavit. In his oral evidence he said that, notwithstanding the date on the transaction slip, he was not sure whether he sent the $17,000 to his father in Turkey in 1985 or 1989, and seemed disposed to prefer 1989. 71 Counsel for the plaintiffs submitted that these changes to Mahmut's evidence were referrable to a broader pattern. Early in his evidence, Mahmut minimised his father's contribution to household expenses and made out that he, Mahmut, had provided for the family in a relatively generous way. However, counsel's cross-examination about expenditure was persistent and detailed. It must have become obvious to Mahmut that the purpose of the cross-examination was to show that expenditure on household expenses, when added to the other payments which Mahmut claimed to have made from his own and Ayfer's savings alone, far exceeded their joint income. And so Mahmut became more and more reluctant to give estimates of expenditure as the cross-examination progressed, and when pressed to do so, his estimates of expenditure were more and more abstemious. Parallel with that process, Mahmut gradually acknowledged that his father's contributions to household expenses played a greater role than he had indicated in his affidavit. Initially he accepted that he and his father had made equal contributions to certain specific kinds of bills, and in the end he accepted that his father's contribution to all household expenses including rent was approximately equal to his own. Of course, this would reduce the amount of household expenditure which would need to be covered by his and Ayfer's incomes, thereby increasing the plausibility of his claim that all deposits and mortgage repayments were funded by him and Ayfer alone. 72 Similarly, if the $17,000 was sent by him to his father in 1985, he would have to explain where the money came from for him to make that payment while (according to his evidence) repaying the mortgage on Hutchinson Street and saving up the deposit for Harrow Road. So he suggested, instead, that he may have sent the $17,000 to his father in Turkey in 1989, notwithstanding the date on the transaction slip and his earlier affidavit evidence. 73 Having reviewed the transcript, I find the account by the plaintiffs' counsel of Mahmut's evidence to be plausible. The shifts from his affidavit to his oral evidence were each in the direction of reducing the amount of expenditure borne by his and Ayfer's incomes during the crucial periods from 1982 to 1984 (when the deposit for Hutchinson Street was being saved) and 1985 to 1987 (during which time the Hutchinson Street mortgage was substantially reduced and the deposit for Harrow Road was saved). One can see a progression in the evidence, as well as an increasing testiness in the witness. For example, initially he claimed that he paid for all expenses relating to the car, but later he changed his position and claimed that his father actually contributed 50% of the expenditure for upkeep of the car. Initially he claimed that he paid for the television and refrigerator himself, but later he claimed that his father contributed 50% of the cost. His estimate for the family's weekly expenditure on fruit and vegetables in the period 1982 to 1984 was between $30 and $50 per week, but his estimate for expenditure on fruit and vegetables in the period 1985 to 1989 had fallen to $15 per week. He said the cost of car maintenance went down from the former to the latter period, although the car was getting older. 74 All in all, I find that Mahmut's evidence was generally more reliable than the evidence of the plaintiffs, and is generally to be preferred to their evidence. Though the documentary evidence in this case is limited, Mahmut at least annexed some documents to his first affidavit, including a document from the Commonwealth Bank which indicated that he had caused a search to be made of his bank accounts at the time of the loan for Hutchinson Street. His accounts of specific conversations such as the conversation with his mother and Nejdet Sayin in 1990, and the conversation with his mother and father in hospital in 1990, appear to be more plausible than the accounts of those conversations by his mother. 75 Nevertheless, I find his oral evidence is affected by inconsistencies, specifically as regards the level of his father's financial contribution to household expenses and as to payment of the $17,000 to his father in Turkey. Ayfer 76 I did not detect any flaws or inconsistencies in Ayfer's evidence, and I found her to be satisfactory as a witness. Clearly, however, she was concerned to minimise her expenditure on herself and her children, so as to preserve as far as possible the plausibility of the assertion made by her and her husband that they funded the deposits for the two properties and repayment of the mortgages by themselves, without help from other members of the family. Mehmet 77 Mehmet's attitude to the proceedings was that he did not want to claim any interest, or to be represented, or to be otherwise involved in the proceedings. He was nevertheless required to give evidence and did so willingly. But because of his overall approach to the case, he was less of a protagonist than the other witnesses had been, and therefore I found his evidence to be more reliable. I accept his evidence that he worked as a waiter in a restaurant for only a couple of days a week while in year 11 at high school, and that he gave the money to his father on his father's insistence. However, while I do not doubt the truthfulness of the witness, I cannot attach much weight to his affidavit evidence that when the family moved into Hutchinson Street it was 'quite clear to me and to all members of the family' that the house had been bought by Mahmut and Ayfer; nor to his oral evidence that 'everyone knew' that the house was his brother's and sister-in-law's. He admitted that if his parents and older brothers and sisters were talking about such things as buying property and the banks in which money was held, during the period from 1982 to 1987, he would be unlikely to be interested. As he said, 'I didn't want to know'. Findings on financial contributions 78 If it were necessary for my findings to rest solely on an evaluation of the affidavit and oral evidence of the parties, it is plain from what I have said that on all contested issues I would find against the plaintiffs. In fact, I do find against the plaintiffs, subject to an overriding consideration which I shall mention. 79 Specifically, I reject the claims by Mr and Mrs Atilgan that they handed over their pension monies to Mahmut or gave him a withdrawal slip which enabled him to withdraw all those monies. I reject the claim by all the plaintiffs that the three daughters made available to Mahmut, either directly or through their father, their entire weekly earnings. On that point, I find it more likely that the father had access to his daughters' earnings, and that he would have retained part of the weekly earnings as a contribution to household expenses, returning the remainder to the daughter. 80 I find that Mehmet did not work or make any contribution prior to 1986 or 1987, and at that time he worked only for about a year, in a casual position as a waiter for a few days each week. I find that he gave his earnings to his father, but it may be that he received some of the money back as pocket money. 81 I find that Mahmut and his father shared household expenses, including rent in Board Street, on an equal basis. However, it may well have been that part of the father's 50% contribution to expenses actually came from the earnings of his daughters and (to a limited degree) Mehmet. The remainder of the father's and mother's pensions was accumulated in their savings account with the Commonwealth Bank. 82 On balance I prefer Mahmut's account in oral testimony to the statement in his affidavit of 4 October 1995 that his father paid only small amounts towards household expenses. It would be surprising if the father did not use his pension money to pay at least a significant share of these expenses. Mahmut moved from maintaining that his father paid only a 'small amount' to acknowledging that his father and he contributed equally to most expenses, after counsel painstakingly took him through the items of household expenditure, one by one. He conceded that his father would have paid 50% of the electricity bill, and then conceded that much the same would probably have applied to other utility bills, and then made a similar concession in respect to the other expenses. When he prepared his affidavit he may not have thought in depth and detail about the particular items of household expenditure, recording instead his overall impression that his father's contribution was a small amount compared with his own contribution. The revision of evidence seems to me to have been a natural and plausible progression, even though it appears to have been motivated in part by a desire to explain his ability to repay the mortgage and save for the deposit. I therefore prefer the end result of that progression to the point prior to its commencement. 83 As to Mahmut's various estimates of the amounts of household expenditure, I take the view that the items of expenditure were not less than his estimates. 84 I find that the $17,000 was sent to Mr Atilgan in Turkey in April 1985, not in 1989. While the transaction slip annexed to Mahmut's affidavit of 4 October 1995 does not appear to bear the bank's stamp, it appears to have the initials of a teller, and the date is quite clearly stated. It may be that the stamp was fixed solely to the part of the transaction slip on the other side of the perforation, which is not in evidence, or it may be that the bank teller omitted to affix the stamp. The absence of the appearance of a stamp on the part of the transaction slip which is in evidence is therefore not by any means conclusive. I think it is safer to rely on the documentary evidence constituted by the transaction slip than to accept oral evidence to the contrary, very tentatively expressed. 85 I reject the evidence of the plaintiffs that Mahmut promised Mr and Mrs Atilgan or either of them that he would give them an interest in Hutchinson Street or Harrow Road. I infer from the evidence of all four plaintiffs that from quite an early time, before the acquisition of Hutchinson Street, it is probable that Mrs Atilgan expressed concern that there was no family home and that she and her husband would not be properly provided for. It may have been that Mahmut made reassuring statements of some kind which his sisters have now reconstructed into more specific statements about acquiring property in his mother's name. I do not accept the evidence of Muzeyyen and Meziyet, or the evidence of Mr and Mrs Atilgan, that any such more specific statements were made. 86 As I have explained, I reject the evidence of Mrs Atilgan that the interest bearing deposit of $15,000 was used as part of the purchase money for Harrow Road. And I reject her evidence that she consented to the sale of the Gibbons Street property only on the condition that her son undertook to transfer Harrow Road into her name or into the names of her and her husband. I reject Mrs Atilgan's evidence that she went to Westpac Bank for the approval of the loan for the purchase of Harrow Road, or to attempt to make arrangements for the property to be transferred into her name. 87 I accept, however, that Mr and Mrs Atilgan, with financial help from their daughters, accumulated some savings during 1982-1984 after making their financial contributions to household expenses. Similarly, I accept that there were some savings of their pensions after deduction of their share of household expenses during the period 1985 to 1987. I prefer Mahmut's evidence to theirs, that he did not obtain this money, except to the extent, and only to the extent, that an overriding consideration which I shall mention points to the contrary. 88 The plaintiffs assert that they made financial contributions with the intention that Mr and Mrs Atilgan would acquire ownership of or interests in the Hutchinson Street and Harrow Road properties. Muzeyyen and Meziyet say that when they made contributions, they did not intend thereby to acquire any interest for themselves, but rather to enhance the interest of their parents. Mr and Mrs Atilgan say that they intended, when making contributions, to obtain an interest for themselves in Hutchinson Street, and to obtain an interest either for Mrs Atilgan or for both of them in Harrow Road. I have found that the daughters made financial contributions to their father in amounts which I cannot quantify, and I accept that in doing so, they did not intend to obtain any interest in property for themselves. However, on the evidence before me, and particularly having regard to my assessment of the credit of witnesses, I am not able to find that any of the plaintiffs intended, when making the financial contributions which they made, to obtain the ownership of or any interest in Hutchinson Street or Harrow Road. The overriding consideration - the mathematical calculation 89 If that were the end of the matter, I would therefore find against the plaintiffs on all of their claimed grounds for relief. However, to do so would be to ignore an overriding consideration which arises out of the mathematics of the financial circumstances of the parties. As I have mentioned, counsel for the plaintiffs cross-examined Mahmut in detail on his and Ayfer's income, and on all expenditure which they claimed to have been made from that income, during three periods: namely, the period 1981-1984 when the family lived in rented accommodation in Board Street, Lidcombe; the period 1985-1987 when the family lived in Hutchinson Street prior to the purchase of Harrow Road; and the period 1988-1989, when the family continued to live in Hutchinson Street after having bought Harrow Road. On the basis of the evidence given by Mahmut, supplemented by the evidence of Ayfer as to her income and expenditure, counsel for the plaintiff prepared a series of schedules showing income and expenditure for each of those periods, and an overview for the period 1981-1989. Counsel handed up the schedules during submissions after the close of evidence. I made sure that counsel for the defendants would have time to consider and respond to the schedules. 90 Counsel for the plaintiffs said that the calculation of household expenses was prepared on the basis that wherever a range was given by Mahmut as to the cost of an item, the lower figure in the range was used. Some expenditures which are known to have occurred were not included because of the absence of estimated amounts - certain telephone bills, the purchase of two lounge suites, and a van. 91 The schedules contain some estimates made by counsel rather than by witnesses. For the financial year ending 30 June 1982 Ayfer's income is estimated to be $3,000. This is because, on her evidence, she worked for about three months during that financial year, and her income for her next full financial year was just over $12,000. Further, there was a gap in the evidence of Ayfer's taxable income, affecting the financial year ended 30 June 1987. Counsel has made his calculations on the assumption that the income for that year was the same as the income in the subsequent year, even though in the subsequent year the income was higher because of rental of Harrow Road, and in the missing year the income would probably have been lowered by the arrival of Ayfer's second child. This is why there is a note for the 1987 year which says 'probably $8,000 baby etc', but the higher figure is the one used in the calculation. Finally, since Mahmut was less cooperative later in cross-examination than at an early time, his estimated expenditures for the period 1988 to 1990 cover more limited ground than for the earlier period, and consequently counsel has made his own extrapolations from earlier estimates where the witness did not give any estimate for the later period, bearing in mind the number of adults living in Hutchinson Street at the time. 92 I have reviewed the schedules in light of the evidence. I agree with the submission of counsel for the plaintiffs that Mahmut's estimates of expenditure, upon which the schedules are based, appear to be lower than one would expect expenditure to be for the number of people in the house during each relevant period. In my opinion, therefore, the estimates of expenditure are very conservative. Moreover, common experience suggests that there probably would have been other unbudgeted expenditures outside the matters covered in cross-examination. 93 I reproduce the schedules as an appendix to these reasons for judgment. They show that during the period from 1981 to 1984 there was a deficiency of expenditure over income of $29,939. Expenditure includes the whole of the household expenditure and the $36,000 deposit for Hutchinson Street. The income is the income of Mahmut and Ayfer alone. 94 Mahmut's oral evidence, which I have preferred his earlier affidavit evidence for reasons which I have given, is that his father contributed up a half of the household expenses, though not necessarily on every item of those expenses. Without going through all of the categories of expenditure separately, it is evident that if Mahmut and Ayfer were required to bear only half, or a little more than half of the total household expenditure of $62,472, they would have been able to save out of their income the whole of the deposit of $36,000 for Hutchinson Street. 95 As far as Hutchinson Street is concerned, therefore, I take the view that the schedules do not have the effect of overriding the findings which I would otherwise make on the evidence, because the schedules do not demonstrate that Mahmut and Ayfer would have been unable to pay the $36,000 deposit from their own savings. It follows that the plaintiffs have been unsuccessful in proving any evidentiary basis for an equitable interest of any kind in Hutchinson Street. 96 The schedules show that during the period 1985 to 1987, total expenditures exceeded Mahmut and Ayfer's income by $60,102. The expenditures which are listed include household expenses of $28,875, loan repayments of $44,000 (including interest), the accumulation of the term deposit of $15,000, bank drafts to Mr Atilgan in Turkey of $20,000, and the deposit of $31,000 for Harrow Road. One could also add repayment of the $5,000 loan which Mahmut borrowed from his solicitor at the time of acquisition of Hutchinson Street, but as the evidence is not clear on when the loan was repaid, it is probably best to leave it out. If one reduces the household expenses borne by Mahmut and Ayfer to half the figure shown in the schedule, the deficiency is reduced to $45,665. The reliable evidence is that the bulk of the $15,000 in the term deposit was contributed by Mahmut and Ayfer. But even if one reduces the $15,000 substantially, expenditure still exceeds Mahmut and Ayfer's income by an amount well in excess of $31,000. 97 How was this shortfall funded? As I have mentioned, my conclusion on the evidence as a whole is that Mahmut and Ayfer had no other substantial income. Mahmut's evidence is that he had no other assets, and while Ayfer did not expressly say so, I infer from the evidence which they both gave that she had no substantial assets which she brought to the table to fund the acquisition of the properties. The money could have been provided by loans from friends, but again I believe the proper inference from all of the evidence is that there were no such loans, since Mahmut consistently asserted that the funds came from their own resources. On the other hand, I have found that Mr and Mrs Atilgan were steadily accumulating savings in some account or other, from their social security payments and contributions by children living with them. In my opinion the most plausible inference is that Mahmut and Ayfer used the savings of Mr and Mrs Atilgan, in an amount well in excess of $31,000, to make up the shortfall. 98 Just how Mr and Mrs Atilgan's savings came to be used by Mahmut and Ayfer is totally unclear, on the credible evidence which is available to me. All I have is the simple factual inference that the money was probably used, either by being applied from an account in their name, or by virtue of it already having been paid into an account in the name of Mahmut and Ayfer or one of them. 99 Counsel for the defendants says that the schedules cannot be used to support the kinds of inferences and conclusions which I have made, because they do not take into account anything in the nature of other payments which might have been received by Mahmut and Ayfer, in addition to their taxable incomes. For example, he points to the availability of a government scheme to assist first home owners which was in place in the 1980s. In fact there is evidence that Mahmut and Ayfer benefited from such a scheme, appearing as annexure C3 to Mahmut's affidavit of 4 October 1995. From that annexure it appears that the total value of the scheme, over a five year period, was less than $5,000, and so that receipt is not material. Counsel for the defendants also submits that Mahmut and Ayfer would have been entitled to child endowment payments in respect of their children. However, there is no evidence of the level of child endowment payments and I have concluded on the evidence as a whole that substantially all of their income was represented by their tax assessments. 100 Counsel for the defendants also makes a submission based on, or by analogy with, Browne v Dunn (1893) 6 R 67. He complains that neither Mahmut nor Ayfer was challenged on the basis that it would have been impossible for them to have covered all of the expenditure from the income disclosed in their taxation assessments. In fact, however, a series of questions was put to Mahmut along those lines. For example, the following appears at page 323 of the transcript: 'Q. The reality is that once the Hutchinson Street purchase was made and the family had moved there, you couldn't possibly have paid that mortgage off in the three years that you did, and been saving the amount of money you say you saved for the Harrow Road property, unless you were getting the financial help from your mum and your dad and your sisters that they have said they were giving you? A. Excuse me I would like to say again, I don't want to argue on that. I just said whatever evidence or whatever documents I have given to you, it should prove and show you there, nice and clearly. It doesn't matter what I am saying.' 101 Imperfect though they are, the schedules demonstrate an inexorable reality, if we accept at face value the evidence of Mahmut and Ayfer that they had no other sources of income. The reality is that their income fell a long way short of what would have been needed to make all the expenditure which they claim to have made, unless their savings had been augmented by other family members. The law 102 The legal principles which are relevant to these peculiar facts can be stated in brief compass. In my opinion the only basis for giving relief to the plaintiffs of the kind which they seek is under the law of trusts. The facts would not support equitable proprietary relief on some other basis, such as under the law of proprietary estoppel or the law concerning liens: cf Morris v Morris [1982] 1 NSWLR 61. Nor has any such basis been asserted. 103 Nor is this a case where there is any factual basis for finding an express trust. This is because, on my findings of fact, it has not been proven that Mr and Mrs Atilgan provided funds with the intention of becoming entitled to a beneficial interest: cf Malsbury v Malsbury [1982] 1 NSWLR 226. They assert that they did so, but I have rejected that evidence. All we have here is an inference arising out of the financial mathematics, that Mahmut and Ayfer must have used savings of Mr and Mrs Atilgan to buy Harrow Road, but no finding that Mr and Mrs Atilgan intended that their savings be used for that purpose. 104 A fortiori , this is not a case where a trust might be found to arise out of an agreement or some lesser expression of common intention, side-stepping the Statute of Frauds because equity will not allow that statute to be used as an instrument of fraud: Bannister v Bannister [1948] 2 All ER 133; Allen v Snyder [1977] 2 NSWLR 685. 105 In my opinion, the correct analysis is that on the facts as I have found them, there is a resulting trust of the Harrow Road property for Mr and Mrs Atilgan, who together are entitled to an equitable interest in the proportion that $31,000 (the cash deposit) bears to $65,000 (the total purchase price and expenses). My reasoning is as follows. 106 First, the inference from the limited facts which have been proved is that there was a shortfall in excess of $31,000 between the expenditure made by Mahmut and Ayfer and their income, and the savings of Mr and Mrs Atilgan (augmented by their daughters' contribution) must have been used to make up the shortfall. But that does not demonstrate that Mr and Mrs Atilgan's money must have been used as the deposit for Harrow Road rather than (say) for repayment of loans. Since the obligation to repay the loan to the St George Building Society, and the earlier loan in respect of Hutchinson Street to the Commonwealth Bank, were undertaken only by Mahmut and Ayfer, subsequent repayments by Mr and Mrs Atilgan of instalments of those loans would not give them any interest in either property, even though the lenders were secured by mortgages: Bloch v Bloch (1981) 180 CLR 390; Calverley v Green (1985) 155 CLR 242, 263 (per Mason and Brennan JJ); cf Gissing v Gissing [1971] AC 86, 903 (Lord Pearson); Jacobs' Law of Trusts in Australia (6th ed, 1997 by R P Meagher and W M C Gummow), 293-294. 107 However, in my opinion it is appropriate to apply an equitable presumption which, in the present circumstances, produces the conclusion that the money expended for other purposes is presumed to be money of Mahmut and Ayfer, with the result that otherwise than as necessarily depleted for those other purposes, Mr and Mrs Atilgan's money remains for payment of the deposit on Harrow Road. The presumption arises out of Re Hallett's Estate (1880) 13 Ch D 696 and Re Oatway [1903] 2 Ch 356. In the former case the English Court of Appeal held that where trust money is mixed by the trustee with money of his own, and expenditure is made from the mixed fund, withdrawals are to be treated as representing the trustee's own money and the trust money is to be treated as withdrawn only after the exhaustion of the trustee's money. In the latter case it was held that when an investment is made out of a mixed fund and the balance is later dissipated, the investment is treated as having been made with the beneficiary's money. 108 In the present case the skimpy facts do not establish that there was mixing of trust money with the money of a trustee. They do establish, however, that during a period of time money over which Mahmut and Ayfer must have had control or access (namely Mr and Mrs Atilgan's savings) and their own money were used for various purposes, with no evidence as to how they were used. Given that Mahmut and Ayfer had control over their own money and Mr and Mrs Atilgan's money, and there is no way of specifically severing the funds and tracing them into the expenditures which were made because of the total absence of evidence, the situation is closely analogous to a mixing of trust money and trustee's money in a single account - so closely analogous, in my opinion, that it is appropriate to apply the principle of Re Hallett's Estate and Re Oatway . The application of that principle means, in the circumstances, that the $31,000 deposit for Harrow Road is presumed to have been provided entirely by Mr and Mrs Atilgan. 109 Secondly, it appears to me on balance that although I have not been able to find that Mr and Mrs Atilgan intended to make their savings available in order to acquire a beneficial interest in Harrow Road, their savings have in fact been used (with the aid of the Re Hallett's Estate presumption) to provide the cash component of the purchase money, the remainder of which was borrowed. In the family circumstances which obtained in this case, there is no basis to treat Mr and Mrs Atilgan's funds as a further loan to Mahmut and Ayfer, in addition to the loans made by the external financier and the individual from whom Mahmut borrowed $3,000. Here, relevantly, the only evidence is that the savings existed and must have been used as the cash component of the acquisition. It is a bare case of legal title vested in someone other than the person who must have provided the cash component of the purchase money, and that is the very case in which (absent a presumption of advancement) equity will presume a resulting trust rather than a loan: Dyer v Dyer (1788) 2 Cox 92; 30 ER 42; Napier v Public Trustee (WA) (1980) 32 ALR 153, 158 (per Aickin J); cf Heydon v The Perpetual Executors & Agency Co (WA) Ltd (1930) 45 CLR 111. 110 The presumption of a resulting trust may be rebutted by the presumption of advancement, where property is transferred into the name of the wife or a child of the person who provides the purchase money: Napier v Public Trustee (WA) , at 158 (Aickin J). In this case, however, though the evidence is slight, the circumstantial evidence is sufficient to rebut any presumption of advancement. The evidence shows that Mr and Mrs Atilgan were living in a house owned by Mahmut and Ayfer. They shared household expenses with Mahmut and Ayfer, but did not confer any bounty in that process. They were concerned about their own future financial security. They were already apprehensive because they were not on the registered title to Hutchinson Street. Taken together, these facts are sufficient to rebut any presumption that if their money was used (and used, it should be noted, without any evidence that the money was in fact made available for that purpose or with any actual intention on the part of Mr and Mrs Atilgan to acquire an equitable interest), they intended to make a gift to their son and daughter-in-law. Here the surrounding circumstances rebut the presumption of advancement, and the lack of evidence about the circumstances of the actual provision of the funds leads to a presumption that Mr and Mrs Atilgan's money was used for the making of a permanent investment, and also to a presumption of resulting trust. 111 The result of the application of these equitable presumptions is that Mr and Mrs Atilgan have provided the deposit of $31,000 for the acquisition of Harrow Road. They have not provided any part of the borrowed funds which make up the balance of purchase money, since those funds were borrowed only by Mahmut and Ayfer: see Bloch v Bloch , cited above. The total purchase price for the purpose of the application of the law of resulting trusts includes the incidental costs and disbursements incurred by the purchaser in acquiring the property, rather than merely the benefit to the vendor: Currie v Hamilton [1984] 1 NSWLR 687, 691 (McLelland J); cf Little v Little (1988) 15 NSWLR 43 (Bryson J); see Jacobs' Law of Trusts in Australia (6th ed, 1997, by R P Meagher and W M C Gummow JJ) p.293. In the present case the total cost measured in this way was $65,000. Therefore Mr and Mrs Atilgan's interest in Harrow Road is an interest in 31/65ths of the entirety of that home unit property. Conclusions and orders 112 For the reasons given, the plaintiffs fail to the extent that they seek a declaration and consequential relief in relation to Hutchinson Street. However, they are entitled to a declaration that Harrow Road is held by Mahmut and Ayfer on trust for themselves as to 34/65ths, and on trust for Mr and Mrs Atilgan as to 31/65ths. That finding may lead to a consequential order that Harrow Road be sold and the proceeds be distributed to Mahmut and Ayfer, on the one hand, and Mr and Mrs Atilgan on the other hand, in those same proportions. However, I intend to hear the submissions of counsel before the final terms of my orders are settled. 113 On the question of costs, the plaintiffs have had some success in relation to one of the two properties, and have failed in relation to the other property. A convenient if approximate method reflecting this outcome would be to make no order as to costs, with the intention that each side should bear their own costs. However, I shall also hear the submissions of counsel on the question of costs. Clearly, no order for costs will be made against Mehmet, and I would be very reluctant to make any order for costs against Muzeyyen and Meziyet, given the circumstances in which they became parties to the proceedings.

Atilgan v Atilgan

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Judgment (33 paragraphs)

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Cases Cited (6)

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