Australian Military Bank Limited v Pike

Catchwords: BANKING AND FINANCE — Banks — Banker and customer relationship — creation of relationship – identification of customer
AGENCY — Creation of agency — Signing documents — authority of agent — Ratification
EQUITY – Trusts – Express trusts – Resulting trusts

Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Civil Procedure Act 2005 (NSW) s 144
Minors (Property and Contract) Act 1970 (NSW) ss 6(1)(m), 17, 18, 19, 46
Uniform Civil Procedure Rules 2005 (NSW) r 14.26(2)

Cases Cited: Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498
Australian Military Bank Ltd v Pike [2025] NSWDC 311
Bateman Television Ltd v Bateman [1971] NZLR 453
Bennett v Strauss (2016) 341 ALR 141; [2016] NSWCA 24
Bosanac v Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34
Brockway v Pando [2000] WASCA 192
Brown v Forrest [2017] NSWSC 1810
Browne v Dunne (1893) 6 R 67
Brun-Smits v Bank of Queensland Limited [2015] FCA 362
Davison v Vickery’s Motors Ltd (In Liq) (1925) 37 CLR 1; [1925] HCA 47
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Fountain v Alexander (1982) 150 CLR 615, 626 (Gibbs CJ), 634 (Mason J); [1982] HCA 16
Haythorpe v Rae [1972] VR 633
Hewer v Bryant [1970] 1 QB 357
Irwin v Pamplin (No 4) [2024] NSWSC 73
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9
Keighley, Maxsted and Co v Durant [1901] AC 240
Le v Yi [2025] NSWCA 227
Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509
Lordianto v Commissioner of the Australian Federal Police (2018) 100 NSWLR 630; [2018] NSWCA 199
McLaughlin v City Bank of Sydney v (1912) 14 CLR 684; [1912] HCA 16
Mills v Walsh [2022] NSWCA 255
National Australia Bank Ltd v Dionys [2016] NSWCA 242
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25
Pacific Carriers Ltd v BNP Paribas (2004) 78 ALJR 1045; [2004] HCA 35
Pearson v Pearson [1961] VR 693
Perry v Perry [2021] NSWSC 1669
Re French Caledonia Travel (2013) 59 NSWLR 361; [2003] NSWSC 1008
Re Hett, Maylor & Co Ltd (1894) 10 TLR 412
Robinson v Midland Bank Ltd (1925) 41 TLR 402
Russell v Scott (1936) 55 CLR 440; [1936] HCA 34
Saudi Arabian Money Agency v Dresden Bank AG [2004] EWCA Civ 1074
Shao v Crown Global Capital Pty Ltd (in prov liq) [2025] HCA 43
Soliman v University of Technology, Sydney [2009] FCAFC 159
Stoney Stanton Supplies (Coventry) Ltd v Midland Bank Ltd [1966] 2 Lloyd Rep 373
The Venture [1908] P 218
Thomson v Federal Commissioner of Taxation (1949) 80 CLR 344; [1949] HCA 63
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Tonna v Mendonca [2019] NSWSC 1849
Uttamchandani v Central Bank of India (1989) New Law Journal 222
Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2020] NSWSC 434

Texts Cited: G E Dal Pont (ed), Law of Agency (3rd ed, 2014, LexisNexis Butterworths)
J D Heydon and M J Leeming (eds), Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths)

Category: Principal judgment

Parties: Australian Military Bank (Plaintiff)
Kevin James Pike (First Defendant / First Cross-Claimant)
Nathan Pike (Second Defendant / Second Cross-Claimant)

Representation: Counsel:
A Crossland (First Defendant / First Cross-Claimant)
S Ower KC and A Oakes (Second Defendant / Second Cross-Claimant)
Solicitors:
N Christiansen (Plaintiff)
Digital Age Lawyers (First Defendant / First Cross-Claimant)
W Advisers (Second Defendant / Second Cross-Claimant)

File Number(s): 2024/109487

Publication restriction: Nil

Table of contents

Introduction

Facts not in dispute or otherwise established by contemporaneous documents

Witnesses

Kevin’s case

Kevin

Ms Colwell

Nathan’s Case

Nathan

Izabela

Parties’ submissions on witnesses

Nathan’s submissions

Kevin’s submissions

Court’s Approach to the witnesses

The Parties

Kevin

Nathan

Other witnesses

Ms Colwell

Izabela

Contentious factual Issues

Did Kevin deposit money into accounts in Nathan’s name in lieu of paying child support payments?

Did Kevin speak to Nathan from time to time about accounts at ADCU or AMB in Nathan’s name?

Did Nathan give money from his piggy bank to Kevin for deposit into accounts in his name and did Kevin so deposit? Did Nathan receive approximately $500 in $0.50 pieces from his grandmother and was it deposited into accounts in his name?

Was there a joint account in the name of Kevin and Nathan in addition to the Access Account?

Did Nathan or Kevin sign Nathan’s name in the Authority Document?

Legal basis of the Parties’ claims

Nathan’s Claim

Kevin’s Claim

Consideration

Banker-Customer Relationship

Identity of contracting Parties

Parental Power and the Access Account

Agency and the Access Account

Agency

Ratification

Post-contractual conduct

The Term Deposit

Trust Claim

Kevin’s Case

Nathan’s claim for payment by Kevin of AMB’s costs

Costs

Conclusion

JUDGMENT

Introduction

1. On 20 August 2024, the Plaintiff, Australian Military Bank Limited (AMB), was granted relief by way of interpleader in relation to an amount in the name of the Second Defendant in an account ending in “0095” (the Term Deposit). Orders were made which, amongst other things, ordered AMB to pay that amount (subject to a deduction for AMB’s costs) into Court. The amount paid into Court was $728,324.49 (the Fund).

2. Interpleader relief was granted by this Court because two people claimed legal and beneficial entitlement to the amount held in the Term Deposit. Those two people were the First Defendant, Mr Kevin Pike, and the Second Defendant, Mr Nathan Pike. They are father and son respectively. In this judgment, for convenience and with no disrespect, I will refer to them as Kevin and Nathan.

3. Both Kevin and Nathan brought competing cross-claims, each claiming entitlement to be paid the Fund.

4. In summary, Kevin’s claim is that he, at all times, was the legal owner of the Term Deposit (and other relevant accounts) and his beneficial interest followed his legal ownership. Kevin did not bring any alternative claim that if Nathan was the legal owner of the Term Deposit, Nathan held that legal ownership on trust for Kevin, whether by way of an implied, resulting, or constructive trust.

5. In summary, Nathan’s claim is, in substance, that he, at all times, was the legal and beneficial owner of the Term Deposit (and other relevant accounts). Alternatively, Nathan claims that if Kevin was the legal owner of the Term Deposit, Kevin held the Term Deposit on trust for Nathan.

6. At the beginning of the hearing of this matter I delivered an interlocutory judgment on the question of the Court’s jurisdiction to hear the matter. I concluded that the Court did have jurisdiction and that s 144 of the Civil Procedure Act 2005 (NSW) was not engaged. That judgment appears at [2025] NSWDC 311.

Facts not in dispute or otherwise established by contemporaneous documents

7. Nathan was born in February 1976 to Kevin and his then wife, Izabela Pike (again, with no disrespect, I will refer to her as Izabela). Kevin and Izabela separated in July 1976 and divorced in October 1978. They had lived in Giralang in the Australian Capital Territory. After their separation, Izabela and Nathan moved to live in Orange, New South Wales. Kevin later moved to Orange and worked as a journalist at the Central Western Daily. He later moved to Sydney.

8. On 26 March 1979, the Family Court of Australia made maintenance orders that required Kevin to pay $20 per week for Nathan’s maintenance, commencing on 8 April 1979. Prior to that time, the Court had made orders requiring maintenance of $15 per week.

9. In 1982, Kevin joined the Australian Navy. As a member of the Defence Force, he became a member of the Australian Defence Credit Union (ADCU) on 23 August 1983. He was given member number “xxx535” and he opened an account in his name with ADCU which he described as his military account (Military Account).

10. In around 1983, when Nathan was living in Orange, Kevin opened a bank account in Nathan’s name at the Commonwealth Bank of Australia (CBA).

11. In April 1986, Kevin’s son, Jack Pike, was born (again, with no disrespect, I will refer to him as Jack).

12. In January 1989, Kevin’s son, Benjamin Pike, was born (again, with no disrespect, I will refer to him as Benjamin).

13. On 14 August 1989, Kevin signed an application for membership and a share in ADCU (the 1989 Application). The application form had various boxes in which details of the applicant were to be inserted. In this application, within the box headed “Surname”, the name “Pike” with an initial “N” was recorded. In the box headed “Christian Names”, the words “Kevin Pike in trust for Nathan Pike” were recorded. In the box headed “Occupation” the word “child” was recorded. The address recorded in the application was Kevin’s address in Potts Point, New South Wales. Immediately above Kevin’s signature, the following words were recorded:

“I hereby apply for membership and one $2.00 share in the Australian Defence Credit Union. I agree to pay any charges required by the credit union listed in the rules and further agree to be bound by the rules of the credit union and by any alterations thereof registered in accordance with the credit union Act”

In a section of the application containing the words “Office Use Only”, next to the words “Account No”, is the number “xxx671” (“Nathan’s membership number”). Other documents of ADCU describe that number as a “member number”.

14. Also on 14 August 1989, an account (later described by ADCU as the “S1-Access” account) was opened with ADCU in the name of “Pike Nathan”. The initial passbook for that account records a deposit on 14 August 1989 of $5. Next to the name “Pike Nathan” the following words appear on the passbook: “Kevin Pike To Operate”. The passbook had a section into which was inserted a member number. The number “xxx259” was initially inserted but then crossed out and Nathan’s membership number was inserted. There is no direct evidence as to who inserted and then crossed out the initial member number and inserted the second member number, however, I infer it was someone at ADCU.

15. On 26 October 1990, a document titled “Authority to Operate Account” was executed (the “Authority Document”). The document had two signature points – one above the words “Member’s signature” where the name “N.Pike” appeared and one above the words “Signature of Authorised Agent”, where Kevin’s signature appeared. There is a dispute between the parties as to who wrote the words “N.Pike” and I will address that issue below. The document states the following:

“I have authorised Kevin Pike to sign on my behalf withdrawal forms/notices on my account number “xxx671”. Specimen signatures appear hereunder. Therefore, until you have received written notice to the contrary, please act upon all withdrawal forms/notices so signed. All previous authorities are hereby superseded, except as regards withdrawal forms/notices already signed”.

16. The S1-Access account started to be known by that name in 1991. At a much later point, ADCU changed from being a credit union to becoming a bank with the name AMB. AMB, at a point in time, started to describe accounts not only by the name of the account type and by membership numbers, but also by reference to a BSB number and an account number (which was different from the membership number). For example, in account statement 110, for the period ending 30 September 2017, the S1-Access account had an account number ending in “4688” associated with it. Ultimately, the account became to be identified on statements by reference only to the account number ending in “4688” and the word “Access”. Although Kevin did not concede this to be the case, the documents clearly bear this out. In this judgment, I use the term “Access Account” to refer to this account (that is, the S1-Access Account which became the account ending in “4688”). Neither party submitted, or otherwise suggested, that the change from ADCU, a credit union, to AMB, a bank, had any impact on the legal and beneficial ownership of the Access Account from its inception to the date of the interpleader relief.

17. Kevin always operated the Access Account prior to 2022. He deposited money into the account and withdrew and transferred money out of the account. He used money from the account to open a series of term deposits with ADCU and AMB. On maturity of those term deposits, he ordinarily instructed that the matured amounts be deposited back into the Access Account.

18. Kevin organised term deposits over time in his name, and in the names of Jack and Benjamin. Each of Kevin, Jack, and Benjamin had separate membership numbers associated with the term deposits in their respective names.

19. Kevin also organised a series of term deposits with ADCU and then AMB in the name “N Pike”. Initially ADCU issued certificates in relation to each of the term deposits. Each certificate had details of the deposit date and the maturity date and relevant interest rate for that term deposit. Each certificate also had terms and conditions set out in the certificate. Early certificates contained a condition that, unless contrary written instructions were received before the maturity date, ADCU would direct the funds in accordance with instructions received at the time of the investment. Later certificates contained a statement that, if ADCU did not hear from the depositor, the term deposit would be automatically renewed for the same term at the rate applicable on maturity.

20. The first certificate relating to a term deposit in Nathan’s name that was in evidence was one that had a deposit date of 6 September 1994. That term deposit was in the amount of $2,590. The Term Deposit into which the disputed funds were invested was opened on 28 March 2019 in the amount of $675,000. The $675,000 deposited into the Term Deposit was withdrawn from the Access Account. On 1 October 2019, $20,000 was added to the Term Deposit, drawn from the Access Account. On 30 December 2020, $40,000 was added to the Term Deposit, again drawn from the Access Account. The Term Deposit was in the name of “N Pike”. In evidence there are statements (being account summaries addressed to “Mr N Pike”) bearing Nathan’s membership number which, among other things, record details for the Access Account and the Term Deposit. Against the Term Deposit are the words “Owner/s: Mr N Pike”.

21. On 31 December 2020, Kevin emailed AMB with instructions to reinvest $740,000 in the Term Deposit for another 6 months and, on maturity, to return the principal plus interest to the Access Account. On the same day, AMB emailed Kevin and told him that it could not take instructions to move the principal of the Term Deposit on maturity to the Access Account. AMB advised that such action would be deemed as closing the term deposit, and that if he wished to do so, the bank would require a signed form from the “main account holder” – plainly a reference, by AMB, to Nathan. At some point, it appears that AMB changed its practice so that it would not move funds from a term deposit into the Access Account without Nathan’s signature on the relevant bank form. For at least two decades prior to this time, ADCU and then AMB were prepared to do that on Kevin’s instructions.

22. On 14 January 2021, Kevin emailed AMB requesting a form to turn “Nathan’s account into a joint account”. On the same day, AMB emailed Kevin, declining his request to turn “Nathan’s account” into a joint account. AMB indicated it could not change the “relationship” mid cycle (this was apparently a reference to the Term Deposit).

23. On 6 February 2022, AMB emailed Kevin, indicating that it was seeking, in relation to accounts in Nathan’s name, to meet its obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and the “AML/CTF Rules” which, it said, required AMB to have in place customer identification processes and procedures. There is no evidence that AMB engaged in any such identification processes and procedures in relation to Nathan prior to 2022.

24. On 13 December 2022, Nathan requested AMB to remove Kevin as an authorised signatory. AMB did so. AMB notified Kevin of his removal the next day. By this stage, the dispute between Kevin and Nathan in relation to the amount in the Term Deposit was before Australian Financial Complaints Authority (AFCA).

25. On 28 December 2022, AMB emailed Kevin and said that he was no longer an “authority to operate" on the Term Deposit, however, remained an ‘authority to operate on the access account’. It also said that the Term Deposit and Access Account were both in Nathan’s name.

26. The funds that were invested in the Term Deposit continued to be rolled over on maturity until 30 August 2024 when the Term Deposit account was closed. The amount then standing to that account was $801,233.92. That amount was then credited to account number “xxxxxx208” which had, on the account summary for Nathan’s membership number, the words “owner/s Mr N Pike”. That account appears to have been opened on or about 1 July 2024 pursuant to a request from Nathan. However, I infer that the payment into this account was merely an administrative action by AMB to place itself in a position to pay the funds into Court because the payment into Court from that account occurred on the same day as the money was credited to the account. That is, I do not take anything from the fact that AMB placed the funds from the Term Deposit into another account in Nathan’s name before paying that amount into Court. That amount, less an amount of $72,909.43 on account of AMB’s costs of the interpleader proceedings, was paid into Court pursuant to the Court’s orders. The amount paid into Court was $728,324.49.

27. Nathan did not engage with AMB in any way in relation to the opening of any of the term deposits or in relation to the instructions to be adopted at maturity until December 2022. Nathan emailed AMB both in December 2022 and in June 2023 seeking to give AMB certain instructions in relation to the Term Deposit. There is no evidence that AMB acted upon those instructions. Nathan by email dated 30 June 2023 sought the transfer of the funds in the Term Deposit on maturity to an account in his name in a different financial institution. AMB did not carry out those instructions and the dispute between the parties in relation to the Term Deposit crystallised.

Witnesses

28. Several factual issues were raised by Kevin and Nathan. I set out below, in summary, the evidence of the witnesses called by them. I do not, however, generally refer to the evidence related to the facts set out paragraphs [7]-[24] above. I proceed to make findings only in relation to those factual disputes that I consider relevant to a determination of the legal issues raised in the proceedings.

Kevin’s case

Kevin

29. Kevin was the only witness in his case who prepared an affidavit. Ms Colwell, Kevin’s second ex-wife gave evidence pursuant to leave granted during the hearing. I will deal with that evidence below.

30. Kevin relied on four affidavits he made in the proceedings. In summary, he gave the following evidence in his affidavits:

(a) After his separation from Izabela, he attempted to see Nathan on various occasions but his access to Nathan was made difficult by Izabela and her mother. In around late 1978 to early 1979, he moved to Orange to work as a sports reporter for the local newspaper. He remained in Orange until he joined the Navy in 1982. Izabela continued to make Nathan unavailable for visits; (b) In 1982, he moved from Orange to Sydney. He did not see or speak to Nathan again during his childhood and the next time he saw him was on Father’s Day just before Nathan was finishing high school or had just started university; (c) He opened an account for Nathan at CBA because he believed Izabela was receiving a parenting payment or subsidies from the government for having Nathan and he wanted to ensure that at least some of that money was set aside for Nathan; (d) He opened passbook accounts in the name of Nathan, Jack, and Benjamin with himself listed to operate the accounts. He opened those accounts to put aside money so that it could pass to his sons when he died. He periodically put money into the separate account of his three sons. He gave evidence about the source of the money he deposited in term deposits. His evidence was that the money came from various sources, being his savings; a long service payment of about $80,000 that he received in 1998; the money in the passbook accounts; and a lump sum superannuation payment of about $500,000 that he received in 2005. His evidence with respect to the superannuation payment was shown to be incorrect during his cross-examination. In fact, none of the money related to his superannuation payment was deposited into any term deposits but rather used to receive an ongoing superannuation pension, and otherwise towards his mortgage on his home at Rushcutters Bay. With respect to the $80,000 long service payment, his affidavit evidence is unreliable because, in cross examination, he said he would have deposited it into his Military Account and invested it “somehow”. Accordingly, that amount may or may not have found itself into the Access Account or a term deposit; (e) He did not speak to Nathan about the Access Account or the term deposits in Nathan’s name. In about 2017, upon maturity of the then extant term deposits that he had set up in his sons’ names, he gave directions that all the funds in all the term deposits be deposited into his Military Account. He said that by 2016, the Access Account (which he described as an account ending in “4688”) contained a substantial sum, being the combined sum of the separate term deposits he had made in each of his sons’ names. He then used that substantial amount to create new term deposits, and ultimately, the Term Deposit.

31. Kevin was cross-examined. During his cross-examination:

(a) He accepted that from time to time he would enter term deposits in his name, separate to those entered in the name of Nathan, Jack, or Benjamin; (b) He agreed that when he applied for membership in 1989, he was applying for membership for Nathan, because he was already a member. He first said he did not write the words “in trust” on the application. He then said he must have written those words. Ultimately, he settled on the position that he was not sure whether he wrote the words “in trust” but accepted that he signed the application with those words on it. He said that he arranged $20 per week payments into Nathan’s account until 2005. He said he thought the payments would have finished when he left the Navy because he arranged it during that time. It was not until he was in the witness box that he said he did not know the payments continued. He thinks that the payments continued to be made because he did not stop it; (c) He said he attended Orange Courthouse to pay child support until it came out of his pay; (d) Contrary to evidence given by Nathan, he said he never saw a piggy bank owned by Nathan from which Nathan gave him money to deposit into his account at CBA and ADCU. Indeed, he was very firm that Nathan never gave him any money; (e) He did not tell Izabela about the CBA account. He said in cross-examination (though not in his affidavit) that the account also had the purpose of depositing his money; (f) He was shown a Centrelink application dated 5 April 2013. He accepted that he signed the application on 3 April 2013. He did not recall the application. He accepted that the application contained what he believed was his mobile number and email address at the time. He accepted that the application recorded his account number and member number with ADCU, and that it was his signature declaring that the information on the application form was complete and correct. He accepted that even if he had not actually written the information on the application form, he would have checked the form before signing the declaration. On the application form in response to a request for the inclusion of savings accounts, cheque accounts, term deposits, joint accounts including accounts held in trust or under any other name, he recorded his account with ADCU under his own membership number, accounts with two other banking institutions, but did not record the Access Account nor any term deposits in Nathan’s name. He did not record any of the accounts in Jack’s or Benjamin’s name. He gave various responses in cross-examination as to why he did not record those accounts. First, he said he did not include the accounts because he was managing the accounts. Secondly, he said that the accounts or the money in the accounts “wasn’t for me at that stage”. Thirdly, he said it was his money but, because he was managing the money, he thought he did not have to tell Centrelink. Ultimately, he said that he neglected to tell Centrelink and that it appeared to be a mistake; (g) With respect to the payment of tax, he said that he never told the Australian Taxation Office that the accounts in Nathan’s name belonged to him and he said that was so because he was managing the account and that “it didn’t belong to me”. He caused a tax file number to be issued for Nathan and told ADCU and AMB about that; (h) He said that he never mentioned any account with Nathan and that Nathan would not have known about the accounts until the bank told him in 2022. He said that none of his sons knew that there were accounts; (i) With respect to a phone call to Nathan in 2013 when he was at Oxford (to which reference will be made below), he said that he called because AMB wanted proof that Nathan existed. He said that he was going to ring up and ask Nathan to send him a copy of his passport, but he was not going to tell Nathan about any accounts; (j) He was taken to an account statement for the period ending 31 December 2022 in which the Access Account was described as access account “K and N Pike”. Kevin persisted with his evidence that he established a joint account and put all the money from the different accounts into that joint account which then funded term deposits in Nathan’s name. Notwithstanding being shown documents that plainly established that the Term Deposit was drawn from the Access Account, Kevin would not accept that there was no separate joint account from which the money was drawn. He did not accept that the S1-Access account was eventually given an account number ending in “4688” but rather said the “4688” account was the joint account for “Kevin and Nathan Pike”. He claimed that for some reason the bank had just put that account in Nathan’s name. His evidence was that it was incorrect to describe the Access Account as being owned by Nathan or in his name but rather it should have been in the name “K and N Pike”. He was taken to an email chain from January 2021 which included an email from him to AMB dated 14 January 2021 in which he asked the bank for a form to turn Nathan’s account into a joint account. It appears that, between June and September 2021, the account name was changed from “N Pike” to “K and N Pike” and it still had that joint name for the statement period ending 31 December 2021. However, in the statement for the period ending 31 March 2023, the account name was changed back to “N Pike”. At all times, the account was described on the account statements as owned by Nathan; (k) With respect to Nathan’s evidence that his grandmother told him she was gifting him $80,000, he said his mother, whom he described as a pensioner living week-to-week, would not have had $80,000 in her whole lifetime. She sold her house for approximately $40,000, of which she gave Kevin $10,000 and his brother $20,000 and she moved in with his brother. He described the notion, advanced by Nathan, as “ridiculous”; (l) In relation to the Authority Document, he claimed (for the first time in the proceedings during cross-examination), that he printed Nathan’s name. He said he had permission from AMB to use Nathan’s name. He said Nathan did not know anything about any account.

Ms Colwell

32. Ms Colwell gave evidence without an affidavit having been served. She was Kevin’s wife for 11 years from 1983 to 1994. She had not had any contact with Kevin since the divorce. She gave evidence that during her marriage she recalled that Kevin had made child support payments at Orange Courthouse. She recalls Kevin telling her that he walked past the Courthouse with Nathan and that Nathan would say to his grandmother, that “we” go in there (the Courthouse) and “get some money because that’s where Mum used to pick it up from”. She said the discussions about child support occurred in the context of their budget. Once they were married, she said the child support payments were digitally paid directly from Kevin’s pay. Ultimately, in cross-examination, she accepted that her understanding about child support payments derived from what Kevin told her. She could not give any direct evidence of payments being made by way of child support.

Nathan’s Case

Nathan

33. Nathan relied on his two affidavits and also an affidavit of Izabela.

34. In his affidavit, he gave evidence that:

(a) He had limited contact with his father throughout his childhood. He said that when his father moved to Sydney, he saw him approximately three to four times a year; (b) He recalled numerous occasions when he waited at CBA in Orange while his father spoke to people at the bank (Kevin denies that he took Nathan to CBA); (c) He had a piggy bank when he was a child and placed in it cash gifts he received from relatives and friends during his childhood. He estimated he would receive approximately $200 per year. He said he received other money from time to time, including money from cherry picking when he was 10 to 14 years old. He said he would give his piggy bank to his father and ask him to deposit the money in the CBA account. He gave evidence that, when he was around seven or eight years old, he received a large number of coins from his grandmother which were mostly made up of $0.50 pieces. He recalls that his grandmother told him it was around $500. He said that Kevin told him that he would deposit those coins into the CBA account; (d) His mother had told him that Kevin did not make child support payments as he was required by the Court to do, and that his father sometime in the early to mid-1980s said to him not to worry because he was depositing money into Nathan’s account for him. Kevin denied that this occurred; (e) Sometime after his father moved to Sydney, he had a conversation with his father about opening an account at ADCU. He said the conversation was in person at Orange and his father had said that Nathan was better off having his money deposited with ADCU because it paid high interest rates. In relation to the Authority Document, his evidence was that it was his signature on the document and that he recalled signing the document; (f) From around the age of 13 or 14 years, and onwards, he was not aware of the specifics of his account or accounts with ADCU and AMB, however, he was aware that his father was managing them. He recalled his father from time to time referring to his accounts as a “term deposit”; (g) At some point, his father arranged his money in the CBA account to be transferred to ADCU, and he gave evidence that he recalled that his father told him that around $3000 was in the CBA account. He gave evidence that he remembered going to ADCU with his father wearing his navy uniform and recalled other people in the branch wearing uniforms. He gave evidence that, in the early 1990s, during a visit with his paternal grandmother, his grandmother said she had gifted him a large amount of money, namely $80,000. It was his evidence that his grandmother had told him she put the money in his term deposit. He gave evidence that, from time to time, his father told him that he had made deposits into his term deposit; (h) He gave evidence of a conversation with his father in which his father told him that he need not worry about child support because he was putting money into his account and that the money would be there when Nathan needed; (i) He gave evidence that in 2013 his father left a voicemail while he was lecturing at Oxford in which Kevin said that there was almost $500,000 in the term deposit. Nathan tendered an email that he sent on 24 November 2013 to his mother in which he wrote the following: “I had a voicemail in zoology from dad: there’s almost half a million in my credit union account …”; (j) Between 2002 and 2022, Nathan resided in England.

35. Nathan was cross-examined. In summary, the salient matters arising from cross-examination were the following:

(a) He said it was not his experience that his mother made it difficult for Kevin to visit him. While he accepted that he did not know anything about his mother denying visits to Kevin, he did not accept that she limited Kevin’s contact; (b) He was firm in his evidence that he remembered visiting CBA in Orange with his father. With respect to the $0.50 pieces given by his grandmother he said it was a few buckets full. He said there were several buckets of $0.50 pieces which he saw adults carrying to a car. He said what he saw was not anything to do with CBA. He accepted he did not ultimately see what was done with the $0.50 pieces. With respect to the piggy bank, he did not have a firm sense of how many occasions it was given to Kevin, but he thought it was more than the three occasions mentioned by his mother. He accepted, however, he had no reason to doubt her recollection given that she was an adult at the time and he was a child. He accepted he does not have a single clear recollection but rather a general recollection of giving his piggy bank to Kevin on many occasions. Ultimately, however, there is no evidence that either any piggy bank money or the $0.50 pieces were ever deposited into any account; (c) He accepted that prior to 2022, no term deposit certificates were addressed to any address that he had lived in. He accepted he did not have any copies of any passbooks related to accounts in his name at either ADCU or AMB. He accepted he never personally made a deposit; (d) He said that his father regularly and throughout his life mentioned term deposits and that it was something he felt his dad was proud of. He thought his father wanted him to know that he was being looked after. Nathan accepts that he only had generalised recollections of such conversations rather than recollections of specific occasions; (e) In relation to the Authority Document, he said that he recalled that he was with a friend painting a fence and that his father came and indicated that he wanted him to sign a document. He said he felt very special to be asked to sign a bank document which is why he remembers it. That aspect of his evidence is not contained in his affidavit. He cannot be certain that the document he signed was the Authority Document, although he remembers signing a document that his father said was to give him power over his account; (f) He accepted that his evidence was that he spent his whole adult life not knowing any details about the money in the accounts but having an expectation that he would receive it at some point in the future. He said that his understanding was that the money was there when he needed it and he did not know when he was going to need it. He said he saw the term deposit as a safety net. He never asked how the amounts in the term deposits grew to such a large amount.

Izabela

36. Izabela was called and cross-examined. She gave evidence that, although Kevin made some maintenance payments during their divorce proceedings, he stopped making payments after the proceedings concluded and never provided any financial support to Nathan or her following the divorce. She gave evidence that her greatest wish, after the divorce, was for Kevin to leave Nathan and her alone so she could be free from him. She gave evidence that she feared him, especially after he had been drinking. She gave evidence of a conversation with Kevin in Orange in which he explained that he was not paying maintenance but that he would look after Nathan in his own way. She gave evidence that she recalled on three occasions where she saw Nathan giving his piggy bank to Kevin.

37. She gave evidence that in the early 1990s, Nathan had told her that his grandmother had given him an $80,000 gift. She said that she had subsequently called Nathan’s grandmother, thanking her for the gift and that the grandmother said, “I hope that he continues playing piano. He might like to use it to buy a piano.” She gave evidence that in early 1994, she called Kevin on the telephone from Orange to ask if he could help with Nathan’s tuition and accommodation costs as he was attending college at the University of Sydney. She said the gist of Kevin’s response was that he declined to provide that financial assistance but said there will be money there when Nathan needs it and that there was a very healthy account for Nathan when he turns 18 or when he needs money.

38. In cross-examination, Izabela accepted that when she thought Kevin might be coming to see Nathan in Orange, she would take Nathan away so he could not see him. She said her relationship with Kevin improved years later. She accepted that she did not have a good recollection of events from 1979 in relation to child support payments. She recollected that Kevin did pay child support payments for a time, but her recollection was that at some point he may not have been paying childcare. She accepted that she did not have a clear recollection of the timing, duration and dates concerning the matters to which she gave evidence. She accepted that she could not be sure of everything she gave evidence about. She did not know anything about Nathan having experience of getting money at Orange Courthouse. She said she never went to the Courthouse to pick up money. She said she received child support payments into her bank account for a short period, however, once they stopped, they did not resume. Her evidence concerning the $80,000 was that Nathan’s grandmother was very old at the time and had been in hospital for two weeks. She did not how Nathan’s grandmother had $80,000.

39. She said that she did not speak to Kevin very often, but she recalled him saying that he was looking after Nathan in his own way. She did not know the details of any bank account for Nathan other than that it existed from things that Kevin told her.

Parties’ submissions on witnesses

Nathan’s submissions

40. Nathan submitted that Kevin was an unreliable, and at times, untruthful witness. He submitted that Kevin was willing to shape his evidence when he thought it would assist his case. Nathan submitted that Kevin’s evidence should only be accepted where it is supported by objective evidence, inherently plausible, or against his own interest. He submitted that his testimony was frequently evasive, inconsistent with contemporaneous documents, and coloured by a sustained tendency to assert ownership of the funds regardless of the legal and factual premise been put to him. He gave the following examples:

(a) He submitted that Kevin’s evidence that he did not know the $20 deposits into the Access Account continued for many years is unbelievable; (b) He suggested that Kevin had a striking lack of memory but also a tendency to invoke a lack of memory selectively when questions became difficult; (c) He submitted that Kevin’s evidence on the account arrangements was both combative and implausible. He pointed to Kevin’s insistence that there was a separate joint account with Nathan notwithstanding being taken step-by-step through the account name and numbering changes of the Access Account. When pressed on the inconsistency of the documents to his evidence, Kevin resorted to blaming the bank, saying that the bank did strange things; (d) He submitted that Kevin’s evidence on child support payments was vague and consisted of shifting accounts; (e) He submitted that Kevin’s evidence in cross-examination conflicted dramatically with his evidence in his affidavits. He relied on Kevin’s evidence concerning his superannuation and long leave payments referred to above; (f) He submitted that Kevin’s demeanour reinforced the impression of an argumentative and self-serving witness; (g) He submitted that Kevin was willing to bend the truth to suit his own purposes and that this was demonstrated in his communications with AMB and AFCA upon discovering he could not move the disputed funds into an account in his name. In an email to the bank on 17 December 2021, Kevin said “…we have a term deposit this month. Please return to our joint account. Kevin and Nathan Pike.” Nathan submitted that the email implied that Kevin was writing with specific approval of Nathan which was not the case. On 16 May 2022, Kevin sent an email to AMB in which he explained the lack of contact with Nathan and his mother was because he had remarried and had no contact with them. However, as at May 2022, Kevin had been divorced from his second wife for 26 years.

41. Ultimately, Nathan submitted that the Court should approach Kevin’s evidence with considerable caution.

42. Nathan also submitted that the Court should draw inferences in accordance with the principles in Jones v Dunkel [1] because Kevin failed to call his other sons, Benjamin or Jack, to give evidence that he never discussed accounts with either of them. There was no reason they could not have given evidence in support of Kevin. However, to the extent discussions about accounts are relevant to the issues in this proceeding, those discussions relate to the accounts in Nathan’s name. There is no suggestion that either Benjamin or Jack could have given any material evidence relevant to those issues. I do not consider that it is appropriate to rely on their failure to give evidence for the drawing of any inferences in these proceedings.

43. With respect to his own evidence, Nathan submitted that he was a credible and reliable witness and that his evidence was consistent with contemporaneous documents, wherever such documents existed. While his recollection was imperfect, he said he made concessions when appropriate rather than attempting to reconstruct events. I accept that Nathan sought to give evidence truthfully.

44. Nathan submitted that Izabela did her best to assist the Court with her evidence. He submitted that although her memory was limited, there was no basis to reject any part of her affidavit that was not the subject of specific challenge.

Kevin’s submissions

45. Kevin submitted that his evidence was given consistently, curmudgeonly, and laconically. He submitted he was affected by having understandable memory problems by the passing of time. He also submitted that although he was, perhaps, affected by a misplaced certainty on certain matters, he did not, assessed objectively, come across as lying in general to the Court. Kevin notes that King’s Counsel for Nathan did not on many instances consider it appropriate to expressly put to Kevin that he was lying. Allegations of untruths simply did not feature greatly in the way the cross-examination was conducted.

46. Kevin notes that in cross-examination, Nathan was unable to say with certainty that it was his signature on the Authority Document.

47. In particular, Kevin submitted that the Court ought not find that he was lying when he gave evidence that he signed “N Pike” in the Authority Document. He advanced the following reasons:

(a) He gave evidence that ADCU allowed him to sign under the agreed management and that evidence was not challenged; (b) In those circumstances, he says that Nathan is not permitted to submit that Kevin’s evidence ought not to be accepted in his evidence; (c) The evidence was not so implausible or ridiculous that it should be rejected in the absence of challenge. In this regard, Kevin observes that the conduct generally of the ADCU/AMB over the history of its dealings was not characterised by a close adherence to the rules or formalities.

48. Further, Kevin submitted that by reason of the rule in Browne v Dunne, [2] Nathan’s ability to submit that Kevin was lying with respect to his evidence concerning the Authority Document is limited. Kevin relied, in this regard, on the decision in Soliman v University of Technology, Sydney (“Soliman”). [3] I deal with that issue below.

Court’s Approach to the witnesses

The Parties

Kevin

49. I do not accept Nathan’s submission that Kevin’s evidence, as a whole, should only be accepted where it is supported by objective evidence, inherently plausible, or against his own interest.

50. However, I consider that Kevin:

(a) Was reluctant to concede matters which he considered were adverse to his case. I make this finding because:

(i) He continued to assert the existence of a joint account with Nathan separately to the Access Account when the documentary evidence before the Court showed there was no separate joint account; (ii) He did not accept that he ever spoke to Nathan about any account at ADCU or AMB, despite being aware that Nathan had emailed his mother about a voicemail left by Kevin in which he refers to Nathan’s account (to which I refer below). The contents of that email strongly suggests that Kevin had spoken about the account to Nathan prior to the date on which the voicemail was left; (iii) He did not concede that the original S1-Access ultimately became account ending in “4688” despite being taken through the documentary record which established that fact;

(b) Gave certain evidence that was implausible:

(i) With respect to the opening of the CBA account, he said he never mentioned or discussed that account with Izabela. He could not explain how it was that the money paid to Izabela could find its way into the CBA account without Izabela knowing of the existence of the account; (ii) He claimed that he did not know or appreciate that consistent deposits were being made by him of $20 per week into the Access Account (I infer from his own military account) until shown bank statements whilst in the witness box. I do not accept his evidence in this regard given that those payments continued to be made over several years and then ceased in 2021. I refer to this further below;

(c) Was not careful in his evidence. His evidence in his affidavits concerning the source of money deposited into the Access Account or term deposits was shown to be materially incorrect; (d) Was plainly affected by memory lapses, which were understandable given the period of time since the important relevant events; (e) Gave his evidence, at times, in a way which sought to advocate his case rather than to do his best to assist the Court. I considered his demeanour in giving evidence reflected this approach. When confronted with bank documents that were inconsistent with his evidence, he had a tendency to suggest that the problem emanated from the relevant institution (for example, saying that they did some “strange things”).

Nathan

51. I consider that Nathan was an honest witness who answered questions in cross-examination thoughtfully and straightforwardly. He was prepared to make concessions in cross-examination. His evidence was affected by the fact that some of the events occurred when he was quite young, and thus some of his recollections were generalised rather than specific. Nevertheless, I considered his demeanour to reflect a witness who was seeking to put the truth before the Court without advocating for his position.

52. Whilst I do not accept Nathan’s submission referred to in paragraph [40] above (third sentence), I proceed on the basis that where Kevin and Nathan’s evidence conflict on matters concerning their dealings, or asserted dealings, with each other, I prefer the evidence of Nathan. I will accept his evidence in this regard unless it is inherently unlikely, unreliable, or otherwise contradicted by objective material.

Other witnesses

Ms Colwell

53. Ms Colwell was an honest witness. I accept her evidence.

54. As I have noted earlier, Ms Colwell gave evidence without an affidavit having been served from her. Nathan objected to leave being granted to Kevin to call Ms Colwell. I granted that leave because:

(a) Based on an outline provided to the Court, her proposed evidence was of very short compass and unlikely to cause any delay to the proceedings; (b) Her evidence was directed to a specific event about which Kevin gave evidence during cross-examination (and which he had not referred to in his affidavit), namely that he attended Orange Courthouse to physically make child support payments; (c) I considered it likely at the time leave was sought that Nathan would submit that I should not accept Kevin’s evidence in relation to his payments at Orange Courthouse; (d) Ms Colwell’s evidence was being called to corroborate Kevin’s evidence; (e) Nathan would have an opportunity to cross-examine Ms Colwell; (f) Given that the alleged child support payments at Orange Courthouse occurred approximately 30 years ago, I considered it unlikely that records of such payments would exist; (g) I was prepared to permit Ms Colwell’s evidence to be interposed between Nathan’s evidence and Izabela’s evidence. That is, Nathan was able to call Izabela after Ms Colwell’s evidence so that she had an opportunity to address that evidence; (h) I did not consider it likely that there was any material prejudice to Nathan by Ms Colwell giving evidence without an affidavit having been served given the limited scope of the evidence and the unlikelihood of objective records existing of the alleged payments.

Izabela

55. Izabela was an honest witness who had limited recall of the events in relation to which she gave evidence. Nevertheless, she was able to recall specific matters which I accept and to which I refer below.

Contentious factual Issues

56. As I observed earlier, during the proceedings several factual disputes arose between the Parties, however, I have confined my findings on those matters that are material to the legal issues raised by the Parties. I set out certain of those findings below. Other findings on material contentious matters are made, otherwise, in the course of the judgment.

Did Kevin deposit money into accounts in Nathan’s name in lieu of paying child support payments?

57. Nathan submitted that Kevin deposited money into accounts in Nathan’s name in lieu of paying child support. He says that conduct is consistent with him being the legal and/or beneficial owner of the Access Account and Term Deposit.

58. Although Izabela’s memory in relation to child support payments was not good, she was clear that although child support payments were made for a period (which she could not identify), Kevin ceased making those payments. I accept that evidence.

59. Nathan gave evidence that at one point, Kevin told him not to worry about child support because he was putting money into “his account”. There is no contemporaneous note of this conversation and Kevin denies it. Nathan was only around 10 years old at the time, and there appears to have been no reason for Kevin to bring up child support payments with Nathan, unless, perhaps, Kevin believed Izabela was telling Nathan that he was not paying child support and he wanted to allay any concerns Nathan had. However, there was no evidence that Kevin believed that to be the case or was otherwise told that. I do not consider Nathan’s evidence in this regard as reliable, and I am not satisfied that Kevin said what Nathan attributed to him in this regard.

60. The Access Account records regular deposits of $20. Kevin said that up to 2005, he had arranged with the Navy to have an allotment of $40 per fortnight paid into the Access Account. He accepted that by 2011, there were payments of $20 per week being paid into the Access Account but he claimed that that continuation of payments into the Access Account from his account occurred without his knowledge. Indeed, he claimed that he only discovered that $20 per week had been taken out for many years after 2011 whilst in the witness box. He said he was unaware that the payments kept being taken out of his pay. The payments stopped in 2021, however, Kevin said he had no idea how they came to be stopped. I consider Kevin’s evidence in this regard as implausible. ADCU and AMB statements were sent to Kevin’s address. I consider it highly unlikely that he did not observe a regular $20 per week payment over many years, particularly when those payments stopped at some point.

61. Nevertheless, I do not find that these regular payments were made by Kevin in lieu of child support payments. The evidence concerning the extent to which Kevin made child support payments is too vague to be able to draw any reliable inferences in this regard.

62. In this regard, I refer to the evidence of Ms Colwell. As I noted above, she was Kevin’s second wife. Although her evidence that Kevin made child support payments was based on what Kevin told her (as opposed to direct knowledge), her evidence that child support payments were discussed between them as part of conversations concerning their budget, supports an inference that during their time together (or at least during part of their time together), Kevin was making such payments. I do not have any basis to infer that Kevin was lying to his second wife about his making of child support payments. No reason is advanced as to why he would have so lied.

63. It is unnecessary to make any finding concerning Kevin’s evidence that he made child support payments physically at Orange Courthouse.

Did Kevin speak to Nathan from time to time about accounts at ADCU or AMB in Nathan’s name?

64. Nathan’s evidence is that Kevin, from time to time spoke to him about accounts in his name. Kevin says he did not. I accept Nathan’s evidence that throughout his childhood, including after Kevin moved to Sydney, he saw or spoke to Kevin from time to time, though their contact was limited. I refer to my finding in [52].

65. Kevin did not give a cogent explanation, either in his affidavit or when giving his evidence, why he would not have spoken to Nathan about accounts in Nathan’s name – either the CBA account, or the Access Account, or term deposits. The effect of his evidence is that, although he operated accounts in Nathan’s name at CBA, ADCU, and subsequently AMB, he said nothing of their existence, even at a high level of generality, to Nathan.

66. Nathan’s evidence is that Kevin did speak to him, from time to time, about bank accounts in his name including the account at CBA, and at ADCU. He said Kevin, from time to time, would refer to Nathan’s term deposit. Indeed, he said that he felt those conversations were a form of bonding between he and his father – that is, it seemed to Nathan that Kevin took some pride in the fact he was “looking after” Nathan.

67. On 24 November 2013, Nathan sent an email to his mother which contained the following words:

“I had a voicemail in zoology from Dad: there’s almost half a million in my credit union account …”

68. It was not suggested to Nathan that he lied to his mother in this email. The email is significant in several ways:

(a) It is consistent with Nathan’s evidence that his father spoke to him about his accounts; (b) It entirely contradicts Kevin’s evidence that he did not speak to Nathan about his accounts; (c) It refers to “my account” which is consistent with Kevin having described the account as Nathan’s account; (d) It refers to an account at the “credit union” which is consistent with Kevin having told Nathan that he had an account at a credit union and I consider it highly likely, in those circumstances, that Kevin would have told Nathan that it was ADCU; (e) The amount referred to in the email, namely “almost half a million” is consistent with the ADCU statements concerning the term deposit existing at the time. The September 2013 statement recorded the term deposit at $405,000 whilst the December 2013 statement recorded the term deposit at $442,000.

69. The content of the email undermines Kevin’s evidence that he did not mention to Nathan the existence of accounts that were in Nathan’s name. I reject Kevin’s evidence in this regard because:

(a) He gave no cogent reason as to why he would not have mentioned the accounts to Nathan. He gave no explanation as to how it was that Nathan was able to write to his mother that “his account” at the “credit union” had almost $500,000. No suggestion was made that that information could have come from any source other than Kevin; (b) Nathan’s evidence about such discussions was consistent, and not shaken in cross-examination; (c) The email referred to above is objective, contemporaneous evidence consistent with Nathan’s evidence and inconsistent with Kevin’s evidence; (d) Of my findings at paragraph [52] above.

70. I accept Nathan’s evidence, and find that, from the time to time over the years since the opening of the CBA account, Kevin did mention and speak to Nathan about accounts opened by Kevin in Nathan’s name.

Did Nathan give money from his piggy bank to Kevin for deposit into accounts in his name and did Kevin so deposit? Did Nathan receive approximately $500 in $0.50 pieces from his grandmother and was it deposited into accounts in his name?

71. Nathan’s evidence in regard to his piggy bank and the $0.50 pieces from his grandmother is set out above.

72. Kevin vehemently denies receiving any money from Nathan. It was suggested to Kevin in cross-examination that he was tailoring his evidence to assist his case in this regard.

73. I accept Nathan’s evidence that he did, from time to time, give piggy bank money to his father. Notwithstanding Kevin’s strong denial, I make that finding because:

(a) Of my finding at paragraph [52] above; (b) Because Kevin facilitated the opening of an account at CBA in Nathan’s name and that account, in Kevin’s words was “for Nathan”; (c) It was accepted that Nathan’s piggy bank did exist (Counsel for Kevin observed that Nathan had brought it to Court); (d) It is inherently plausible that a son would give piggy bank money to his father to deposit into an account opened for him by his father; (e) I have rejected Kevin’s evidence that he never spoke to Nathan about his accounts.

74. As noted earlier, Nathan gave evidence that his grandmother gave him approximately $500 in $0.50 coins. That would amount to 1000 $0.50 pieces. He said he recalled several adults carrying buckets of coins to a car. Although Nathan said in his affidavit that Kevin said he would deposit the coins for him, there is no evidence he gave the coins to Kevin. Indeed, in his cross-examination, he said his recollection of the coins had nothing to do with a bank. There is no other evidence supporting Nathan’s evidence in this regard. In short, whatever the position with respect to Nathan’s evidence of his receipt from his grandmother of approximately 1000 $0.50 coins, the evidence does not satisfy me that Kevin received the coins or that he deposited them into any account.

75. I am not satisfied that any money that was given by Nathan to Kevin found itself in any account in Nathan’s name. There is no direct evidence of that occurring. There is very scant evidence of the amount, if given, that would have been provided to Kevin at any particular time. No correlation between any such possible amounts and deposits into the accounts is established in the documentary record in evidence because for the period prior to 2011 (during which Nathan says he gave this money to Kevin) there are no records.

Was there a joint account in the name of Kevin and Nathan in addition to the Access Account?

76. As noted above, Kevin gave evidence that, in addition to the Access Account, he opened another account in around 2020 which was a joint account in both his and Nathan’s name.

77. There is no documentary support for Kevin’s evidence in this regard. Further, the documentary record establishes the following:

(a) The Access Account was, other than for a brief time, in Nathan’s name; (b) On 14 January 2021, Kevin emailed AMB, saying in part, that “we were after a form to turn Nathan’s account into a joint account …” There is no evidence that Nathan authorised Kevin to seek a change in the Access Account; (c) In AMB account statements between 30 September 2021 and 31 December 2022, the Access Account was described as “Access Account K and N Pike” but described the owner of that account as Nathan; (d) In the statement for the period ending 31 March 2023 and the statements thereafter, the Access Account was once again in Nathan’s name alone, in the same way it was prior to 30 September 2021. At all times, the Access Account was recorded by AMB as owned by Nathan.

78. There is no evidence of the existence of a separate joint account other than Kevin’s evidence in cross-examination. In my view, the documentary record establishes there was no separate joint account, and I make that finding.

Did Nathan or Kevin sign Nathan’s name in the Authority Document?

79. A significant factual issue concerns the signing of the Authority Document. There is no dispute that Kevin inserted his signature above the words “Signature of Authorised Agent”. The dispute between the parties was the identity of the person who wrote “N Pike” above the words “Members Signature”.

80. With respect to Nathan:

(a) In his affidavit evidence, Nathan said he signed the Authority Document; (b) In cross-examination, he described the circumstances in which he signed the Authority Document. As noted earlier, he said he was with a friend, painting a fence and his father wanted him to sign a document. He had to stop painting and move away from the fence to sign the document, which he did at a picnic table. He said he felt very special to be asked to sign a bank document and that is why he remembers it. He did not include that explanation in his affidavit though he said he did mention it to his lawyer; (c) He accepted that he cannot recall the document he signed but remembered that the purpose of the document was to give power to his father over his accounts. He accepted that he could not say with “certainty” that it was his signature on the Authority Document.

81. With respect to Kevin:

(a) The first occasion in which Kevin gave evidence that he wrote “N Pike” on the Authority Document was in cross-examination; (b) Notwithstanding he made four affidavits he did not say in any of those affidavits that he wrote those words. The author of those words was, plainly, an important issue in the proceedings. At a minimum, his lawyers can be taken to have understood its relevance given Nathan’s express reliance on the Authority Document in his Cross-Claim; (c) He said that the bank allowed him to sign Nathan’s name; (d) He said Nathan did not know anything about the account. I have rejected Kevin’s evidence that Nathan did not know anything about the account; (e) It was put to Kevin that he was lying about the document to corroborate his evidence that he had not spoken to Nathan about his account.

82. As noted earlier, Counsel for Kevin submitted that Nathan had only a limited scope to assert that Kevin was lying about signing Nathan’s name on the Authority Document. He submitted that the proposition that Kevin was lying was put to Kevin on the narrow basis, at best, referred to in paragraph [81(e)] above. In making this submission, he relied on what was said by the Full Court of the Federal Court of Australia in Soliman, namely:

[6] In adversarial litigation there is a fundamental principle that a party should not be permitted to submit that a witness has lied on oath without it first being suggested to the witness that his evidence is false, and if the reason for the suggestion is not self-evident, the basis on which the suggestion is advanced so as to give the witness an opportunity to deal with the suggestion.

83. What the Full Court recognised in Soliman was that in certain circumstances there may be specific reasons why a party may wish to submit that a witness is lying. For example, a party may wish to submit a witness in a case is lying to avoid some embarrassment to a friend or relative. In such circumstances, unless the reason for the lie is identified, the witness may not have the opportunity to address the suggestion squarely. However, when a witness is the party advancing a case, a suggestion that he is lying to corroborate certain testimony he has given in support of his case is, in substance, a suggestion that he is lying to support his case.

84. Here, in my view, it was squarely put to Kevin, by King’s Counsel for Nathan, that he was lying that he signed Nathan’s name to corroborate his evidence that he had not spoken to Nathan about the account at ADCU, a matter in itself advanced as relevant to his case. Kevin could have had no doubt that what was being put to him was that he was lying to advance his case. That suggestion, in my view, was self-evident. The suggestion that Kevin was lying necessarily also encompassed Kevin’s assertion that ADCU allowed Kevin to sign Nathan’s name. Accordingly, I reject Kevin’s submission referred to in paragraph [82] above.

85. For the following reasons, I find that Nathan signed his name on the Authority Document:

(a) Although Nathan could not say with certainty that it was his signature on the Authority Document, his evidence was that he did sign it. That is, although he allowed for the possibility that it was not his signature, that was not his position. Given the time that elapsed between the date of the Authority Document, and the time at which Nathan gave his evidence, it is unsurprising that he was not prepared to state the position, on oath, with certitude; (b) Nathan did not resile from his evidence that he recalled signing a bank document in the circumstances set out at paragraph [80] above. There is no other bank document in evidence, nor was the existence of any other bank document suggested by either party, on which Nathan signed his name that gave authority to Kevin to operate accounts at ADCU or AMB; (c) As at the date of the Authority Document, the passbook for the Access Account already had a note “Kevin to operate” written on it. That is, ADCU already knew that Kevin was giving instructions in relation to the Access Account. Whilst there is no direct evidence on the point, I infer that the Authority Document was required by the Bank to regularise, from the Bank’s point of view, Kevin’s operation of an account in Nathan’s name. The Authority Document was addressed to ADCU. The Bank knew, from the 1989 Application, that Nathan was a minor. Notwithstanding that, I infer that ADCU wanted a document signed by Nathan, the relevant member in whose name the account was in, to confirm the authority of Kevin to operate the account (at least with respect to withdrawals). It seems to me that it would have defeated the purpose of the Authority Document for ADCU to allow Kevin to sign Nathan’s name as the giver of the authority. To do so would give ADCU no further comfort that Nathan had given Kevin authority than the position that obtained prior to the execution of the Authority Document; (d) The first time Kevin gave evidence that he signed Nathan’s name was in cross-examination on the third day of the hearing. Part of his explanation for doing so was that Nathan knew nothing of the account. I have found that Nathan did know his father had opened an account for him at ADCU, and I have also found that Kevin spoke to Nathan about his accounts from time to time over the years. In his defence to Nathan’s Cross-Claim, Kevin did not deny that Nathan signed the Authority Document, but rather did not admit he signed it. Although under the Uniform Civil Procedure Rules 2005 (NSW) r 14.26(2), a non-admission operates in the same way as a denial, it is to be expected that if a party knows an allegation of fact is not true, that party will deny it. This is particularly expected if the allegation of fact is that one party signed a document and the opposing party asserts that they were in fact the one that signed the document; (e) My findings in relation to Kevin’s evidence referred to at paragraph [52] above. It is not necessary to find that Kevin was lying in his evidence about the Authority Document. I find his evidence was unreliable and I accept Nathan’s evidence.

86. In making this finding, I have taken into account the importance of this issue to the dispute between the Parties. I am comfortably satisfied, in the sense of real persuasion, that Nathan, and not Kevin, wrote the words “N Pike” on the Authority Document.

Legal basis of the Parties’ claims

Nathan’s Claim

87. In his Second Cross-Claim, Nathan:

(a) Alleges that immediately before the money in the Term Deposit was paid into Court, the account was in Nathan’s name, and he claims he is the legal owner of the Fund and that he is presumed to be the beneficial owner of the Fund; (b) Alternatively alleges that the 1989 Application was made for him by Kevin on his behalf and that, by the Authority Document, he authorised Kevin to sign withdrawal forms/notices on his behalf. In his final submissions, he submitted that the Authority Document gave Kevin general authority to operate his accounts, and not merely an authority limited to withdrawal forms/notices. He says the conduct of Kevin was as agent for him; (c) Alternatively alleges that the funds deposited into the Term Deposit (and in earlier term deposit accounts) were transferred from the Access Account and, by reason of that fact, Nathan was the legal and beneficial owner of the Term Deposit when the Fund was paid into Court; (d) Alleges in the further alternative, that Kevin held accounts under Nathan’s membership number on an express trust by reason of a declaration of trust in the membership application and the subsequent opening of accounts under that number.

88. In his closing submissions:

(a) Nathan submitted that Kevin applied for his membership and opened the Access Account as his agent by reason either of his power as parent or guardian, or pursuant to express authority given by Nathan. Nathan claims that, by reason of those matters, he is the legal owner of accounts in respect of his membership number; (b) Nathan submitted that if Kevin was not, at the time he opened the Access Account, authorised to act as Nathan’s agent, Nathan ratified his conduct. He relied, principally on the Authority Document (the first ratification argument). Further, Nathan relied on other conduct as amounting to ratification, namely the provision of money to Kevin and the discussions concerning his “term deposit” (second ratification argument). Kevin claims that Nathan’s submissions in this regard are not pleaded in Nathan’s Cross-Claim and he objects to Nathan relying on those matters. In my view, the first ratification argument is open to Nathan on the pleading at [18]-[21] of the Second Cross-Claim. However, the second argument is not open on Nathan’s pleading – there is no pleading of any ratification arising from some ongoing conduct of Nathan as submitted in closing submissions. Nothing Kevin did in the conduct of the hearing amounts to an agreement by him that Nathan’s case could be advanced beyond his pleaded claim; (c) Alternatively, Nathan pressed his trust claims.

Kevin’s Claim

89. By his First Cross-Claim, Kevin alleges he entered into an agreement on or about 1 April 2019 with AMB to open an “Investment Plus Account” and AMB agreed to hold $675,000 in the account on certain terms. He alleges that after that time the term deposit was renewed, including with the provision of further deposits by him. He says ultimately the sum held (in the Term Deposit) was paid into Court. In short, Kevin claims he is the contracting party with AMB in relation to the term deposits, including the Term Deposit. As a result, Kevin says he was the legal and beneficial owner of the Fund.

90. Kevin did not plead any alternative claim that, if Nathan was the legal owner of the chose in action representing the Term Deposit (and the Access Account), Kevin remained the beneficial owner by reason of the deposit of money into those accounts by him. Such a claim was expressly disavowed on the first day of the hearing. As a result, Kevin’s claim is singular – that he is the legal owner of the chose in action because he is the contracting party and his beneficial interest follows that legal interest. Accordingly, Kevin’s claim fails unless I find he is the legal owner.

91. Kevin argues that despite the Term Deposit (and all other relevant accounts) being in Nathan’s name, the accounts were mere “nominee” accounts. His use of that term in submissions is not intended to suggest that Nathan held the accounts on trust for Kevin. Rather, his use of that term was to argue that the name of the account did not represent the true contracting party with the bank – that is, the name did not represent the customer in the banker-customer relationship.

Consideration

Banker-Customer Relationship

92. The dispute between the Parties concerns the proper administration of the funds paid into Court by AMB. To determine the proper administration of the Fund, it is necessary to determine the Parties’ interests in the Term Deposit prior to the funds being paid into Court. The relevant property that was represented by the Term Deposit was the contractual right that existed against AMB to be repaid the balance in the Term Deposit. A bank account is an inchoate chose in action consisting “in the contractual right against the bank, i.e., in a debt, but a debt fluctuating in amount as moneys might be deposited and withdrawn.” [4]

93. The Plaintiff appears to submit that the correct characterisation of an equitable interest in a chose in action represented by a bank account, is that the equitable interest is treated by equity as being secured by a charge over the fund or, more accurately, the chose in action, against the bank to the extent of the trust money. [5] In this case, I think the position is different, at least with respect to the Term Deposit. The Term Deposit was a discrete term deposit. That is, it was not a fluctuating debt in relation to which money might be deposited and withdrawn but rather a contract for the deposit of a certain amount and the repayment of that amount together with a definite interest amount. In those circumstances, it seems to me that a trust can exist over the chose in action represented by the contractual right arising under the term deposit. It is not necessary to determine that question because, in either case, if a party does have a sufficient beneficial interest to create an equitable charge or recognition of a trust, he will be entitled to be paid the fund. As noted earlier, Kevin does not claim any equitable interest independent of his claimed legal interest*.*

94. A central question in these proceedings is the identity of the contracting party with AMB in relation to the Term Deposit. Allied to that question is whether, if the contracting party was Kevin, he held the chose in action on trust for Nathan. There is no dispute that it was Kevin who gave AMB the instructions relating to the opening of the Term Deposit and the initial deposit of $675,000 drawn from the Access Account.

95. In Lordianto v Commissioner of the Australian Federal Police (“Lordianto”), [6] the Court of Appeal observed at [48] that “[t]he law is settled that the contract between a customer and a bank is established at the time that a bank account is opened, and does not comprise a series of loans from the customer to the bank each time a deposit is made.” With respect to term deposits, however, each term deposit entered by a customer with a bank is, ordinarily, a separate contract having specific terms governing matters such as the relevant interest rate, the term and the consequences on maturity. [7] Further, each term deposit contract is discharged when the principal and interest is either paid to the depositor or replaced with a new term deposit contract.

Identity of contracting Parties

96. It is well-settled that Australian law applies an objective approach to the construction of contracts. The law does not seek to ascertain the parties’ subjective understanding of a contractual obligation, but what the contractual words convey to a reasonable person in the position of the parties in the circumstances in which the contract is entered into. Evidence of the parties’ subjective intention is usually inadmissible on the question of construction.

97. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd, [8] the High Court stated the applicable principle as follows (citations omitted):

[40] This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.

98. Further, the High Court summarised the core principles of the construction of commercial contracts as follows in Electricity Generation Corporation v Woodside Energy Ltd (“Woodside”): [9]

[35] The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean ... [that] require[s] consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract [which] is facilitated by an understanding ‘of the genesis of the transaction, the background, the context and the market in which the parties are operating’…unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption that the parties intended to produce a commercial result. A commercial contract is to be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’.

99. Similarly, the parties to a contract are identified according to the objective theory of contract. As the Court of Appeal said in Mills v Walsh (“Mills”), [10] this “involves ascertaining the intention of the parties from their communications and the circumstances in their mutual knowledge, including their evident commercial aims and expectations; their subjective beliefs and intentions are irrelevant, save insofar as they are manifest and shared”. [11]

100. With respect to the use of post-contractual conduct of the parties, the Court of Appeal in Mills observed that such post-contractual conduct may more readily be resorted to in identifying parties to a contract than for the purpose of construing contractual terms. [12]

101. Nathan submitted that the name of an account is prima facie evidence that the named customer is a party to the banker-customer contract, and therefore the legal owner of the chose in action. Nathan submitted that there is a rebuttable presumption to this effect and that the presumption, here, shifts both the evidential and legal burden upon Kevin to rebut the presumption. In this regard, he relied on Winau Aust Pty Ltd v LCC Property Development Pty Ltd (“Winau”). [13] In particular, he relied on the following part of Kunc J’s judgment:

[114] Turning to the legal nature of a bank account, the Court accepts the Registrar Generals submissions set out in paragraphs [96] to [99] above. It is something of a legal misnomer to speak of owning a bank account because a bank account is not a type of property. A bank account is, in its basic form, a series of entries in the books of account of a bank recording credits and debits made to the account of a customer in accordance with the terms of the banker-customer contract. While the name of the account may include the name of the customer, that is not conclusive, but will be prima facie, evidence that the named customer is a party to the banker-customer contract. Similarly, the description of an account as being X in trust for Y is not conclusive, but will be prima facie, evidence of the existence of a trust or that X is the trustee. However, such evidence can be rebutted. Just because an account is opened in someone’s name does not necessarily mean that in law it is their bank account or that they are legally entitled to be paid the funds in that account where there is a credit balance.

[115] In this case the banker-customer contract which gave rise to the Westpac Bank Account was not between 183 Eastwood and Westpac because Mr Chan had neither actual nor ostensible authority to enter into such a contract by opening an account in 183 Eastwoods name. Although not strictly relevant to this part of the analysis, it can be noted that even as between Westpac and 183 Eastwood, Westpac would not have been able to rely on the publicly available information that Mr Chan was a director of 183 Eastwood for the reasons identified in paragraph [113] above.

[116] I accept the Registrar Generals submission that this case is on all fours with two English Court of Appeal cases where moneys were paid into a bank account set up by a fraudster in the name of a company: Robinson v Midland Bank Ltd (1925) 41 TLR 402 and Stoney Stanton Supplies (Coventry) Ltd v Midland Bank Ltd [1966] 2 Lloyd Rep 373. The conclusion of Danckwerts LJ in the latter case (at 385) applies equally to the case at bar: the moneys which were paid into the Bank were not the company’s moneys and there was never any relationship of customer and banker in regard to those moneys between the plaintiff company and the defendant bank.

102. I do not accept Nathan’s submissions in this regard. I do not read Kunc J’s judgment in Winau as suggesting that any legal or evidentiary presumption, in the true sense, arises by virtue of the name of a bank account. Rather, in my view, Kunc J was saying that, absent any other evidence, the name of an account will indicate the legal owner of the chose in action. If, however, there is other evidence, all the relevant evidence is to be weighed without the application of a presumption that imposes any onus on a party.

103. In Brun-Smits v Bank of Queensland Limited (“Brun-Smits”), [14] Flick J noted that irrespective of the name in which an account is opened, any question as to the persons entitled to the monies deposited in the account and entitled to draw upon those monies is to be determined as a matter of contract. [15]

104. In this case, where two Parties claim legal ownership of the relevant chose in action, and AMB has been granted relief by way of interpleader, each Party carries an onus to establish to the satisfaction of the Court that the due administration of the Fund requires it to be paid to him.

105. In considering the position with respect to the Term Deposit, it is relevant to consider the legal and beneficial interests in the Access Account given that the funds deposited into the Term Deposit were sourced from the Access Account and one of the ways in which Nathan puts his claim relied on that fact.

Parental Power and the Access Account

106. In August 1989, Nathan was 13 years old. He was, at law, a minor. Kevin was his father. Although Nathan’s parents were divorced by that time, the only material before the Court relating to the terms of the divorce related to property and maintenance issues. Nathan continued to live with his mother after the divorce. There is no evidence of any Court order which limited Kevin’s power as a parent of Nathan. Neither Izabela nor Kevin in their evidence suggested any such limitation.

107. At common law, a parent has the power to administer their child’s property. [16] In my view, that includes the power to open a bank account for and on behalf of the child and in the child’s name to facilitate that administration. Unless the objective circumstances indicate otherwise, and subject to any statutory modification of the common law, in so acting, the parent creates a banker-customer relationship between the child and the bank. The parent’s power is limited because it may be exercised only for the benefit of the child.

108. In this case, in 1989, Kevin, as Nathan’s father exercised this power in two important ways:

(a) First, he applied, for and on behalf of Nathan, for Nathan to become a member of ADCU; (b) Secondly, he instructed ADCU to open an account in Nathan’s name, being the Access Account.

109. In Uttamchandani v Central Bank of India (“Uttamchandan**i”), [17] the Court of Appeal of England and Wales said:

The customer is, prima facie, the person in whose name the account is held. Take by way of example the case of a father with an account at a bank, who arranges for an account to be opened in the name of his son. Suppose he pays in the opening credit from his own account and makes regular monthly transfers thereafter. The customer is the son, and not the father. The son is entitled to assume that so long as his account is in credit his cheques will be met. That is an implied term of the relationship between the son and the bank. Suppose now that the father's account is overdrawn. It would be quite wrong that the son should find his cheques dishonoured, and his credit balance extinguished, because of some alleged right of set-off on the part of the bank.

110. That passage was cited with apparent approval in Saudi Arabian Monetary Agency v Dresdner Bank AG (“Saudi Arabian Monetary Agency”). [18] I consider, however, in both decisions the passage referred to above was obiter dicta. Nevertheless in Uttamchandani, it was considered obiter.

111. Similarly to the statement of Kunc J in Winau, I do not understand the passage in Uttamchandani to be suggesting that a legal presumption arises from the name of an account. Nevertheless, absent an objective basis grounded in the totality of the evidence which indicates that an account opened by a father in a child’s name is not the account of the child, the Court proceeds on the basis that, at common law, a banker-customer relationship is created between the child and the bank, though at common law it is voidable by the child.

112. In this case, I consider the following objective facts are relevant in determining the identity of the customer with respect to the Access Account:

(a) As noted earlier, the 1989 Application had recorded in the box headed “Surname”, the name “Pike” and beside it an initial “N”. In the box headed “Christian Names”, the words “Kevin Pike in trust for Nathan Pike” were recorded. In the box headed “Occupation”, the word “child” was recorded. The address recorded in the application was Kevin’s address in Potts Point, New South Wales. The 1989 Application was an application for membership of ADCU (together with an application to purchase a share in ADCU). However, it is clear that membership alone had no particular value other than the ability, that came with membership, to access and operate facilities provided by ADCU (and subsequently AMB), including an operating account (such as the Access Account) and term deposits offered by ADCU. Those facilities were not available to non-members. Pursuant to the 1989 Application, ADCU issued Nathan’s membership number and that was a different number to Kevin’s member number; (b) Subsequent to the 1989 Application and before the Authority Document was executed, the Access Account was opened. The account was opened in Nathan’s name and was associated with Nathan’s membership number, not Kevin’s number. The passbook contained the words “Kevin to operate”; (c) The Authority Document was signed on 26 October 1990. I have found that both Nathan and Kevin signed the document. Relevantly, Kevin signed the document as “agent”, which, in the context of the document, identifies the person to whom authority is given. The authority, however, is limited. It is an authority to “sign on my [Nathan’s] behalf withdrawal forms/notices on my account number [xxx671]. Specimen signatures appears hereunder”. Nathan has submitted that the authority granted by the Authority Document itself included an authority to enter term deposits. I reject that submission. The document identifies its scope. Further the fact that specimen signatures are referred to supports the proposition that the authority given by the Authority Document, strictly, was directed to withdrawals. It is true, that as matter of practice, ADCU and then AMB appeared to treat the authority as extending beyond the expressed limits. It is to be remembered that the Authority Document is addressed to ADCU – that is, it is a document that gives notice to ADCU to act on the instructions of Kevin on the terms of the Authority Document. Regardless of how ADCU (and then AMB) treated the Authority Document, the authority Nathan gave pursuant to the Authority Document itself was as expressed on the Authority Document. Clearly, no authority is required for deposits in an operating account. However, in my view, before a conclusion could be reached that the Authority Document itself included an authority relating to the opening of term deposit contracts, clearer wording to that effect is required. The relevance of the fact that ADCU, AMB, Kevin, and Nathan treated the Authority Document as providing authority extending beyond the expressed limits will be dealt with later in the judgment; (d) Kevin gave instructions to ADCU (and then AMB) for the opening of terms deposits from time to time and for the application of the matured funds with those term deposits being in Nathan’s name; (e) On the evidence before the Court, the engagement between Kevin and ADCU (and then AMB) did not materially change until 2022 at which point the dispute between Kevin, Nathan, and AMB as to the ownership of the relevant account(s) arose.

113. As noted in paragraph [95] above, the banker-customer relationship arises at the time the relevant account is opened. Accordingly, to determine the identity of the customer in relation to the Access Account, it is necessary to consider the facts at that point in time and determine, objectively, based on those facts, the identity of the customer. Kevin’s subjective intention or thoughts are not relevant unless communicated to ADCU. There is no evidence of the content of any communication at that time in relation to the Access Account other than what can be gleaned from the contemporaneous document. In my view, each document points to Nathan being the relevant customer. That is because:

(a) The 1989 Application is clearly not an application for membership in ADCU for Kevin in his personal capacity. Kevin was already a member of ADCU. The two reasonable objective assessments of the application are that Kevin:

(i) Applied for membership for Nathan; or (ii) Applied for membership as trustee for Nathan (those express words appear on the application);

(b) The counter-party to the banker-customer relationship, ADCU, issued a new member number pursuant to the 1989 Application and did not include Nathan as being subsumed in Kevin’s existing membership; (c) The Access Account, when opened, was opened in Nathan’s name, and was associated by ADCU with Nathan’ s membership; (d) The initial passbook for the account recorded Nathan as the owner and contained the words “Kevin to operate”. [19] Those words would have been entirely unnecessary if the customer was Kevin; (e) Other than the fact that Kevin signed the 1989 Application, gave instructions to ADCU in relation to the opening of the Access Account, and deposited the initial amount to open the account, there is no contemporaneous fact (or document) suggesting he was the relevant customer. The fact that the address on the 1989 Application (and associated to the membership) is Kevin’s address and the fact that he had custody of the passbook, is equivocal. At the time of the 1989 Application and opening of the Access Account, Nathan was a minor and Kevin, his father, was the person dealing with the ADCU (as recorded by the notation “Kevin to operate”) so it would not be unexpected that Kevin’s address would be associated with the membership and that Kevin would have custody of the passbook regardless of whether Nathan was the customer. I do not consider those matters, objectively, pointing one way or the other.

114. In my view, Nathan was, at all times, the customer who was the legal owner of the inchoate chose in action in relation to the Access Account. His membership in ADCU, and his Access Account, were established for him by Kevin, his father. However, Nathan was the legal owner of the chose in action. Although the words “Kevin Pike in trust for Nathan Pike” appear on the 1989 Application, and point to the existence of a trust, in my view, the objective matters referred to above favour a conclusion that Nathan was the legal owner of the inchoate chose in action, rather than Kevin being the legal owner but holding that legal ownership on trust for Nathan. Further, there was no reference to any trust in any of the account names and if Kevin was the legal owner of the account, the Authority Document would not have been required.

115. The fact that Nathan was the legal owner of the chose in action relating to the Access Account is significant in the context of the way each party advanced his case. As noted earlier, Kevin’s case is based on the allegation that he was the legal owner of the Term Deposit (and to the extent relevant, the Access Account) but his claim for a beneficial interest arises only by reason of his alleged legal ownership. Accordingly, on the issues joined by the parties, the finding that Nathan was, at all times, the legal owner of the chose in action relating to the Access Account carries with it, necessarily, that Nathan was also the beneficial owner of that chose in action. As a result, Nathan was the legal and beneficial owner of the debt owed by ADCU, and subsequently AMB, in the amount standing at any particular time in the Access Account.

116. The records in evidence concerning term deposits in Nathan’s name do not pre-date 2011. However, without detailing each transaction, the following relevant matters emerge from the documentary record:

(a) On 20 June 2012, the Access Account was credited $340,000 derived from the maturity of a term deposit and, on 22 June 2012, the Access Account was debited $370,000 in acquisition of a new term deposit; (b) On 22 February 2013, $370,000 was credited to the Access Account derived from a term deposit and, on 27 February, $405,000 was debited in acquisition of a term deposit; (c) On 23 October 2013, $405,000 was credited to the Access Account derived from a term deposit and, on the same day, $442,000 was debited in acquisition of a term deposit; (d) This pattern continued each year between 2013 and 2018. On 28 March 2018, $620,000 was credited to the Access Account derived from a term deposit and on 28 March 2018, $650,000 was debited in acquisition of a term deposit. The amount of $650,000 was rolled over into a new term deposit after being credited and debited on the same day (28 September 2018) on the Access Account; (e) Importantly, on 28 March 2019, $650,000 was credited to the Access Account from the term deposit referred to in paragraph [116(d)] above, and on the same date $675,000 was debited in acquisition of the Term Deposit (given account number 0095) which then was rolled over until its funds were ultimately paid into Court.

117. At all times (other than a period of about one year to which I refer in paragraph [77(c)] above) the Access Account was in Nathan’s name. No material change occurred in that account with respect to the identity of the customer. At all times he was recorded as “owner” of the Access Account.

118. In my view, the consequence of the above matters is that the funds used to acquire the Term Deposit were funds that were legally and beneficially owned by Nathan.

119. Recently, the Court of Appeal, in Le v Yi (“Li v Ye”), [20] addressed principles concerning resulting trusts. Kirk JA (with whom Mitchelmore AJ agreed) said (some citations omitted):

[37] …the presumption is that the person who (relevantly) pays the purchase funds for a property intended that the property be held on trust for them to the proportionate extent of their contribution: Bosanac at [12]-[16], [44], [51], [104]-[111]. Where it is applicable the presumption operates in effect as an onus of proof, and only has work to do insofar as the evidence of actual (objectively ascertained) intention to create a trust or not is truly equivocal: ibid at [13], [64]-[67], and [102]-[110]. Gordon and Edelman JJ described the presumption as “weak” in Bosanac (at [98]). In the same case Gageler J said:

[67] … the presumption … [is] of practical significance only in rare cases where the totality of the evidence is incapable of supporting the drawing of an inference, one way or the other, on the balance of probabilities about what contributors and purchasers actually intended when they participated in the purchase transaction.

[38] A presumptive resulting trust can thus be understood as an express trust established by way of a particular evidentiary route in particular circumstances. The focus is on the manifest intentions of those parties who are relevant to determination of whether or not a trust was intended to be created. That will involve consideration of the intention of the person providing the funds: Nelson v Nelson (1995) 184 CLR 538 at 547 and 586; [1995] HCA 25; Bosanac at [13].

120. Further, as explained below, the relevant intention is to be determined objectively at the time that the asserted trust was created. In this regard, Gordon and Edelman JJ said in Bosanac v Commissioner of Taxation (at [113]) [21] that ‘[a]part from admissions against interest … [s]ubsequent events and conduct are otherwise not admissible.’

121. Given that Nathan was the legal and beneficial owner of the chose in action relating to the Access Account, he was, at law, the provider of the funds for the purpose of the acquisition of the Term Deposit. Accordingly, it is his intention at that time that is relevant. There is no evidence, nor was it suggested or argued by Kevin that Nathan gifted Kevin those funds and there is no basis upon which the Court could draw such an inference. There is no allegation by Kevin that Nathan agreed that Kevin could use the funds in the Access Account to acquire a term deposit in his own beneficial interest. To the extent that Kevin and Nathan spoke about accounts at ADCU (and AMB), those accounts were described between them as Nathan’s accounts (see for example, the email referred to in paragraph [34(i)] above). There is no objective evidence supporting an inference that Nathan intended that his funds be used for the purchase of a term deposit such that he would not retain the beneficial interest in those funds. To the contrary, the Authority Document by which Kevin was given authority to make withdrawals on the Access Account owned by Nathan is an objective matter from which the Court can infer, absent contrary evidence, that Kevin’s authority was to be used in the interests of Nathan. It is not suggested by Kevin that the Authority Document entitled him, as agent, to apply Nathan’s money for his own interests.

122. Accordingly, even if it were the case that Kevin was the contracting party for the Term Deposit, he obtained the funds to acquire that term deposit from Nathan’s Access Account in the circumstances referred to above. In those circumstances, even if Kevin was the legal owner of the chose in action relating to the Term Deposit, I readily draw an inference that he held that chose in action on trust for Nathan. I do not consider that there is any cogent evidence that Kevin arranged the Term Deposit in his own interest rather than Nathan’s.

123. Further, and in any event, the presumption of a resulting trust in such circumstances, as explained in Li v Ye*,* provides a further evidentiary route by which Nathan’s intention (Nathan being the provider of the funds) can be determined. The presumption (or onus as described in Li v Ye) is capable of being rebutted by Kevin. [22] However, considering the matters set out in [112(a)-112(c)] and [113], in my view, there is insufficient evidence to rebut the presumption. There is no evidence supporting the proposition that Nathan intended the money in the Access Account to be used to acquire term deposits which he would not beneficially own. [23]

124. In the result, regardless of the legal owner of the chose in action concerning the Term Deposit, Nathan is the beneficial owner of the chose in action and as such is entitled to be paid the money paid into Court by AMB.

125. If I am wrong about parental power to open an account in the name of a minor child as set out above, then I consider that Nathan nevertheless succeeds in his claim on either of the following alternate bases advanced by him relating to agency.

Agency and the Access Account

126. As set out in paragraphs [31(b)] , [108], and [113] above, Kevin signed the 1989 Application on behalf of Nathan. Nathan became a member of ADCU (and subsequently AMB) by reason of the 1989 Application. Kevin then, pursuant to that membership, opened on behalf of Nathan, the Access Account.

127. Unless Kevin had parental authority to do so, or was otherwise authorised by Nathan (or became authorised by ratification), he was not acting as Nathan’s agent, although he acted ostensibly on Nathan’s behalf. The objective matters referred to in paragraphs [112(a)-112(c)] and [113] above establish that he did not purport to act personally.

128. In Tonna v Mendonca, [24] the Court of Appeal described the two essential elements of any agency agreement, in the following way (citations omitted):

[377] …first, the consent (or assent) of both principal and agent; and second, the authority given to the agent by the principal to act on the principal’s behalf…. (Arguably, there is a third element being a principal’s control over the agent’s actions; however, in Australian law, the alleged control element is “neither crucial to agency nor is it independent of the authority element” …

[378] Law of Agency states that “consent (or assent) requires some acceptance by the agent of a mandate, whether or not formal or contractual, from the principal”. The principal “must intend that the agent will act for him or her and the agent must intend to accept the authority and act on it”. An intention to create an agency relationship “may be manifested simply by placing another in a situation in which, according to the ordinary rules of law, or according to the ordinary usages of mankind, that other is understood to represent and act for the person who has so placed him”.

129. In National Australia Bank Ltd v Dionys, [25] the Court of Appeal (Sackville AJA, McFarlan JA and White J agreeing) identified the following broad principles concerning agency and ratification:

[124] The operation of the doctrine of ratification was explained by Isaacs J in Davison v Vickery’s Motors Ltd (In Liq) as follows:

(1) The general rule is that no person can become a party to a bilateral contract unless he enters into it personally or by an authorized agent.

(2) An exception is recognized where a person ratifies an agreement made by another as for him but without his antecedent authority.

(3) On ratification, and not before, the agreement is as a general rule deemed by a fiction to have been made by his antecedent authority to the person actually making it.

130. In Bennett v Strauss, [26] the Court of Appeal said the following with respect to the ratification of an unauthorised act (citations omitted):

[47] In the first place, ratification causes a relationship of principal and agent to come into existence retrospectively. Thus, where a person (A) has acted without the authority of another person (P) in making a contract on their behalf with a counterparty (C), that other person (P) may, by subsequent conduct, cause the first person (A) to be regarded as having been his or her agent when the contract was made, even though a relationship of principal and agent did not exist at that past time.

[48] Where such a counterparty (C) seeks to enforce such a contract against the supposed principal (P), it is essential that the acts of the actor (A) in truth amounted to the immediate making of a contract. Only if the counterparty (C) establishes that the acts of the actor (A) were of that quality is there any question of the supposed principal (P) being fixed with contractual liability through ratification.

[49] The counterparty (C) must next establish that the person who acted (A) did not “assume” or “profess” or “purport” to act in his or her own right and for his or her own benefit, but rather “assumed” or “professed” or “purported” to act for the supposed principal (P). That supposed principal will usually be an ascertained person but it may not be necessary for the person’s precise identity to be known at the time of the contract.

[50] There can be no ratification by an undisclosed principal, that is, where the actor (A) appears to be contracting for themself and the counterparty (C) has no notice that the actor is acting in a representative capacity. This was authoritatively established in Keighley.

[51]: Only if all these conditions are satisfied in relation to the course of conduct between the actor (A) and the counterparty (C) does any question arise as to whether subsequent conduct of the supposed principal (P) amounted to ratification causing, first, the actor (A) to be seen retrospectively as the agent of the supposed principal (P) (who, in turn, comes to be seen retrospectively as the principal for whom the actor acted) and, secondly, the rights and liabilities under the contract made between the actor (A) and the counterparty (C) to be seen retrospectively as rights and liabilities as between the counterparty (C) and the now recognised principal (P).

131. Whether conduct of a principal amounts to ratification is a question of fact. The conduct, however, must be unequivocal. Acceptance of the benefit of the unauthorised act of the agent with knowledge that the benefit flows from that act will ordinarily suffice. [27] Suing on a transaction brought about by an agent acting beyond authority will also ordinarily mean ratification of the unauthorised transaction. [28] It is possible that a principal’s failure to act, or his or her mere silence, may constitute ratification of the unauthorised acts of the putative agent. The authorities recognise that in some circumstances, ratification can be inferred from silence or acquiescence. [29]

132. Nathan submitted that he appointed Kevin as his agent when he applied for membership for him at ADCU and opened the Access Account. Alternatively, he submitted that if Kevin was not at law authorised at those times as his agent, he subsequently ratified that conduct.

Agency

133. Nathan relied on the following for his submission that Kevin was his agent in relation to the 1989 Application and opening of the Access Account:

(a) Kevin’s position as his father; (b) Nathan’s evidence that his father spoke to him and proposed opening an account at ACDU for him and his agreement to that proposal; (c) Nathan’s evidence that he collected money in his piggy bank and gave it to Kevin to bank in an account for Nathan.

134. Nathan relied on the first two matters for his submission that he gave express authority and relied on the third matter (on its own or together with the second matter) to submit that the Court should be satisfied that authority can be implied or inferred. I consider that Nathan’s claim that Kevin was his agent, on the basis of the first two matters, referred to above at paragraphs [133(a)-133(b)] , is within his pleaded claim at paragraphs [18]-[20] of Nathan’s Cross-Claim.

135. Nathan gave evidence that sometime after Kevin moved to Sydney, they had a conversation in which Kevin suggested that he would be better off having his money deposited at ADCU because it paid a higher interest rate and it would be easier for Kevin to look after it for Nathan. Nathan’s evidence is that he agreed. Whilst Nathan does not put a date on that conversation, I infer that it was reasonably proximate to the date on which the Kevin signed Nathan’s membership application and opened the Access Account. At that time, Nathan was 13 years old. Kevin denies that he had a conversation with Nathan to this effect.

136. At the time, there was an account in Nathan’s name at the CBA. There is no dispute between the parties that the amount in the CBA account was transferred to the Access Account. I have earlier rejected Kevin’s evidence in relation to the CBA account insofar as he claims he did not mention it to Nathan (see [70] above). Further, I have rejected Kevin’s evidence generally that he did not discuss bank accounts in Nathan’s name with him (see [70] above). Nathan was cross-examined on the conversation referred to in [135] above to the effect that he did not have a clear recollection of such a conversation, but it was not put to him that it did not occur. I considered that Nathan was being truthful when he stated that although he cannot recall the precise words used, the effect of the conversation was as he stated. His evidence, in my view, has a ring of truth to it. That is, a father suggesting to his son where he should have a bank account and that the father would be able to look after it for him. I accept Nathan’s evidence in this regard. For the reasons set out in paragraphs [49]-[52] above, I prefer and accept the evidence of Nathan in relation to this conversation.

137. At the time of the conversation concerning the moving of Nathan’s account from CBA to ADCU, there was no suggestion that Nathan himself would cause that transfer. Accordingly, his agreement to his father’s suggestion, must, objectively, be understood as Nathan giving his father express authority to take the steps required to achieve that transfer. In light of the conversation referred to in paragraph [135] above, and his position as Nathan’s father, Kevin clearly accepted that authorisation.

138. Accordingly, I find that Kevin was acting as Nathan’s express agent when he obtained membership at ADCU pursuant to the 1989 Application and when he instructed ADCU to open the Access Account in Nathan’s name.

139. The Minors (Property and Contract) Act 1970 (NSW) governs the binding nature of a civil act carried out by a minor. Relevantly it provides the following:

(a) A civil act for the purposes of the Act, includes ‘any act relating to contractual or proprietary rights or obligation or to any chose in action’; [30] (b) Where a minor participates in a civil act, the civil act is not binding on the minor except as provided by the Act; [31] (c) Where a minor participates in a civil act and his or her participation is for his or her benefit at the time of his or her participation, the civil act is presumptively binding on the minor; [32] (d) That the Act does not make presumptively binding on a minor a civil act in which the minor participates, or appears to participate, while lacking, by reason of youth, the understanding necessary for his or her participation in the civil act; [33] (e) A person under twenty-one years may appoint an agent, and may, by that agent, participate in any civil act. Any civil act participated by a minor by an agent has no greater validity or effect as against the minor than it would have if done by the minor without an agent. [34]

140. Nathan was 13 years at the time of the appointment of Kevin as his agent in the manner described above. He had the power to appoint Kevin as his agent by reason of s 46 of the Minors (Property and Contract) Act. Kevin’s signing of the 1989 Application to obtain membership in ADCU was a civil act, within the meaning of s 6, as it related to contractual rights arising from membership, and his act in opening the Access Account plainly related to a chose in action. So too was Nathan’s appointment of Kevin as his agent for the same reasons. Each act of Kevin in this regard was for the benefit of Nathan in that it was conducted to facilitate the transfer of funds from the CBA account to ADCU and also conducted to facilitate a bank account for Nathan perceived to be better for Nathan (as this was the import of the conversation between Nathan and Kevin). Similarly, Nathan’s act of appointing Kevin as his agent was for his own benefit for the same reasons. Accordingly, by reason of the combination of ss 46 and 19, Kevin’s acts as agent in signing the 1989 Application and in opening the Access Account are presumptively binding on Nathan. There is no basis, in the evidence, to find that Nathan, at 13 years of age, lacked the necessary understanding to participate in the act of agreeing to have Kevin open an account for him at ADCU.

141. As a result, Nathan was and is the legal owner of the Access Account. I repeat, on this analysis, the reasoning above in [122]-[124] such that, again, regardless of who is the legal owner of the chose in action represented by the Term Deposit, Nathan is the beneficial owner and entitled to be paid out the money held by the Court.

Ratification

142. If, contrary, to my findings, Kevin was not authorised as Nathan’s agent to open the Access Account at the time he opened it, Nathan says that he subsequently ratified Kevin’s conduct. In paragraph [88(b)] above, I set out my finding that Nathan’s claim that the Authority Document was ratification of Kevin’s conduct is within the bounds of his pleaded case.

143. At the time of the Authority Document, Nathan was 14 years of age. As reflected earlier, Nathan’s evidence is that whilst he could not recall the precise document he signed, he recalled signing a document to give his father authority to operate his bank account. I have accepted his evidence. Regardless of the scope of the authority itself, the conduct of Nathan in giving his father authority over “his bank account” is clear and unequivocal conduct amounting to approval of the opening of the account, and an adoption of the account. The conduct of Nathan can only be explained as a ratification of Kevin’s conduct in applying for membership for Nathan at ADCU and opening the Access Account.

144. I have earlier found that Kevin did not open the Access Account in his own interests. That is, he was opening it on behalf of Nathan (see paragraphs [113-114], [135]-[138] above). Kevin’s conduct in this regard was “done for and in the name of the supposed principal [Nathan]”. [35]

145. Nathan’s act of signing the Authority Document is a civil act for the purposes of the Minors (Property and Contract) Act 1970 because it relates to contractual rights concerning the Access Account and, at a minimum, relates to the chose in action constituting the right of the account holder against ADCU. Moreover, if Nathan’s act is understood as his ratification of Kevin’s conduct in opening the Access Account, similarly, that act is a civil act for the same reasons.

146. Whilst Nathan could not recall the precise document he signed, he did know, at the time, the purpose of the document – namely, to allow his father to operate what he understood was his bank account. As he said, he trusted his father and was, plainly, happy to sign such a document. I have no proper basis to find that at age 14, Nathan, by reason of his youth, did not have the necessary understanding for his participation in the civil act of signing a document to give his father authority to conduct certain acts on what he understood was his bank account or to adopt the existence of that account.

147. Nathan’s act in signing the Authority Document was for his benefit at the time as it gave authorisation to his father to deal with his bank account (whatever the limits of the authority). He trusted his father and wanted his father to manage his account. Objectively, Nathan’s act was to his benefit because it facilitated the operation of his bank account by someone he trusted, namely, his father.

148. Accordingly, by reason of the above, pursuant to s 19 of the Minors (Property and Contract) Act, Nathan’s civil acts described above are presumptively binding on him. As a result, if, contrary to my reasoning above, Kevin was not authorised when opening the Access Account, Nathan ratified that conduct by the Authority Document with the consequence that Kevin is treated in law as having been retrospectively authorised. Accordingly, Nathan is the legal owner of the chose in action constituted by the Access Account.

149. I repeat, on this analysis, my reasoning in paragraphs [122]-[124] such that, again, regardless of who is the legal owner of the chose in action represented by the Term Deposit, Nathan is the beneficial owner and entitled to be paid out the money held by the Court.

150. Separately to the above reasons, by Nathan bringing this claim, and claiming in his Cross-Claim that he was the “owner” of the Access Account, he has also by that conduct, as an adult, ratified Kevin’s acts in obtaining membership for him and opening the Access Account for him.

Post-contractual conduct

151. As noted earlier, reliance upon post-contractual conduct is more readily available in the determination of the identify of contracting parties. I have made my findings without the need to resort to post-contractual conduct.

152. Nevertheless, there are two acts carried out by Kevin after the opening of the Access Account (and several term deposits) that support the finding that he was not a party to the contract relating to the Access Account.

153. First, Kevin’s failure to include any account in Nathan’s name in his Centrelink application referred to in paragraph [31(f)] above. As reflected above, Kevin’s explanation for his failure shifted. I was not impressed with his evidence in this regard, and I consider he prevaricated. I had the distinct impression that his initial response that he did not include the accounts because he was “managing them” and the “money was not for [me] at that stage” is closer to the truth – that is, he did not regard the accounts as “his” because they were in the name of Nathan and he was only managing them. If he was the true owner of the accounts (and in truth the contracting party), I do not accept that he thought that he did not need to include those accounts in the Centrelink application. In my view, he did not include those accounts because he did not consider them as his accounts (even if he considered the money deposits, in lay terms, as his because they emanated from him).

154. Secondly, the fact that subsequently to opening the Access Account, he did not include the interest earned on any account in Nathan’s name on his own tax returns. I infer this was the case because in his evidence, he said that, with respect to the payment of tax, he never informed the Australian Taxation Office that the accounts in Nathan’s name belonged to him. He said that was so because he was managing the account and that “it didn’t belong to me”. He caused a tax file number to be issued for Nathan and gave that number to ADCU and AMB. Kevin’s conduct in this regard is entirely consistent with Kevin not being the contracting party with respect to the Access Account and the term deposits in Nathan’s name.

The Term Deposit

155. Both Kevin and Nathan claim legal ownership of the chose in action represented by the Term Deposit. I now address that issue.

156. I have found that Nathan was, at all times, the legal owner of the chose in action represented by the Access Account. I have found that Nathan signed the Authority Document.

157. Regardless of the express limits of the Authority Document itself, it is beyond question that prior to the opening of the Term Deposit, ADCU and AMB permitted Kevin to draw on the Access Account and open term deposits in Nathan’s name with the drawn funds. I infer it did so pursuant to the Authority Document because, as noted earlier, in 2022, it informed Kevin that he had been removed as an authority on the Term Deposit but not the Access Account – there is no other document provided to ADCU/AMB by which he was given any authority.

158. It is important to recall that the Authority Document was a document signed by Nathan and addressed to ADCU. That is, it was a document informing ADCU that Nathan had authorised Kevin to take the steps set out in the document and for ADCU to act upon that notification.

159. However, as between Nathan and Kevin, the scope of the agency is not limited by reference to the Authority Document alone. I have accepted Nathan’s evidence that he agreed with Kevin’s proposal that he would be better off having his money deposited at the ADCU because it paid a higher interest rate and that it would be easier for Kevin to look after it for Nathan (see paragraphs [135]-[137] above).

160. The conversation between Nathan and Kevin occurred in a context where:

(a) They were father and son; and (b) At the time when Kevin had already opened an account for Nathan at CBA and was managing that account.

161. On the terms of the conversation I have accepted, Nathan was plainly agreeing to have Kevin “look after” Nathan’s money once an account was opened at ADCU.

162. In my view, the following matters support a conclusion that Kevin was Nathan’s agent, not only in relation to the opening of the Access Account (as I have found above), but more broadly with respect to accounts opened for him by Kevin with ADCU (and later AMB), including the opening of the Term Deposit:

(a) The terms of the conversation; (b) The context of the conversation as identified in paragraph [135] above; (c) The subsequent Authority Document which, despite its terms, Nathan understood it to give Kevin “power over his account”.

163. Although it is true that the Term Deposit was opened approximately 30 years after the 1989 Application, the conversation and the Authority Document, there is no evidence of any change of position as between Kevin and Nathan prior to the opening of the Term Deposit.

164. The agency referred to above is sufficient to underpin a finding that Nathan was the legal owner of the chose in action represented by the Term Deposit. I repeat my findings in relation to the Minors (Property and Contracts) Act set out in paragraph [140] above.

165. I accept that the following objective facts may support the proposition that Kevin was the contracting party in his own right in relation to the Term Deposit:

(a) He was the person who instructed the bank to open that account; (b) The account statement in relation to the Term Deposit was addressed to Nathan but at Kevin’s address; (c) Nathan’s membership address was Kevin’s address; (d) Kevin had historically, alone, dealt with ADCU and AMB and had possession originally of the relevant passbooks and subsequently internet banking access.

166. However, in my view, notwithstanding those matters, the following objective matters and surrounding circumstances point to Nathan being the legal owner of the chose in action relating to the Term Deposit:

(a) Prior to the Term Deposit being opened, Nathan was the legal owner of the Access Account; (b) At all times prior to the opening of the Term Deposit, Nathan was the named owner of the Access Account; (c) ADCU required the Authority Document, and it was signed by Nathan; (d) ADCU and AMB, at all times prior to the opening of the Term Deposit, permitted Kevin to draw funds from the Access Account and utilise those funds in the opening of term deposits – however, those term deposits were in Nathan’s name; (e) The Access Account and all prior term deposits in Nathan’s name were associated, on ADCU and AMB statements, with Nathan’s membership, not Kevin’s membership. (f) The Term Deposit itself was in Nathan’s name.

167. Although I do not regard Winau and Uttamchandani as identifying a legal or evidentiary presumption that the named person on an account is the owner of the account, I do accept that the naming of an account is prima facie evidence that the “named customer is a party to the banker-customer contract”. [36]

168. In my view, the matters referred to in paragraph [166] above, separately and in addition to, the matters referred to in paragraph [162] above, establish that Nathan was the legal owner of the chose in action represented by the Term Deposit:

169. The conduct of Kevin referred to in paragraph [153]-[154] above supports this finding.

170. In the absence of any equitable claim being brought by Kevin that is divorced from the legal title, I find that Nathan was both the legal and beneficial owner of the chose in action represented by the Term Deposit.

Trust Claim

171. Finally, Nathan also puts his claim, in the alternative, on the basis that he is the beneficial owner of the chose in action represented by the Term Deposit on the basis of an express trust arising from the 1989 Application. Given my conclusions set out above, Nathan’s claim in this regard does not arise. However, if contrary to my findings, Kevin was in fact the legal owner of the chose in action represented by the Term Deposit, Nathan’s express trust claim would arise. I now consider that claim on that assumption.

172. I have also earlier determined that although 1989 Application contained the words “Kevin Pike in trust for Nathan Pike”, the objective matters to which I have referred in paragraphs [112-114] above, favoured a finding that Nathan was the legal owner of the relevant chose in action, rather than beneficial owner pursuant to a declaration of trust. My analysis below assumes that view was not correct.

173. Recently in Irwin v Pamplin (No 4), [37] at [302], Henry J summarised the principles for the creation of a trust as follows (citations omitted):

1. in order to constitute a trust, there are three critical requirements, namely, certainty of intention, certainty of subject matter, and certainty of object or beneficiary;

2. an intention to create a trust may be express and in writing, but may also be inferred from the terms of conversations, conduct or the surrounding circumstances; 3. in order to infer intention, the Court looks to the nature of the transaction and the whole of the circumstances attending the relationship between the parties and known to them; and

4. a court may more readily find an informal oral declaration of trust has passed an equitable interest to a beneficiary when it is “dealing with simple people, unaware of the subtleties of equity”.

174. In Ye v Li, the majority noted that (citations omitted):

[35] The intention to create a trust is ascertained objectively; it is not necessary that the settlor subjectively appreciates that the arrangements will have the equitable effect of creating a trust so long as they hold the requisite intention…These matters are to be established on the balance of probabilities in the usual manner. A previous reluctance to draw an inference that a trust was intended no longer applies …

175. As I have noted earlier:

(a) Kevin did not sign the 1989 Application for his own benefit. That is, he was seeking a membership in the interests of Nathan; (b) The 1989 Application expressly recorded, against the section relating to “Christian name”, “Kevin in trust for Nathan”. Kevin was not sure he wrote those words, but he signed the application with those words and must be taken to have adopted them. At no stage did he suggest he was unaware of those words when he signed the document; (c) The fundamental purpose of the membership application was to obtain access to the facilities offered by ACDU, and in particular, operational accounts and term deposits; (d) ADCU gave the membership pursuant to this application a separate number to Kevin’s own membership. This is an objective matter indicating that the membership was different to Kevin’s personal membership; (e) Accounts were then opened and tied to that membership number, initially the Access Account and subsequently term deposits, including the Term Deposit.

176. If contrary to my findings, Kevin was the legal owner of the chose in action represented by the Term Deposit and the Access Account, I must consider whether the elements of a trust set out in paragraph [173] above are made out and do so now:

(a) The application signed by Kevin expressed the application as one being by Kevin in trust for Nathan. Although that statement is not determinative, it is prima facie evidence of an intention by Kevin to hold property on trust for Nathan, and I have found that Kevin did not sign the application for his own benefit but rather on behalf of Nathan; (b) The subject matter of the putative trust, assessed objectively, was the chose(s) in action that would arise under the membership the subject of the application, it, or they, being the whole purpose of the membership; (c) The object of the putative trust was plainly Nathan.

177. In my opinion, on the assumption that my earlier analysis that Nathan was the legal owner of the choses in action represented by the Access Account and Term Deposit is not correct, then in my opinion, the elements of an express trust are made out.

178. In my view, there was not a separate trust in relation to each account opened in Nathan’s name. As noted above, each term deposit was a separate contract. Nevertheless, viewed objectively on the above assumptions, a trust was created over all accounts opened under the membership created by the 1989 Application. The trust was perfected by the opening of the Access Account in 1989 – that is, property by way of the chose in action represented by that account formed property of the trust.

179. Thereafter, each chose in action under the membership created by the 1989 Application was trust property. A similar conclusion was reached by the High Court in Thomson v Federal Commissioner of Taxation (“Thomson”). [38] Webb J concluded, on the facts of that case, that a single trust was created which comprised a “succession of choses in action” rather than “a succession of trusts”. [39] In the present case, I consider this to be the position because:

(a) The Access Account and each subsequent account was opened under the same membership number; (b) The Access account and all term deposits were in Nathan’s name and ordinarily, money flowed between the term deposits and the Access Account; (c) The purpose of the membership was to obtain access to an operating account and, if desired, term deposit accounts; (d) There is no evidence to support any change in the intention of Kevin after completion of the 1989 Application in relation to accounts opened under that membership and prior to the opening of the Term Deposit; (e) The express declaration of trust was recorded in the 1989 Application (that is, in the membership application); (f) Kevin had a military bank account which was opened under a separate membership number that existed before Nathan’s membership number.

180. Accordingly, if contrary to my findings, Kevin is the legal owner of the choses in action represented by the Access Account and the Term Deposit, then I would uphold Nathan’s alternative trust claim. On that basis, Nathan would be entitled to be paid the money held by the Court.

Kevin’s Case

181. As noted earlier, Kevin submitted he was the legal owner of the chose in action represented by the Term Deposit (and the Access Account). I have found otherwise. For completeness, I will specifically deal with the matters raised by Kevin. Kevin relied on the following matters:

(a) He was, until 2022, the only person who dealt with, and gave instructions to, ADCU and AMB with respect to:

(i) The application for membership; (ii) The opening of the Access Account; and (iii) The opening of all term deposits (including what would happen when they matured);

(b) He deposited all the monetary contributions to the Access Account (which in turn primarily funded the term deposits) together with money separately contributed to term deposits; (c) The address on the membership application and the account statements was his address (except when Nathan changed that in 2022); (d) The indicia of ownership, namely the passbooks and then subsequently internet banking was (until 2022) in the hands of Kevin and not Nathan; (e) The Bank did not have Nathan’s proof of identification until well after the opening of the Term Deposit.

182. In short, Kevin submitted, as a matter of contract, that he was the contracting party with ADCU (and then AMB) such that he was the customer in the banker-customer relationship. As a result, he claims he was the legal holder of the relevant chose(s) in action and that the beneficial ownership follows his legal ownership.

183. Further, as a matter of subjective intention, Kevin’s evidence was that he intended to have the money in the accounts in his sons’ names form part of his estate on death and for the money to be split evenly amongst his three sons. His will, signed in March 2013, is consistent with that subjective intention because it contained the following bequeath: “I give the rest of my estate both real and personal to those of my sons … who survive me … including any monies in accounts and equities held or administered by me in mine, or my sons’ names”. Because the money in those accounts, came from him, it seems, at a subjective level, Kevin considered, at least at the time he prepared his will, that the money in the accounts (as opposed necessarily to the accounts themselves) was “his”.

184. The difficulty with Kevin’s submissions is that, putting aside his subjective intention which cannot control the legal outcome, each of the matters relied upon and referred to at paragraph [181(a),181(c)181(d)] are equally consistent, as an objective matter, with Kevin having engaged with ADCU and AMB as Nathan’s parent, his agent (whether authorised at the time or not authorised but later ratified) or his trustee. The fact that it was Kevin that dealt with ADCU and AMB, and that he had the passbooks/internet account, and his address was the address for the accounts does not persuasively indicate, of themselves, that he was contracting on his own account. The fact that Kevin contributed all, or at least almost all, the money into the Access Account is relevant as an objective matter, however, it must be borne in mind that Kevin brings no equitable claim arising from the fact that he so contributed. The relevance of the significant contributions by Kevin, as an objective matter, is less significant in relation to the Access Account because the identity of the contracting party is to be determined as at the date of contract and at that time, the account was opened with a modest initial contribution. The fact that AMB only latterly sought to obtain identification documents concerning Nathan to comply with certain legislative requirements does not seem to me to be material in identifying the parties to the contract at the time the contract was formed.

185. The matters relied upon by Kevin are relevant to an assessment of the objective circumstances going to the identity of the customer (and contracting party) in relation to the relevant accounts. I have taken all those matters into account in forming the views and conclusions expressed on the legal and beneficial ownership of the choses in action represented by the Access Account and the Term Deposit.

Nathan’s claim for payment by Kevin of AMB’s costs

186. When granting relief by way of interpleader, the Court:

(a) Ordered that AMB’s costs be paid out of the funds to be paid into Court before those funds were paid into Court; (b) Found that it was appropriate that Nathan pay Kevin’s costs of the interpleader application. Kevin was put to unnecessary expense in addressing the application – to which he consented – due to Nathan’s opposition. As Nathan’s opposition was unsuccessful, he was ordered to pay Kevin’s costs; (c) Reserved to be dealt with at final hearing whether either party should be ordered to reimburse the Fund.

187. In short, Nathan submitted that AMB’s costs, being a burden on the Fund, were caused by Kevin’s unsuccessful substantive claim to the Fund. The juridical basis for a claim for reimbursement of the Fund was not articulated in Nathan’s Cross-Claim, however, the decision in Brown v Forrest (“Brown”) [40] supports the existence of power to order such reimbursement (indeed it is described as a usual order). [41]

188. The present case is distinguishable from Brown. The action taken by the stakeholder in Brown does not appear to have been opposed by either of the competing claimants. In this case, it was Nathan who opposed AMB’s interpleader application. As a result, AMB was required to fully prepare a hearing on its interpleader application including the preparation of detailed affidavit evidence and submissions. Because of Nathan’s opposition, he and Kevin both filed evidence and made submissions to the Court. Nathan, in part, alleged that AMB was not neutral in its application and “colluded” with Kevin. Nathan did not make good those allegations.

189. Ultimately, the Court concluded that Kevin was put to unnecessary expense by reason of Nathan’s unsuccessful opposition to AMB’s interpleader application. I infer that AMB was also put to, at least, some unnecessary expense because of that opposition. Kevin had consented to the interpleader relief that was sought and had Nathan done so, it may well have been that AMB’s costs would have been minimal.

190. In those circumstances, I do not consider it appropriate to accede to Nathan’s submission that Kevin reimburse the Fund and I will not make such an order.

Costs

191. During the hearing, Nathan indicated that he wished to be heard on the appropriate costs orders to be made at judgment.

Conclusion

192. For the foregoing reasons, Nathan is entitled to be paid the money held by the Court pursuant to the interpleader relief granted to the AMB.

193. The Court makes the following orders:

194. The sum of $728,324.49 paid into the Court pursuant to orders made by Andronos SC DCJ on 20 August 2024 and all interest accrued thereon be paid to the Second Cross-Claimant (Nathan);

195. The First Cross-Claim is dismissed.

196. The Parties are to inform my Associate within 7 days if they require an oral hearing on the question of costs. If the Parties indicate that they do not require an oral hearing, and are content for the Court to deal with the question of costs on the papers and in Chambers, then:

(a) Nathan is to serve his submissions on costs, together with any affidavits in support, within 7 days of notice being given by both Parties to my Associate that an oral hearing is not required. Without leave, the submissions are to be no more than 5 pages; (b) Kevin is to serve his submissions on costs, together with any affidavits in support within 7 days of receipt of Nathan’s submissions. Without leave, such submissions are to be no more than 5 pages.

**********

Endnotes

(1959) 101 CLR 298; [1959] HCA 9.

(1893) 6 R 67.

[2009] FCAFC 159 at [6].

Russell v Scott (1936) 55 CLR 440 at 450-451 (Dixon and Evatt JJ); [1936] HCA 34. See also, Lordianto v Commissioner of the Australian Federal Police (2018) 100 NSWLR 630; [2018] NSWCA 199 at [50]-[51].

Re French Caledonia Travel (2013) 59 NSWLR 361; [2003] NSWSC 1008 at [151].

(2018) 100 NSWLR 630; [2018] NSWCA 199.

Thomson v Federal Commissioner of Taxation (1949) 80 CLR 344 at 348; [1949] HCA 63.

(2004) 219 CLR 165; [2004] HCA 52.

(2014) 251 CLR 640; [2014] HCA 7.

[2022] NSWCA 255.

Mills at [73].

Mills at [73].

[2020] NSWSC 434.

[2015] FCA 362.

Brun-Smits at [13]. See also, Re Hett, Maylor & Co Ltd (1894) 10 TLR 412; Saudi Arabian Money Agency v Dresden Bank AG [2004] EWCA Civ 1074; Stoney Stanton Supplies (Coventry) Ltd v Midland Bank Ltd [1966] 2 Lloyd Rep 373.

Perry v Perry [2021] NSWSC 1669 at [248]; Fountain v Alexander (1982) 150 CLR 615 at 626 (Gibbs CJ), 634 (Mason J); [1982] HCA 16; Hewer v Bryant [1970] 1 QB 357 at 372-373.

(1989) New Law Journal 222.

[2004] EWCA Civ 1074.

In this regard, Kevin relies on Haythorpe v Rae [1972] VR 633.

[2025] NSWCA 227.

(2022) 275 CLR 37; [2022] HCA 34.

The Venture [1908] P 218; Bateman Television Ltd v Bateman [1971] NZLR 453.

In the absence of agreement (and no such relevant agreement is alleged by Kevin), the relevant intention for the purposes of rebutting the presumption of a resulting trust is that of the provider of the relevant funds: Pearson v Pearson [1961] VR 693 at 697; J D Heydon and M J Leeming (eds), Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) ch 12, [12]-[13] fn 123; Li v Ye at [38].

[2019] NSWSC 1849.

[2016] NSWCA 242.

(2016) 341 ALR 141; [2016] NSWCA 24.

Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498 at 515; Brockway v Pando [2000] WASCA 192 at [120].

G E Dal Pont (ed), Law of Agency (3rd ed, 2014, LexisNexis Butterworths at para 5.29 and cases cited

McLaughlin v City Bank of Sydney (1912) 14 CLR 684; [1912] HCA 16; Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509 at [74].

Minors (Property and Contract) Act 1970, s 6(1)(m).

Minors (Property and Contract) Act 1970, s 17.

Minors (Property and Contract) Act 1970, s 19.

Minors (Property and Contract) Act 1970, s 18.

Minors (Property and Contract) Act 1970, s 46(1)-(2).

Shao v Crown Global Capital Pty Ltd (in prov liq) [2025] HCA 43 at [58].

Winau at [114].

[2024] NSWSC 73.

(1949) 80 CLR 344.

Thomson at 349.

[2017] NSWSC 1810.

Brown at [34].

Amendments

07 November 2025

Cover sheet - corrected hearing dates.

10 November 2025

10 November 2025 - Amendment to cover sheet - 'Representation' field.