At issue in this proceeding is whether the applicant is entitled to a concessional rate of duty upon a transfer to her of title to an apartment at Balmain (Property), by reason of the operation of s 55 of the Duties Act 1997 (NSW) (Duties Act).
This in turn depends upon whether the applicant has proven that each of the elements of s 55 exists. One of those elements is that she alone provided the moneys used to purchase the Property.
On the face of the contemporaneous documentary records, the applicant did not provide all of the moneys used to purchase the Property because those records show that some of those moneys were provided by her husband. The applicant contends that the amounts provided by her husband should be regarded as having been provided by her because they were a gift to her from her husband.
For the reasons developed below, I am not persuaded that there was such a gift and I have concluded that she did not provide all of the moneys used to purchase the Property, that s 55 is not satisfied and that the decision under review should be affirmed.
[2]
Background
The underlying facts are not in dispute. It is necessary to set them out in some detail as they provide the context in which the central issue - whether there has been a gift to the applicant from her husband - is to be determined.
The applicant's husband has operated a series of businesses. Those businesses have required financial support for various reasons. Since 2003 the husband has operated a business owned by a company in which the applicant and her husband each own 50 per cent of the issued shares. There is also a family trust in place (Trust).
Since 1998, the applicant has lent more than $4,500,000 to the trustee of the Trust or to the company owning the business. She did so using funds which she inherited and by borrowing.
From about 2015, the trustee of the Trust and the company which owns the current business began making repayments to the applicant.
On 30 January 2015, the applicant transferred $225,500 to her daughter, so that her daughter could pay the deposit for the purchase of the Property.
On 20 February 2015, the applicant's daughter, as purchaser, exchanged contracts for the sale of the Property. The purchase price of the Property was $2,225,000.
On 25 February 2015, Argyle Solicitors provided a letter of advice (Argyle Advice) to Mr Herat. Both Argyle Solicitors and Mr Herat were advising the applicant and her husband.
The Argyle Advice commenced by referring to an email from Mr Herat dated 19 February 2015 (not itself in evidence) in which he had requested Argyle's comments on the documentary requirements of an apparent purchaser arrangement that would satisfy s 55. The Argyle Advice then set out some background facts, apparently provided in the 19 February 2015 email, and provided some advice, described as comments.
The background facts as set out therein included:
(a) The apparent purchaser is [the applicant's daughter].
(b) The real purchaser is [the applicant].
…
(e) [The applicant and her husband] will receive an inheritance which will allow them to purchase the Property outright.
(f) For asset protection reasons [the applicant] wishes to acquire the Property via an apparent purchaser arrangement.
(g) Contracts have been exchanged to purchase the Property for $2,250,000 (sic).
(h) The 10% deposit has been or will be paid by [the applicant] to [her daughter] who has transferred or will transfer the deposit to the Vendor.
…
(j) [The applicant's daughter] has obtained a loan from AMP for the balance of the purchase price. [The applicant] will provide an indemnity and undertaking to repay the loan…
The comments provided in the Argyle Advice included:
(b) …We understand that [the applicant] paid or will pay the initial 10% deposit…We also understand that [the applicant's daughter] has obtained a loan with AMP for the balance of the purchase price, but [the applicant] has agreed to indemnify [the applicant's daughter] and to pay:
(i) the loan including all loan repayments, fees and charges…;
…
(d) ... it is our preference that the loan with AMP is entered into by [the applicant] such that [the applicant] would directly provide the money for the purchase of the Property as required in Section 55 (1)(a)(i).
(e) Nevertheless, we acknowledge that Section 55 (1A) can assist in satisfying Section 55 (1)(a)(i).
…
(f) On this basis, we note that [the applicant's daughter] entering into the loan with AMP and [the applicant] indemnifying [the applicant's daughter] for the loan and associated costs may be sufficient to satisfy Section 55 (1)(a)(i) provided that the Chief Commissioner is satisfied that the loan and all associated costs will be repaid by [the applicant].
…
In April 2015, the purchase of the Property was completed.
Following settlement adjustments, the purchase price of $2,225,000 became $2,236,112.40. The following amounts were paid to the vendors' solicitor:
1. a deposit of $225,000, paid by the applicant's daughter, using funds provided by the applicant;
2. $200,000, from a Macquarie Bank Account, in the name of the trustee of the Trust;
3. $815,871.28 (being the total of $50,000, $763,423.20 and $2,448.08) from a joint account in the names of the applicant and her husband (Joint Account); and
4. $999,750, provided by AMP Bank Limited (AMP) as a loan to the applicant's daughter (Loan).
The amounts paid to the vendors' solicitor totalled $2,240,621.28 (an overpayment of $4,508.88).
The payment of $763,423.20, which was made from the Joint Account to the vendor's solicitor on 13 April 2015, came about in the following way:
1. on 10 April 2015, the balance of the Joint Account was $30,845.61;
2. on that day, the sum of $884,000.00 was deposited into the Joint Account, increasing its balance to $914,845.61. The sum of $884,000 was an inheritance received by the applicant's husband from the estate of his mother;
3. the balance of the Joint Account was then increased further by credits of $741.20 and $1,300.20 and diminished by a transfer out of $200.00, to give a balance of $916,687.01; and
4. it was from that balance of $916,687.01 that the payment of $763,423.20 was made.
It is common ground that part of the sum of $763,423.20 paid from the Joint Account to the vendor's solicitor came from the $884,000.00 deposited into the Joint Account by the applicant's husband.
Duty in the amount of $107,865 was assessed and paid.
The applicant's daughter opened a loan account (Loan Account) and an offset deposit account (Offset Account) with AMP. All Loan repayments were made from the Offset Account to the Loan Account.
Between 27 December 2017 and 3 January 2018, the applicant's husband caused the transfer of $535,000 to the Offset Account. He had received those funds as part of his inheritance from the estate of his mother. As a result of these deposits, the balance of the Offset Account was $685,472.89.
On 1 June 2018, a transfer of $899,523.00 was made from the Offset Account to the Loan Account, with the notation "Payout loan". It is common ground that part of the sum of $899,523.00 paid from the Offset Account to the Loan Account came from the $535,000 which the applicant's husband caused to be deposited into the Offset Account.
On 27 September 2018, the applicant's daughter and the applicant executed a transfer form for the transfer of the Property from applicant's daughter to the applicant. The consideration was described as "Pursuant to s. 55 Duties Act 1997".
On the same day, the transfer form was lodged with the respondent, together with a letter (and supporting documents) containing a request that duty on the transfer be assessed at the concessional rate provided for by s 55 of the Duties Act.
On 5 October 2018, the respondent answered the 27 September 2018 letter, indicating that the respondent was not satisfied that the requirements of s 55 of the Duties Act had been met. The reasons for this conclusion included that some of the moneys used to purchase the Property had come from the Joint Account.
On 9 October 2018, the respondent issued a Notice of Assessment (Assessment) for duty payable, not upon the concessional basis sought but instead as ad valorem duty, in the amount of $128,440. That amount was promptly paid, on 11 October 2018.
On 28 November 2018, the applicant lodged an objection to the Assessment (Objection). It was signed by the applicant, and was prepared by the applicant and her husband. The Objection addresses the matters raised in the respondent's 5 October 2018 letter.
The Objection includes the following statements:
(1) "We sought expert legal advice at the outset to establish an Apparent Purchase Arrangement and the intention was for [the applicant and her husband], as husband and wife to jointly fund the purchase.
Confirming 'intent' from the outset of the purchase of the property we got the advice of our solicitor Bruce Herat…On his advice we sought specialist guidance in this area. See the attachment A: Argyle Lawyers letter 25 February 2015 to Bruce Herat.
In the 'Background Facts' section of the letter Argyle Lawyers acknowledge (b) the real purchaser is [the applicant] and (e) [the applicant and her husband] will receive an inheritance which will allow them to purchase the property outright."
(emphasis in original)
(2) "Neither our lawyer Bruce Herat or Peter Bobbin (Managing Principal) Argyle lawyers briefed us that every dollar used to pay for the purchase of the property had to be my money exclusively and that every transfer of funds had to be from my bank account"
(emphasis added)
(3) "2. Payment of the purchase : the title is in my name; the payments were made by my husband and me jointly from our inheritances and profits from our company"
(emphasis in original)
(4) "3. Monies from inheritances to buy the family home
To confirm that the majority of funds to purchase the property came from inheritances received by my husband and I please see… Attachment K being the details of the share portfolio my husband inherited from his mother…which he largely liquidated and received $884,000 on 10 April 2015.
In summary, all funds used to pay for the property in my name came from the company my husband and I own and the inheritances we both received. Additionally the funds from the company were repaying a loan that I had provided through our family trust. …"
(emphasis in original)
On 25 January 2019, the respondent disallowed the Objection (Objection Decision).
On 26 March 2019, the applicant commenced the present proceeding, seeking a review of the Objection Decision. It is common ground between the parties that the applicant should have sought review of the Assessment, rather than the Objection Decision, and the parties have conducted this proceeding on the basis that the Assessment is the subject of the review.
In her application commencing this proceeding (Application), the applicant set out the following Grounds For Application:
We have been made to pay stamp duty twice on our home by State Revenue. On legal advice across three solicitors (one a specialist) we established an 'Apparent Purchase Arrangement' with our daughter as the apparent purchaser to temporarily keep our identity private. The objective: to pay stamp duty once on the purchase - our daughter could transfer title to us in 2018 with no stamp duty. We acted as our solicitors advised to comply with the arrangement - my husband and I paid all costs with the property. At time of transfer State Revenue states our paperwork process was not correct and has made us pay a second round of stamp duty…
(emphasis added)
[3]
Jurisdiction and applicable law
The tribunal has jurisdiction to review the Assessment, pursuant to s 96 of the Taxation Administration Act 1996 (NSW) (Taxation Administration Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). In conducting that review the Tribunal is required to determine the correct and preferable decision having regard to the materials before it and the applicable law: s 63 ADR Act.
Section 100 of the Taxation Administration Act provides, in so far as is presently relevant:
100 Provisions relating to applications for review
…
(2) The applicant's and respondent's cases on an application for review are not limited to the grounds of the objection.
(3) The applicant has the onus of proving the applicant's case in an application for review.
In Levitch Design Associates Pty Ltd atf Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215 at [27], the Tribunal stated:
[27] In a review application under Pt 10 of the Act, the applicant "has the onus of proving the applicant's case" (s 100(3)). This requires the applicant to prove or establish on the balance (preponderance) of probabilities all matters necessary to enable a tribunal to answer the statutory question in the applicant's favour, and all the facts on which the applicant relies to claim any exemption. The legislation does not place any onus on the Chief Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The burden on the applicant is not necessarily discharged by showing an error by the Chief Commissioner in forming a judgment as to the amount of the assessment. It is for the taxpayer to discharge the burden of proof by establishing what the correct amount of an assessment should be. See Cornish Investments Pty Ltd v Chief Cmr of State Revenue (RD) [2013] NSWADTAP 25 at [5-7], [29-36] and cases there cited; see also Lend Lease Development Pty Ltd v Cmr of State Revenue (Vic); [2012] VSC 108 at [51], Conder Tower Pty Ltd v CSR [2012] VSC 107 at [46], Wesfarmers General Insurance Ltd v CSR [2009] VSC 599 at [14], Theophilas v Chief Commissioner of State Revenue [2014] NSWCATAD 100 at [41-42]. …
The applicant has the onus of proving that s 55 of the Duties Act applies. Section 55 provides, in so far as is presently relevant:
55 Property vested in an apparent purchaser
(1) Duty of $50 is chargeable in respect of:
(a) …
(b) a transfer of dutiable property from an apparent purchaser to the real purchaser if:
(i) the dutiable property is property, or part of property, vested in the apparent purchaser upon trust for the real purchaser, and
(ii) the real purchaser provided the money for the purchase of the dutiable property and for any improvements made to the dutiable property after the purchase.
(1A) For the purposes of subsection (1), money provided by a person other than the real purchaser is taken to have been provided by the real purchaser if the Chief Commissioner is satisfied that the money was provided as a loan and has been or will be repaid by the real purchaser.
…
The effect of s 55(1A) is that where, as in the present case, part of the moneys used to purchase a property are loan funds, those funds are treated as having been provided by the real purchaser if the respondent is satisfied that the loan has been or paid or will be paid by the real purchaser. In the present case, this requires satisfaction that the Loan was repaid by the applicant.
The requirement that the purchase moneys have been provided by the applicant is a requirement that the applicant has provided the whole of the purchase price: see Triantafilis v Commissioner of Stamp Duties For New South Wales (1998) 98 ATC 4484; (1998) 39 ATR 56, per Priestley JA (Mason P and Powell JA agreeing); Al Haddad v Chief Commissioner of State Revenue [2018] NSWCATAD 91 at [32]-[33].
This is an all or nothing question. There is no basis for apportionment: see Gleeson v Commissioner of State Revenue [2009] VSC 464; (2009) 28 VR 607 at [32]. There is no discretion to be exercised.
[4]
Issues requiring resolution
For the applicant to succeed, she must establish, on the balance of probabilities, the following matters:
1. first, the Property is dutiable property;
2. secondly, the Property was transferred from the applicant's daughter to the applicant;
3. thirdly, the Property was vested in the applicant's daughter upon trust for the applicant, as required by s 55(1)(b)(i); and
4. fourthly, the applicant provided the money for the purchase of the Property, and for any post-purchase improvements to the Property, as required by s 55(1)(b)(ii).
The first and second matters are common ground.
The third and fourth matters are in issue. As the resolution of the third matter turns in part upon the resolution of the fourth matter, it is convenient to consider the fourth matter first.
This requires an examination of the payments made as consideration for the purchase of the Property in 2015, and of the means by which the Loan was repaid.
As noted above, the consideration for the purchase of the Property in 2015 came from four sources:
1. a deposit of $225,000, from funds provided by the applicant;
2. $200,000 from the Trust;
3. $815,871.28 (being the total of $50,000, $763,423.20 and $2,448.08) from the Joint Account; and
4. $999,750, pursuant to the Loan from AMP to the applicant's daughter.
It is common ground that the deposit of $225,000 and the amount of $200,000 from the Trust were moneys provided by the applicant.
As noted above, it is also common ground (and the contemporaneous documentary records show) that:
1. part of the $763,423.20 paid toward the purchase price was paid from the Joint Account, utilising funds which the applicant's husband had received by way of inheritance and had deposited into the Joint Account; and
2. part of the loan repayment of $899,523.00 on 1 June 2018 was paid from the Offset Account in the name of the applicant's daughter, utilising funds which the applicant's husband had received by way of inheritance and had caused to be deposited into the Offset Account.
It follows that, on the face of the contemporaneous documentary records, the applicant did not provide all of the money for the purchase of the Property.
The applicant seeks to rebut that prima facie position with an argument that the moneys deposited into the Joint Account and the Offset Account by the applicant's husband were gifts to her, such that those moneys belonged to her and thus were provided by the applicant for the purchase of the Property.
[5]
Was there a gift of the applicant's husband's inheritance to the applicant?
The applicant's submissions may be summarised as follows:
1. over many years, the applicant lent more than $4,500,000 to businesses operated by the applicant's husband either directly, or via the trustee of the Trust;
2. from about 2015, the company which owned the business and the trustee of the Trust had been able to make and had made some repayments to the applicant;
3. the applicant's husband wished to use his inheritance to assist in restoring the applicant's financial position to what it was before she made such loans; and
4. the applicant's husband did so by gifting to the applicant the funds he received by way of inheritance.
The respondent's submission is that the Tribunal should not accept the applicant's submission that there was a gift, principally because it is not supported by, and is inconsistent with documents previously provided by the applicant to the respondent and should be regarded as a retrospective rationalisation.
The threshold question is whether a gift was made. Resolution of this issue requires analysis of the relevant evidence. The key items of evidence are as follows.
First, the Argyle Advice. As noted above the Argyle Advice includes as a "background fact":
(e) [The applicant and her husband] will receive an inheritance which will allow them to purchase the Property outright.
The Argyle Advice does not expressly refer to this fact as part of the advice given. Rather, the advice given is premised upon (1) the applicant providing all of the deposit; (2) the applicant's daughter borrowing the balance of the purchase price from AMP; and (3) the applicant providing an indemnity and undertaking to repay the Loan (see comment (b) in the Argyle Advice).
However it appears that the applicant has interpreted the Argyle Advice as indicating that s 55 could apply if the moneys provided to purchase the Property came from sources other than herself alone. I infer this from the manner in which the Property was purchased (not in the manner contemplated by the Argyle Advice but instead using funds from the applicant, the Trust Account, the Joint Account and the Loan) and from the references in the Objection, set out above, to this "background fact" and to claims that the applicant followed the Argyle Advice.
On any interpretation, the Argyle Advice does not refer to the husband's inheritance being gifted to the applicant for use in paying for the Property.
Secondly, the transfers of the funds. The applicant's husband caused the deposit of funds he received by way of inheritance funds into the Joint Account and the Offset Account on 10 April 2015 and between 27 December 2017 and 3 January 2018 respectively. There appears to be no contemporaneous document which throws light on whether these transfers were made as a gift to the applicant.
Thirdly, the Objection which was lodged on 28 November 2018. As noted above, the Objection was signed by the applicant, and was prepared by the applicant and her husband.
The theme of the Objection was that the applicant and her husband had received advice prior to the purchase of the Property; the advice was given in a context in which the advisor knew that each of the applicant and her husband would receive inheritances that would be used in the purchase of the Property; the advice was followed; and that the funds used to purchase the Property were from their joint funds, including the applicant's husband's inheritance.
The Objection contains several references to the funds for the purchase of the Property having been provided by the applicant and her husband jointly, including "the intention was for [the applicant and her husband], as husband and wife to jointly fund the purchase";" the payments were made by my husband and me jointly from our inheritances and profits from our company" ; and "In summary, all funds used to pay for the property in my name came from the company my husband and I own and the inheritances we both received".
Those references are difficult to reconcile with the proposition that the funds for the purchase of the Property were provided solely by the applicant, or that there was a gift to the applicant.
The Objection also contains the following statement:
Neither our lawyer Bruce Herat or Peter Bobbin (Managing Principal) Argyle lawyers briefed us that every dollar used to pay for the purchase of the property had to be my money exclusively and that every transfer of funds had to be from my bank account
That statement is consistent only with an acknowledgement that the funds used to pay for the purchase of the Property did not come solely from the applicant.
Further the Objection, despite its detail, makes no reference to a gift from the applicant's husband to the applicant.
Fourthly, the Application. In the Application, the applicant repeated the assertion that the funds used to purchase the Property came from both the applicant and her husband and that this was consistent with the advice they had received. In particular, she asserted:
We acted as our solicitors advised to comply with the arrangement - my husband and I paid all costs with the property.
The Application also makes no reference to there having been a gift.
Fifthly, the affidavit evidence of the applicant and her husband and their evidence under cross examination. In November 2019, the applicant and her husband affirmed affidavits in this proceeding, in which they provide evidence that:
1. over many years, the applicant had lent funds more than $4,500,000 to businesses operated by her husband, either directly, or via the trustee of the Trust; and
2. in order to repay the loans made by the applicant and in order to restore her financial position to what it was before those loans:
1. from about 2015, the husband's business and the trustee of the Trust made some repayments to the applicant; and
2. the applicant's husband intended to gift to her an inheritance he was due to receive.
However, the evidence as to the creation of a gift is imprecise and conclusionary. Such evidence, at its highest, is:
1. the applicant's evidence at paragraph 24 of her affidavit: "My husband had expectations of the receipt of an inheritance and he committed to gift this to me - this was in the expectation in the time leading up to and upon gifting of the sum"; and
2. the applicant's husband's evidence at :
1. paragraph 6l of his affidavit: "I was due to receive an inheritance from my mother's estate that came in March/April 2015… When I was cleared to sell my mother's shareholdings, I did so in line with my intention as articulated by [the applicant] in paragraph 24 of her affidavit";
2. paragraph 6n of his affidavit: "I can confirm that the funds utilised from the [Joint Account] to repay the mortgage established in our daughter's name (which was in effect on-loaned to [the applicant]) were entirely [the applicant's] money - it was either funds in the account that was paid to [the applicant] (albeit in the [Joint Account]) in repayment of loans or it was funds that I had gifted to [the applicant] as part of the abovementioned plan to compensate [the applicant] …"
This evidence is conclusionary as to the making of any gift. It does not address primary facts as to how the gift was created. In particular, there is no reference to any writing or to words being said that are capable of founding the asserted conclusion that a gift was made.
Sixthly, the statutory declaration of Mr Chew, which was tendered by the applicant. Mr Chew's evidence is that from 2003 until June 2018 he was the external registered accountant for the applicant, her husband, the Trust and the company which owns the business. He provides evidence of the loans made by the applicant, but does not address the issue of whether there was a gift, despite the transfers of funds said to be the product of the gift having occurred during the period in which he was engaged by the applicant and her husband.
For the applicant to succeed, the Tribunal, after evaluating all of the evidence must be persuaded that the payments made by the husband from his inheritance toward payment of the balance of the purchase price and toward repayment of the Loan were made as gifts from the applicant's husband to the applicant.
I am not so persuaded.
There is no evidence that the gift was the subject of a written record. Thus, any gift, if made, must have been made orally.
The difficulties faced by a party relying upon spoken words in persuading a court or tribunal that particular words were spoken were conveniently summarised by Hammerschlag J in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451, where his Honour said at [94]:
[94] Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319.
(emphasis added)
Similarly, in Watson v Foxman (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq said, at 318-319:
Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the Court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding" (Helton v Allen 63 CLR 691 at 712).
(emphasis added)
The evidence of the applicant and her husband does not persuade me that a gift was made. As mentioned above, their evidence is conclusionary. The statutory declaration of their accountant is silent on this issue.
The evidence of the applicant and her husband is also not supported by any contemporaneous documentation.
Further, in the Objection (which was prepared by the applicant and her husband) and the Application:
1. no reference was made to the gift; and
2. there are statements to the effect that the funds for the purchase of the Property were provided by the applicant and her husband jointly.
The Objection also contains an acknowledgement by the applicant that the funds used to pay for the Property did not come exclusively from the applicant.
For the above reasons, I am not persuaded that there was a gift from the applicant's husband to the applicant.
[6]
Conclusion
Thus the prima facie position as revealed by the undisputed contemporaneous documentary evidence, that the applicant did not provide all of the moneys for the purchase of the Property, stands.
It follows that the requirement in s 55 (1)(b)(ii) that the applicant has provided all of the moneys for the purchase of the Property has not been satisfied. It is unnecessary to decide whether the requirement in s 55(1)(b)(i) that the Property vested in the applicant's daughter upon trust for the applicant has been satisfied.
Section 55 does not apply and the decision under review should be affirmed.
[7]
Orders
1. The decision under review is affirmed.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 April 2020