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[2007] NSWSC 875
Supreme Court of NSW
2007-07-31
White J
Original judgment source is linked above.
CITATION : Bhupinder Sekhon v Sharanjit Kaur Sekhon [2007] NSWSC 875
HEARING DATE(S) : 30-31 July 2007; and 1-3 August 2007
DECISION : See paras 134, 138, 140-141, 143 of judgment.
CATCHWORDS : EQUITY - Trusts and trustees - Implied trusts - Resulting trusts - When arising - Property purchased in one name and subsequently transferred to joint names - Where contribution to initial purchase price not established - Where transfer to joint names gives rise to inference that parties intended that beneficial interest of parties is commensurate with legal title - Held that beneficial interest in property commensurate with legal title. - REAL PROPERTY - Statutory trust for sale. - INDEMNITY - Right of surety - Obligations incurred on request and without consideration - Common law right of indemnity - Held that party who requested and received benefit of payment liable to indemnify mortgagor in respect of amount of mortgage proportionate to benefit received. - MORTGAGES - Remedies of the mortgagor - Contribution between mortgagors. - CONTRACTS - Construction and interpretation of contracts - Whether payments of moneys constituted loans or gifts. - (NSW) Conveyancing Act 1919, s 66G
LEGISLATION CITED : Conveyancing Act 1919 (NSW) Civil Procedure Act 2005 (NSW)
CASES CITED : Calverley v Green (1984) 155 CLR 242 Dinsdale bht Protective Commissioner v Arthur (2006) 12 BPR 23,509
Bhupinder Sekhon PARTIES : v Sharanjit Kaur Sekhon
COUNSEL : Plaintiff: A Fernon Defendant: M K Rollinson
SOLICITORS : Plaintiff: Low Doherty & Stratford Solicitors Defendant: Ramrakha Jenkins
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
1136/06 Bhupinder Sekhon v Sharanjit Kaur Sekhon JUDGMENT 1 HIS HONOUR: These proceedings concern the beneficial ownership of land registered in the name of the plaintiff and the defendant, and financial arrangements between them and their sons. 2 The plaintiff, Mr Bhupinder Sekhon, and the defendant, Mrs Sharanjit Kaur, were formerly husband and wife. They were divorced in 1988. They have four children: two daughters, Kuljit Sekhon, called Sonia, and Diljit Sekhon, called Daisy; and two sons, Harjot, sometimes called Harry, and Harjaan. At the time of their divorce, Bhupinder Sekhon and Sharanjit Kaur were jointly registered as proprietors of land at 36 Wynyard St, Granville ("the Granville property") and 283 Carlisle Avenue, Hebersham ("the Hebersham property"). Pursuant to orders of the Family Court of 21 August 1992, Bhupinder Sekhon transferred his interest in both properties to Mrs Kaur. 3 On 22 December 1993, Mrs Kaur sold the Granville property for $122,000. The net proceeds of sale after costs of sale and adjustments were about $110,000. In 1995, Mr Bhupinder Sekhon purchased 12 Bonney Place, Doonside ("the Doonside property") for $276,000. On 28 October 1996, Mrs Kaur sold the Hebersham property for $100,000. On 13 July 2000, Bhupinder Sekhon transferred title to the Doonside property to himself and Mrs Kaur as tenants in common in equal shares. 4 The first issue is who is beneficially entitled to the Doonside property. 5 Bhupinder Sekhon says that the property is held beneficially in accordance with the legal title. That is to say, by himself and Mrs Kaur in equal shares. He seeks an order appointing trustees for sale pursuant to section 66G of the Conveyancing Act 1919 (NSW). 6 Mrs Kaur contends that she is the sole beneficial owner of the property. She contends that the property was purchased by Bhupinder Sekhon partly with money belonging to her and partly with money borrowed by him from the ANZ Bank. She says the proceeds of sale of the Granville property were used towards the purchase of the Doonside property together with the proceeds of an insurance claim arising from a fire at the Granville property. She contends that she was solely entitled to the proceeds of the insurance claim by reason of the orders made in the Family Court on 21 August 1992. She also says that the mortgage to the ANZ Bank was paid off with the proceeds of sale of the Hebersham property. She contends that, in consequence of these payments, she provided all of the money used to buy the Doonside property and to discharge the mortgage over it and that that property was held by Bhupinder Sekhon on a resulting trust for her. Mrs Kaur contends that the later transfer of the legal title to Bhupinder Sekhon and herself as tenants in common in equal shares does not affect her right as the sole beneficial owner of the land. 7 It is common ground that if Mrs Kaur's claim to be the sole beneficial owner of the Doonside property fails, then trustees for sale should be appointed. 8 The second issue concerns the liability of Bhupinder Sekhon, Mrs Kaur and Harjot Sekhon to contribute to mortgage payments due to the Austral Credit Union and secured over the Doonside property, and also to contribute to another mortgage which was discharged in 2006. The two mortgages secured loans used to buy a unit at 604/40-48 Atchison Street, St Leonards. The unit was purchased by Mrs Kaur and Harjot Sekhon in 2003, although the precise date of purchase was not established. 9 The unit was purchased off the plan for $672,000. The purchase was almost wholly funded by borrowings. Mrs Kaur and Harjot Sekhon borrowed $471,000 by a loan secured by mortgage over the St Leonards property. Bhupinder Sekhon and Mrs Kaur borrowed $200,000. This loan was secured by a mortgage over the Doonside property. Its proceeds were used for the purchase of the St Leonards unit. Bhupinder Sekhon obtained no advantage from the second loan. 10 The St Leonards investment was not successful. The unit was sold on 23 March 2006 for $555,000. The loan secured over the St Leonards unit was discharged, but the proceeds of sale were insufficient to discharge the loan taken out by Bhupinder Sekhon and Mrs Kaur secured over the Doonside property. $147,413.90 remained owing. The rent from the St Leonards property was applied towards the mortgage repayments on the loan of $471,000. Harjot Sekhon paid the balance of the instalments on that loan prior to its discharge on the sale of the unit. He also paid all of the interest and repayments of principal on the second loan of $200,000, with assistance, latterly, from his father. 11 Mrs Kaur contends that she is not liable to contribute to the loan repayments because of representations made to her by Harjot Sekhon. 12 Harjot Sekhon and Bhupinder Sekhon say that, by reason of representations made by Mrs Kaur, she is wholly responsible for meeting the loan repayments. Bhupinder Sekhon contends, in any event, that on the sale of the Doonside property the mortgage debt should be borne wholly by Mrs Kaur because the moneys raised were used to buy the St Leonards unit in which he had no interest. 13 The third issue raised on the pleadings is whether Harjot Sekhon and Harjaan Sekhon, or both, borrowed moneys from Mrs Kaur in May and October of 2003 and are liable to repay the loans. 14 Mrs Kaur pleaded that she paid $47,516.95 in May 2003 to Harjaan Sekhon at the request of both Harjaan and Harjot Sekhon. $39,500 was transferred by Harjaan Sekhon to Harjot Sekhon in October 2003. Mrs Kaur alleged that they were both liable to repay the loan of $47,516.95. Mrs Kaur's claim against Harjot Sekhon for repayment of the alleged loan was abandoned in final submissions. In final submissions counsel for Mrs Kaur also said that the claim should be reduced by $10,000 to reflect Mrs Kaur's later acceptance that Harjaan Sekhon was not liable to repay the amount of $10,000. This last concession, which will be explained later in these reasons, related to the fourth issue. 15 The fourth issue concerns a cross-claim by Harjaan Sekhon against Mrs Kaur. Harjaan Sekhon contends that on 19 August 2005, he lent his mother $35,000 and that he lent her two further sums of $6,000 on or about 26 September and 27 October 2005. 16 Mrs Kaur admits receipt of $35,000. In cross-examination, she denied receipt of any further payments. She contends that the payment of $35,000 was not a loan. In evidence, she said that it was repayment of earlier loans made by her to Harjaan Sekhon, but her counsel characterised the payment as a gift to be explained by reciprocal favours she had given to Harjaan Sekhon, including her acknowledging that Harjaan Sekhon could keep $10,000 of the moneys she alleges she had earlier paid to him. 17 Neither Bhupinder Sekhon nor Mrs Kaur pressed a claim for an account based on the other's residence in the Doonside property, or an account based on their children's residence of that property, or for rents collected from persons occupying a granny flat on the property. Nor did the parties press claims for an account in relation to expenditure on the property. Issue 1: Beneficial Entitlement to the Doonside Property 18 I turn then to the first issue concerning the beneficial entitlement of the parties to the Doonside property. 19 The evidence as to the source of funds for the purchase of the Doonside property was unsatisfactory. The purchase was completed on 17 February 1995 by Bhupinder Sekhon. There was no documentary corroboration of either party's contentions as to the source of funds save in respect of the mortgage advance from the ANZ Bank. Nor was there evidence that corroborative documents which could be expected to have been tendered were no longer available. 20 Although Mrs Kaur asserted that Bhupinder Sekhon received the net proceeds of sale of the Granville property totalling $110,000, the only evidence that he did so came in the course of her cross-examination. As I have said, the Granville property was sold on 22 December 1993, less than eighteen months after the parties had agreed to orders in the Family Court which gave her that property. 21 In her affidavits, Mrs Kaur gave no evidence as to whether a solicitor acted for her on the sale of the Granville property. She gave no evidence as to what directions were given to the purchaser as to how cheques should be drawn. She gave no evidence of having endorsed any cheque. She produced no record of having paid the net proceeds of sale to Bhupinder Sekhon. In her affidavits, she gave no explanation as to how or when or why she transferred the proceeds of sale to Bhupinder Sekhon. 22 Having agreed upon a property settlement in 1992, there was no good reason Mrs Kaur should have handed over the proceeds of sale of the Granville property when she sold it at the end of 1993, unless it was to meet debts which Bhupinder Sekhon had incurred in 1993 in relation to two criminal charges against him, or to fund amounts which Bhupinder Sekhon had agreed to pay, and did pay, to Westpac. 23 So far as the evidence reveals, in 1993, when the Granville property was sold there was no property purchase in prospect. Debts had been incurred by Bhupinder Sekhon in defending arson charges brought against him. These arose from a fire at the Granville property in 1989 which gave rise to the claim on the insurance policy. Bhupinder Sekhon was acquitted of the arson charge in 1993. After he was acquitted of the arson charge, Bhupinder Sekhon faced trial upon a fraud charge. He was convicted of the fraud charge on 6 December 1993. He paid Westpac $76,920.36 to reimburse it for moneys he had misappropriated. 24 Bhupinder Sekhon says that the funds used to pay Westpac came from the proceeds of the insurance claim. Westpac was paid before the sale of the Granville property was completed. 25 In cross-examination, Mrs Kaur gave evidence to the following effect: she said that Bhupinder Sekhon had told her to sell the Granville property. She said that she sold the Granville property because she was forced to do so by Bhupinder Sekhon. She said that she endorsed the cheque for the proceeds of sale of the Granville property and handed the cheque over to him. She says that she did so because he was very violent towards her and she did not have any protection. 26 She gave evidence in cross-examination that, on the next day, Bhupinder Sekhon told her that he would buy a house for the children and for her using the proceeds of the sale of the Granville property and the insurance proceeds. She also gave evidence in cross-examination that, when she handed over the cheque, she insisted that a property to be bought should be bought in her name. She said that she told Bhupinder Sekhon the same thing one or two months later and on subsequent occasions. She said that when she first became aware that Bhupinder Sekhon intended to buy the Doonside property she told him that the property should be bought in her name. She said that she took no further step at that time to try to bring this about because Bhupinder Sekhon was very violent and she was scared of him. She said she was too scared to see a solicitor. She said that when she found that Bhupinder Sekhon had bought the Doonside property in his own name, she did not complain because she was scared. 27 None of this evidence was adduced in either of Mrs Kaur's affidavits. Nor was the substance of these allegations put to Bhupinder Sekhon in cross-examination. In saying that, I am not being critical of counsel. It appeared to me that that evidence was given by Mrs Kaur under pressure of cross-examination and I do not accept that evidence. 28 Generally, I do not regard Mrs Kaur as being a reliable witness. The assessment of her credibility and the assessment of Bhupinder Sekhon's credibility was greatly hampered by the inadequacies of the interpreter in this matter. At various stages during the hearing I formed an initial adverse view as to their credit because of what appeared to be their non-responsive answers to questions asked of them in cross-examination. However, in forming my assessment of their credibility I have not taken that matter into account. I have not been able to be satisfied that the questions which were asked by counsel to which apparently non-responsive answers were given were properly or accurately translated to the witnesses. 29 Nonetheless, I did not regard Mrs Kaur as being a witness of credit. She frequently volunteered, in a way which I am satisfied could not have been responsive to a question which was asked, allegations that her former husband and her sons beat her or were violent to her. I am satisfied that she did so merely for the purpose of hoping to discredit them. She gave evidence in relation to the fourth issue which was inconsistent with her verified defence to cross-claim. At one point, she accused others of forging her signature on a mortgage to secure the loan used to buy the St Leonards property before retreating to say that she did not know anything about the signing of the document. She made that allegation even though no such allegation had been pleaded or raised in her affidavit. I regarded it as symptomatic of her preparedness to at least exaggerate matters. 30 In my view, the bitterness of the family dispute has seriously impaired the reliability of her recollection, even if she has tried to accurately state what she recalled. 31 Bhupinder Sekhon's evidence as to the source of funds used to buy the Doonside property was also unsatisfactory. He said that the purchase price of $276,000 was financed as follows: " (a) Redundancy from Defiance: $37,000.00
(e) Savings including moneys from rent of land in India: $67,000.00
32 The only documentary corroboration of any of these items was as to the advance from the ANZ Bank of $97,000. The mortgage given by Bhupinder Sekhon to the bank was stamped for an advance of that amount. 33 There was corroboration of the loan of $28,000 borrowed by Bhupinder Sekhon from his daughter Sonia. There was no documentary corroboration of that loan but Sonia Sekhon corroborated the fact that the loan had been made. Neither she nor her father produced any bank statements but Sonia Sekhon gave evidence that she had not retained those statements. 34 At the time of the transactions Sonia Sekhon was nineteen, having left school two years previously. She explained the source of funds of $28,000 as being partly a gift received from her grandparents and partly her savings from her earnings. 35 I was favourably impressed by Sonia Sekhon. I accept her evidence that she both had the funds in question and advanced them to her father. Sonia Sekhon said, and I accept, that she tried to mediate the dispute between her mother and her father as the oldest of the children. She showed no partiality for one over the other. I accept her evidence. 36 I find it difficult to accept that without any records Bhupinder Sekhon could accurately have recalled in 2006, when he swore his affidavit, the other sums of money which he had received in 1995 or earlier and from which he said the purchase price was paid. I find it difficult to accept that the sums he identified should exactly match the purchase price of $276,000. I find it difficult to accept that, in 1995, when Bhupinder Sekhon was forty-three, he could have withdrawn his superannuation and applied it to the purchase of the Doonside property. There was no corroboration of any of the items (a) to (e). 37 On 29 November 2005, Bhupinder Sekhon's solicitor, acting on his instructions, wrote to Mrs Kaur's solicitor as follows: " 6. In 1992 consent orders were reached concerning property settlement whereby (a) your client received an unencumbered block of land at Guildford (sic) and the former matrimonial home at Hebersham. (b) our client retained the payout of the insurance claim for the value of the dwelling that was burnt down on the Guildford land of $85,000.
38 Notwithstanding these statements, Bhupinder Sekhon did not adhere to the instructions he had evidently given his solicitor. In his affidavit, he denied that the insurance proceeds had been used to buy the Doonside property. Rather, he said that those proceeds were used to reimburse Westpac for the moneys which had been misappropriated from Westpac. 39 The insurance claim was paid during 1993. Bhupinder Sekhon said in evidence that the proceeds were $74,000 or $76,000 rather than the $85,000 stated by his solicitors. 40 There was no documentary evidence in relation to the payment of the insurance claim. 41 Mrs Kaur had pleaded that the proceeds of the insurance claim were $60,000, although I understood her later to say, or to accept, that the proceeds were in the order of $74,000 to $76,000. 42 Given Bhupinder Sekhon's admission through his solicitor that proceeds of the insurance claim were used in the purchase of the Doonside property, I do not accept that the source of funds for that purchase was as described by him in paragraph 62 of his affidavit which I have quoted. I rather find, based on that admission, that the insurance proceeds were used in the purchase of the property. 43 Bhupinder Sekhon denied receiving any of the proceeds of sale of the Granville property. The unsatisfactory nature of Mrs Kaur's evidence as to the payment of the Granville proceeds means that I accept his denial of that matter. 44 I am left in a state of uncertainty as to how much money came from what sources to purchase the Doonside property. The unsatisfactory evidence from Bhupinder Sekhon as to the source of funds for the purchase of that property does not mean that Mrs Kaur has established that she provided all of the moneys for the purchase other than the $97,000 borrowed from the ANZ Bank. 45 As can be seen from his solicitor's correspondence, Bhupinder Sekhon contended that he was entitled to the proceeds of the insurance claim. Mrs Kaur contended that she was entitled to the proceeds of the insurance claim pursuant to the orders of the Family Court. Bhupinder Sekhon said in oral evidence that it covered both the building and the contents. His solicitor had described the payout as representing the value of the dwelling that was burnt down on the Granville property (mistakenly referred to as the "block of land at Guildford"). The insurance policy was not tendered. The orders of the Family Court did not deal with the claim on the insurance policy. 46 As I have said, the fire at the Granville property occurred in 1989. The claim on the insurance policy was a chose in action which the holder of the policy had against the insurer. The orders of the Family Court did not deal with the insurance claim. The claim on the insurers was not realty. Mrs Kaur was not entitled to the insurance proceeds because of the terms of settlement. 47 As she and Bhupinder Sekhon were both registered as proprietors of the Granville property before the fire it is probable that they were co-insureds. If so and if the policy covered the destruction of the building then Mrs Kaur would have been entitled to half the insurance proceeds. 48 If the insurance policy covered the contents of the house then, presumably, Mrs Kaur and Bhupinder Sekhon were indemnified against their interest in the contents. There was no evidence as to what contents were destroyed. As I have said, the policy itself was not put into evidence, nor was the insurance claim tendered. 49 There is no dispute that Mrs Kaur did not receive any of the proceeds of the insurance claim. They appear simply to have been taken by Bhupinder Sekhon. I doubt that in those circumstances the presumption of a resulting trust would arise from his use of the insurance proceeds to the extent that Mrs Kaur had an interest in those proceeds. That is because a presumption of a resulting trust is based on the presumed intentions of the parties that they will beneficially hold the title to property acquired in the proportions that each contributes to the purchase price. In circumstances where Bhupinder Sekhon simply took all of the insurance proceeds and used them to help buy the property, and where there is no evidence that either he or Mrs Kaur turned their mind to the question of who was entitled to those proceeds, the application of the proceeds in that way cannot give rise to any presumption as to the parties' intentions. 50 However, to the extent the insurance proceeds belonged to Mrs Kaur, but were used by Bhupinder Sekhon to buy the Doonside property, I accept that a constructive trust could arise in the proportion that the moneys so used bore to the cost of acquisition of the property. At best, from Mrs Kaur's point of view, she has established that half of the insurance proceeds belonging to her and were applied towards the purchase of the Doonside property. Assuming that those proceeds amounted to $76,000 then she could establish a beneficial interest in the proportion which $38,000 bears to $276,000. Having said that, the evidence as to her entitlement to the insurance proceeds is meagre at best. 51 It is common ground that $90,000 of the proceeds of sale of the Hebersham property were paid to Bhupinder Sekhon. Those proceeds were received in October or November 1996. Why that was so was not explained. 52 Bhupinder Sekhon says that $56,000 of the proceeds of sale of the Hebersham property were used to help discharge the mortgage to the ANZ Bank over the Doonside property. He gave evidence that Mrs Kaur agreed to this, provided that she got her money back. He gave evidence that he agreed to repay her the $90,000 once his father's house had been sold. His father had died in 1993 and he was a beneficiary under his father's will with his brother. Bhupinder Sekhon says that he used $24,000 of the moneys he received on the sale of his father's house in Auburn to discharge the mortgage to the ANZ Bank, along with $56,000 from moneys received from Mrs Kaur on the sale of the Hebersham property. 53 His admission that $56,000 was used to discharge the mortgage to the ANZ Bank is the only evidence that the proceeds of sale of the Hebersham property which were received by him were used in this way. That is to say, there is no evidence that all $90,000 received from the sale of the Hebersham property was used to discharge the mortgage over Doonside. 54 Bhupinder Sekhon says that the transfer of $90,000 was a loan to him. It is his case that when $56,000 of those moneys was used to discharge the mortgage over the Doonside property, the money used was his money which he had borrowed from Mrs Kaur. He also says that Mrs Kaur was repaid. She was not repaid directly. The repayments were said to have taken place as follows. Bhupinder Sekhon says that, in 1996, $38,000 was paid by him to purchase a Ford Futura motor car for Mrs Kaur. In 1999, he said he paid $52,000 to their daughter Daisy as a gift from Mrs Kaur to assist Daisy to purchase a property at 24 Kirkman Road, Blacktown ("the Blacktown property"). 55 His evidence in relation to these transactions was corroborated by Sonia Sekhon. Bhupinder Sekhon's evidence in relation to the purchase of the car was not particularly satisfactory. There were discrepancies as to whether he paid $34,000 or $38,000, and he gave two explanations for that difference during the course of his cross-examination. However, Sonia Sekhon corroborated the evidence of the purchase of the car and I accept her evidence. Accordingly, I accept Bhupinder Sekhon's evidence in relation to that purchase. 56 It was striking and surprising that no party tendered any documentary record of the purchase, such as a transfer of the registration. Mrs Kaur denied that the car had been purchased for her. I do not think I should draw an adverse inference against either party in relation to their failure to tender records relating to the registration of the motor vehicle or otherwise going to its ownership. It was open to either party to tender such evidence. 57 Sonia Sekhon also corroborated Bhupinder Sekhon's evidence that $52,000 was paid to Daisy Sekhon as a gift from Mrs Kaur. Sonia Sekhon gave evidence, which I accept, that her mother said to her father "please pay the deposit from the money you were holding on my behalf". That money was paid to Daisy Sekhon and used towards the purchase of the Blacktown property. 58 Accordingly, I accept Bhupinder Sekhon's evidence, corroborated in important respects by Sonia Sekhon, that the moneys received from the sale of the Hebersham property were treated by the parties as a loan to him from Mrs Kaur which was repaid in this complicated way. Had I rejected Bhupinder Sekhon's evidence about this there would still have been no evidence that more than $56,000 was applied in discharge of the mortgage over the Doonside property. Nor would the use of moneys received from Mrs Kaur to discharge the mortgage over the Doonside property have changed the beneficial interests of the parties in the Doonside property. 59 Assuming that the relationship between Bhupinder Sekhon and Mrs Kaur in relation to the Hebersham moneys was not just that of debtor and creditor, but that the money was Mrs Kaur's money and not his, then to the extent the money was used partially to discharge the mortgage over the Doonside property, Mrs Kaur might have been subrogated to the mortgagee's charge over the property. But the discharge of the mortgage after the property was acquired would not have altered the beneficial ownership (Calverley v Green (1984) 155 CLR 242 at 252, 257-258, 262-263). 60 Accordingly, the evidence before me would have risen no higher than showing that Mrs Kaur had a beneficial interest of about one-seventh in the Doonside property. But the question as to precisely what interest she had in that property on its purchase and after the discharge of the mortgage to the ANZ is rendered moot by the events of 2000. 61 On 13 July 2000, Bhupinder Sekhon transferred a half-share of the property to Mrs Kaur and she accepted the transfer. A solicitor acted for her on that transaction. 62 I accept Bhupinder Sekhon's evidence that he made this transfer under pressure from his children and from Mrs Kaur, in which Mrs Kaur complained that she had no interest in the house. Bhupinder Sekhon gave evidence that he told Mrs Kaur, after she complained that she had nothing in the house and that she had nowhere to go if things went wrong and the children took everything, that: " If you want half I can give you half, but you have to promise me when the children want to buy properties you have to help them. We have to help each other. "
63 He gave evidence that she replied, "If you give me half the house I will help the children". 64 He also gave evidence that about a week later Mrs Kaur said to him, "I want half the house. I'm minding the kids. What do I gain?" and he replied, "You can have half of the house. You have to promise me when we are buying properties for the children, you have to help out". He says that she agreed to this. I accept this evidence. 65 Sonia Sekhon gave evidence that, at the time Daisy Sekhon was buying the Blacktown property with her father, which was in late 1999, her mother complained to her that: " I have nothing, no home, no house. No one is thinking about me. I have spent so many years out of my life taking care of all of you ... when I get old none of you children will look after me and I will have no house to live in. "
66 She then spoke to her father and told him what her mother had said and said that circumstances for all of the children at the time were miserable. 67 Mrs Kaur's position was that she demanded that the property be transferred into her name alone and that she never retracted or compromised that demand. Her position is that, because Bhupinder Sekhon would not accede to that demand, she signed the memorandum of transfer under which she took a half-share as tenant-in-common of the Doonside property, but she did so because that was all that Bhupinder Sekhon was prepared to do. Her case is that she did not, thereby, relinquish her claim to be beneficially entitled to the whole of the property. 68 She did not say that Bhupinder Sekhon acknowledged that she was beneficially entitled to the whole of the property. There is no evidence that she told Bhupinder Sekhon that if he transferred the property to himself and to her in equal shares she would continue to maintain her demand to the whole of the property. Nor did she do so until 2005 when Bhupinder Sekhon said that he wanted the property to be sold. 69 Sonia Sekhon attended with her mother and her father on a solicitor in Blacktown when the memorandum of transfer was signed. Sonia Sekhon said that this was in 2002. This date was incorrect as the transfer was signed in July 2000, but nothing turns on this error. 70 Sonia Sekhon deposed to having had a conversation with her mother in Punjabi to the following effect: "Mum, this is pretty good for you. You are basically getting $220,000 in value for agreeing to help the children to buy properties along with Dad" and that her mother replied "I am glad that it happened that way." I accept that evidence. 71 In substance, the transfer of the fifty percent interest in the Doonside property to Mrs Kaur was a compromise of her complaints that she had no property in her own name. It was a compromise of her claim to an interest in the Doonside property. 72 The Doonside property was transferred into the parties' joint names after it had been acquired initially in the name of only Bhupinder Sekhon. The direct and indirect financial contributions of the parties to the purchase of the property, its maintenance and the payment of incumbrances was complicated. The inference in such circumstances is very strong that the parties intended the beneficial interest to be commensurate with the legal title. In my view, that inference is not displaced by any presumption of a resulting trust which might have arisen at the time the property was acquired in the name of Bhupinder Sekhon alone. In any event, Mrs Kaur did not establish that at any time she had acquired a one-hundred percent beneficial interest in the property or even a beneficial interest of more than fifty percent. 73 I conclude that the parties' beneficial interests in the Doonside property are commensurate with the legal title to the land. The result is that trustees for sale should be appointed. Subject to Bhupinder Sekhon's contention that the mortgage to Perpetual Trustee Limited to secure moneys payable to Austral Credit Union should be borne wholly by Mrs Kaur, he and Mrs Kaur are entitled to receive the proceeds of sale equally after the costs of sale and the trustee's charges and expenses are deducted. Issue 2: Contributions to the Mortgages over Doonside and St Leonards 74 I turn then to the second issue being the claim concerning contribution or indemnity for the mortgage payments for the loans used to buy the St Leonards. 75 Bhupinder Sekhon contends that he agreed to sign the mortgage over the Doonside property only on the basis of an assurance given to him by his son, Harjot Sekhon, that Mrs Kaur had agreed to be responsible for all the loan repayments. Harjot Sekhon corroborates this. He says that Mrs Kaur had indeed assured him that she would pay for everything, and that he conveyed this information to his father. Harjot Sekhon says that he agreed to buy the St Leonards unit with his mother and to join in the loan only at her request and only on the basis of her assurance that "it won't be your problem, there will be no loss". 76 Mrs Kaur says that she purchased the St Leonards unit only as a nominee for her son. She says that she did so because he represented that he needed a person to sign as he could not get a loan by himself. She contends that she signed the contract for purchase and the mortgages on Harjot Sekhon's assurance that Harjot and Bhupinder Sekhon would sell a property they owned at 27 Softwood Avenue, Kellyville ("the Kellyville property") and would use the proceeds to reduce the debt on the St Leonards property. 77 Mrs Kaur says that her interest in the St Leonards unit was only as a nominee for Harjot Sekhon. Harjot Sekhon claims that his interest in the St Leonards unit was only as a nominee for his mother. I do not accept either contention. 78 Before giving evidence in cross-examination, although Mrs Kaur had given evidence that she was induced to buy the St Leonards unit with her son on the basis of representations made by him, she did not give evidence that those representations included a representation that he would be solely responsible for the mortgage payments. Such evidence was given by her during the course of her cross-examination. However, I do not accept it. 79 It is striking that neither Mrs Kaur nor Harjot Sekhon tendered the contract for purchase of the St Leonards unit. Neither of them gave any detailed evidence as to when and in what circumstances the contract was entered into. Neither gave evidence of what deposit was paid or who provided the deposit. Such evidence would clearly have been material to their contentions that they bought the St Leonards unit only as a nominee for the other. 80 Mrs Kaur described the St Leonards unit to her son Harjaan Sekhon and to a Mr Brandon Kattic as being "my city apartment". 81 After the unit was sold at a loss, it was in the interests of both Mrs Kaur and Harjot Sekhon to contend that the other was the true purchaser of that property and the person responsible for meeting the shortfall on the mortgage. 82 I do not accept Mrs Kaur's evidence that Harjot Sekhon told her that he would be solely responsible for the mortgage payments. As explained later, Harjot Sekhon did meet the mortgage payments, but it does not follow that the parties regarded him as being solely responsible for them in the sense that there should be no later accounting between the parties once the property had been sold. 83 Harjot Sekhon gave evidence that his mother asked him to "put your name on the loan" and that she told him that there was a rental guarantee of $700 per week which would cover the repayments. He also said that his mother told him not to worry, that "it's my problem" and "there will be no loss". 84 The unit was bought off-the-plan and the contract for purchase was not completed until 23 July 2004. According to Harjot Sekhon, when the contract was due to be completed, his mother said to him that there was a shortfall on the loan, that they needed another $200,000 for security and that she asked him to arrange for Bhupinder Sekhon to sign the loan papers. 85 It must have been apparent to both Harjot Sekhon and his mother that there was such a shortfall because the mortgage obtained on the St Leonards property was only for $471,000 which was just a little more than $200,000 short of the purchase price. 86 Harjot Sekhon persuaded his father to sign the mortgage over the Doonside property. He told his father that his mother had agreed to pay for everything. However, I do not accept that Mrs Kaur had told Harjot Sekhon that she would pay for everything or be wholly responsible for the loans. 87 On 23 July 2004, Mrs Kaur and Harjot Sekhon took a transfer of the unit as tenants-in-common in equal shares. No arrangements were made for Mrs Kaur to meet any of the mortgage payments. The payments for both mortgages were met from Harjot Sekhon's account. The rent on the unit was also paid to his account. The mortgage payments on the first mortgage of $471,000 always exceeded the rent of $2,800 per month. The payments on the second mortgage, that is, the mortgage over the Doonside property, of $200,000 were in the order of $1,264 per month. Those payments were made by Harjot Sekhon. 88 There is no evidence that any arrangements were made for Mrs Kaur to meet any of the mortgage payments. Harjot Sekhon said that he made the payments because he loved and trusted his mother, but that does not explain why, if his mother had said that she would be wholly responsible for the mortgage payments, no arrangements were ever proposed for the mortgage payments to be met by her. 89 It does not follow from the fact that Harjot Sekhon made the mortgage payments that it was agreed between he and his mother that she should not be liable to contribute to them, at least once the property was sold. 90 As joint borrowers under the mortgage of $471,000, in the absence of any agreement between them to the contrary, they were both liable to make the mortgage payments, and to the extent that Harjot Sekhon paid more than fifty percent of those payments, he is entitled to contribution from his mother. 91 Harjot Sekhon was not a borrower in relation to the $200,000 mortgage secured over the Doonside property. The borrowers were Bhupinder Sekhon and Mrs Kaur. However, those moneys were raised for the benefit of Mrs Kaur and Harjot Sekhon. Mrs Kaur funded her half-interest in the St Leonards unit by being a joint borrower of the two loans totalling $671,000. That is to say, she contributed fifty percent of the purchase price by those two borrowings. Harjot Sekhon's contribution to the purchase price arose partly from his being a joint borrower of the $471,000 loan and partly by his receiving the benefit of the $200,000 loan. 92 Bhupinder Sekhon was a joint borrower with Mrs Kaur of the $200,000 loan. The moneys which he raised in that way were applied for Harjot Sekhon's benefit. Those moneys were provided by him at Harjot Sekhon's request that he sign the mortgage. Harjot Sekhon, having requested the payment, and having received the benefit of the payment made by Bhupinder Sekhon in circumstances where any presumption of advancement is rebutted, is liable to make restitution to Bhupinder Sekhon in respect of payments made by Bhupinder Sekhon, or for which he is liable. No declaration was sought as between Bhupinder Sekhon and Harjot Sekhon in relation to that matter. 93 But it follows, in my view, that on the sale of the Doonside property and the application of the proceeds of sale of the Doonside property to discharge the existing mortgage that the mortgage debt should be borne equally by both Mrs Kaur and Bhupinder Sekhon. Harjot Sekhon would be liable to indemnify his father in respect of the amounts of the mortgage debt borne by his father. 94 It was submitted for Bhupinder Sekhon that he should be exonerated not by Harjot Sekhon but by his co-obliger, that is, Mrs Kaur. The principles of the equity of exoneration were considered in Dinsdale bht Protective Commissioner v Arthur (2006) 12 BPR 23,509 at 23,514 to 23,515. 95 Had the moneys raised by Bhupinder Sekhon by mortgage been applied for the benefit of Mrs Kaur, then, in the absence of evidence showing an intention to the contrary, as between she and him he would be in the position of a surety and would be entitled to throw the debt primarily on to her share of the property in exoneration of his share. 96 However, as I have explained, the contribution made by Bhupinder Sekhon was for the benefit of Harjot Sekhon rather than Mrs Kaur because Mrs Kaur funded all of her fifty percent interest in the property from the borrowings which she made. Rather, Bhupinder Sekhon is entitled to restitution from Harjot Sekhon. 97 It also follows that, to the extent that Harjot Sekhon has met the mortgage payments on the $200,000 loan, he is entitled to contribution as to fifty percent of such payments from Mrs Kaur. 98 Harjot Sekhon has given evidence that he is currently paying $800 per month on this mortgage, and that his father has, from time to time, assisted him by providing cash amounts of about $300 a month which helps him support that loan. It is unclear precisely how Bhupinder Sekhon's support of about $300 per month has been provided. If it has been provided by Bhupinder Sekhon himself making payments to the mortgagee, then such payments are the equivalent of payments made by Harjot Sekhon because Harjot Sekhon will be liable to indemnify his father in respect of them. 99 Whether the payments of this mortgage have been made to the mortgagee by Harjot Sekhon alone or by Harjot Sekhon and his father, Mrs Kaur is liable to make contribution of fifty percent of the moneys so paid. Neither Harjot Sekhon nor Mrs Kaur is entitled to the orders sought that the other wholly indemnify him and her against their liability for the mortgage payments. Issue 3: Whether Mrs Kaur Made Loans to Harjot and Harjaan Sekhon 100 I turn to the third issue being Mrs Kaur's claim for $47,516.95, now reduced to $37,516.95, for repayment of moneys lent. 101 As at 7 March 2003, Mrs Kaur held a sum of $47,516.95 in a cash management call account with the Commonwealth Bank of Australia. On that day, she opened a three-month term deposit for that sum in the name of Harjaan Sekhon. He was then seventeen. 102 Mrs Kaur originally pleaded that this payment was by way of a loan made by her at the request of Harjaan and Harjot Sekhon. In final submissions, counsel rightly conceded that this claim could not be maintained against Harjot Sekhon, but contended, nonetheless, that the moneys paid into the account in the name of Harjaan Sekhon were paid by way of loan. 103 No evidence was given by Mrs Kaur of any words passing between her and Harjaan Sekhon which could amount to a contract of loan. Her evidence about this matter in her affidavit was not in admissible form. Pursuant to leave, she was asked questions in chief designed to elicit the circumstances in which the $47,516.95 was paid. She said that she paid the money because she was sick and therefore transferred the money into Harjaan Sekhon's account. She said that she did not tell Harjaan Sekhon to transfer money to Harry's, that is Harjot Sekhon's, or his father's account. 104 Harjaan Sekhon transferred $39,500 from the account to Harjot Sekhon on 28 October 2003. Mrs Kaur gave evidence that Harjaan Sekhon had told her that Harjot was in a fix. She also said that when she put the money into Harjaan's account, Harjaan told her that Harjot had promised to him that he would return "our money" back to her. This, however, would not make sense because at the time of the transfer of the moneys to Harjaan Sekhon's account, namely, 7 March 2003, there had been no payment made to Harjot Sekhon and no question of Harjaan Sekhon relaying what Harjot Sekhon is alleged to have said about the return of the money. 105 On the face of it, the opening of a term deposit on 7 March 2003 in the name of Harjaan Sekhon does not constitute a loan from his mother to him. If the $47,516.95 were Mrs Kaur's money prior to its being placed in the term deposit in the name of Harjaan Sekhon, then the payment might be either a gift or a loan, with the presumption being the former. 106 Harjaan Sekhon disputed that the moneys were beneficially those of his mother prior to the opening of the term deposit. 107 Mrs Kaur's case was that the source of her having $47,516.95 was principally that she had received an amount of $34,150 on 31 July 2002 from Harjot Sekhon. This, she said, formed part of the moneys which she then advanced to Harjaan Sekhon. The payment of $34,150 from Harjot Sekhon was, she said, a repayment by Harjot Sekhon of $34,000 which she had paid to him earlier in that month to assist with the purchase of the Kellyville property. She said that on 31 July 2002, Harjot had received $34,150 as a gift from his father. 108 Bhupinder Sekhon did make gifts to his children on or about 31 July 2002. By 25 July 2002, he had received a workers' compensation payment of just in excess of $187,000, which he deposited into his account with the Commonwealth Bank. On 31 July 2002, he drew three cheques or caused three bank cheques to be drawn. One was in favour of Harjot Sekhon in an amount of $65,000. One was in favour of Daisy or Diljit Sekhon in the sum of $40,000. The third was in an amount of $34,150 and was payable to Mrs Kaur. No one suggests that Bhupinder Sekhon intended to make a gift of his own money to Mrs Kaur. 109 Mrs Kaur's case is that the $34,150 she received was money which Bhupinder Sekhon had given to Harjot Sekhon and which Harjot Sekhon repaid to her. However, Bhupinder Sekhon's evidence, which is corroborated by Harjot and Harjaan Sekhon, was that, at a family meeting held in late July 2002, Bhupinder Sekhon gave Harjot a cheque for $65,000, gave Daisy a cheque for $40,000 and told Harjaan that he would give him $45,000. Harjot Sekhon said that his father said to Harjaan: " I'm going to give you $45,000. I'm going to give it to your mum because you are young and when you are older you can take it from her. "
110 I infer that the reason that no gift was made at that time to Sonia Sekhon was because Sonia by then was married. 111 I think it more probable that Bhupinder Sekhon did make gifts to both his sons rather than that he made a gift to Harjot Sekhon in two payments of $65,000 and $34,150. 112 Bhupinder Sekhon also gave evidence that he later withdrew cash amounts totalling $10,850 which he gave to Mrs Kaur to keep on behalf of Harjaan Sekhon, so that in total Harjaan Sekhon received $45,000. This was not denied by Mrs Kaur in her affidavit in reply. 113 I think the more probable explanation for the opening of a term deposit in the name of Harjaan Sekhon was the recognition that the moneys in question belonged to Harjaan Sekhon. I do not accept that they were moneys which, prior to the payment, were beneficially owned by Mrs Kaur. Even if they were, the evidence does not establish that the payment made was by way of loan. There was no good reason advanced in the evidence as to why Mrs Kaur should have made a loan of $47,500 to Harjaan Sekhon at that time. He was seventeen. There was no proposal at that time that he use the moneys to buy any property. 114 Mrs Kaur said that the reason she made the payment was because at the time she was sick. That might be a plausible explanation if she intended to convey that she put money into Harjaan Sekhon's name so that he could draw out sums from time to time as might be required for her benefit which she was unable to do because of illness. But that is not a plausible explanation for opening a three-month term deposit where the moneys would not be available to be so drawn on. 115 For all of these reasons, I reject Mrs Kaur's contention that she made a loan to Harjaan Sekhon. Issue 4: Mrs Kaur's Liability to Repay Loan to Harjaan Sekhon 116 I turn then to the fourth issue being Harjaan Sekhon's claim for repayment of $47,000 which he alleges was lent to Mrs Kaur in August, September and October 2005. 117 Harjaan Sekhon had been injured in a car accident when he was fifteen. He commenced proceedings in the District Court and obtained a verdict by consent in 2001 in the amount of $45,000 plus costs. A net amount of $43,647.80 was paid to the Public Trustee on his behalf. He obtained access to those moneys when he turned eighteen in December 2003. These moneys were the source of the $35,000 admittedly paid by him to Mrs Kaur on 19 August 2005. 118 Harjaan Sekhon said that his mother asked if she could borrow $35,000 to put towards her city apartment. He agreed to do so. He says that she promised to repay that sum when the apartment was sold. He says that she later asked for more money in cash and promised to repay the further advances when her apartment was sold. He says that in October 2005, he prepared a document whereby Mrs Kaur acknowledged having received $47,000, comprised of $35,000 by way of a cheque and $12,000 in cash, from him to be used towards her apartment. He says that the document also provided that Mrs Kaur would make payments towards the end of the year and return the moneys once the apartment was sold. 119 The evidence in relation to the preparation of such a document was corroborated by Mr Brandon Kattic. He was a friend of the family and a close friend of Harjaan Sekhon. Mr Kattic gave evidence that he was asked by Mrs Kaur to come over to witness a document as she was going to borrow $47,000 from Harjaan Sekhon for her apartment in the city. He says he witnessed both Harjaan Sekhon and Mrs Kaur signing such a document. He said that to the best of his recollection the document provided that: " I, Sharanjit, have borrowed $47,000, being $35,000 cheque and $12,000 cash, for my city apartment. Harjaan will be repaid those moneys when the apartment is sold. "
120 Mrs Kaur rejects these contentions. She says that these allegations that there was such a document are a fabrication. Her explanation for the receipt of the sum of $35,000 was initially that it was a gift. She explained it as follows. She said that she pleaded with Harjaan Sekhon to help her and said: " You are my son. You are now going with your father because he has promised you money. However, remember how I have loved and helped you. I gave you $20,000 to buy a car in 2005. I gave you $2,000 in your trust funds. You still have $10,000 left in your account with the Commonwealth Bank. "
121 She deposed that Harjaan Sekhon then took pity on her and agreed to give her the $35,000. In her cross-examination, she denied that the payment of $35,000 was a gift, and appeared to say that it was paid by way of repayment of earlier loans made by her to Harjaan Sekhon. No such case had been pleaded. 122 I do not think it would be right so to characterise her evidence in cross-examination. I think in substance what she was saying in cross-examination was that the payment of $35,000 was a reciprocal favour which Harjaan Sekhon morally was required to make to her because of financial benefits she had earlier provided to him. I do not think that she closely distinguished in her mind the difference between that and the repayment of loans. 123 Nonetheless, her version of the events leading to the payment of $35,000 does not provide persuasive grounds as to why she should have asked for, and why Harjaan Sekhon should have agreed to give her, $35,000 of his damages which he had received as a result of his having been injured in a motor vehicle accident. 124 Apart from Mrs Kaur's assertion, there was no evidence that she had given $20,000 to Harjaan Sekhon to buy a car in 2005. He denied it. Mrs Kaur tendered a bank statement of the St George Bank of Harjaan Sekhon's showing a credit in February 2005 of $27,000 to that account. There was no evidence that that credit, which was described as a "transfer from account", came from an account of Mrs Kaur's. 125 Further, if the $10,000 in Harjaan Sekhon's name with the Commonwealth Bank, being moneys originally transferred to him by Mrs Kaur, were indeed Harjaan Sekhon's moneys, then the fact that he had those moneys would not be a reason why he should make a gift. If, as she originally claimed, Mrs Kaur regarded that $10,000 as her money which Harjaan Sekhon was liable to repay then, again, those moneys did not provide a reason for Harjaan Sekhon to have made a gift of $35,000. 126 The fact that in final submissions Mrs Kaur did not press a claim for repayment of the sum of $10,000 should not obscure the fact that until that point she had been claiming that sum. That being so, the fact that Harjaan Sekhon had those moneys is no reason for him to have made a gift of $35,000 to Mrs Kaur. 127 The question of whether a document was prepared acknowledging the loan and promising repayment depended almost entirely upon the assessment of the credit of Harjaan Sekhon and Mr Kattic on the one hand and Mrs Kaur on the other. 128 I consider Harjaan Sekhon to be a more reliable witness than Mrs Kaur. He was unshaken in cross-examination. Mr Kattic was also unshaken. It is true that he was a close friend of Harjaan Sekhon, but I do not regard this as being sufficient motive for Mr Kattic to have committed perjury. Either a document was prepared as Mr Kattic and Harjaan Sekhon deposed to, or their evidence was perjured. I do not think it was. 129 There is some further corroboration of Harjaan Sekhon's case arising from the late tender of his bank statement. Harjaan Sekhon deposed that he had kept the document acknowledging the loan in a filing cabinet in his bedroom. He deposed that, at an earlier time, he had observed his mother rummaging through his paperwork. The inference from his affidavit was that the reason for his copy of the loan agreement being missing was that it had been abstracted by his mother. 130 Mrs Kaur had said that there was a spot in the pantry where financial records were kept. Whether Harjaan Sekhon kept his financial records in the filing cabinet in his bedroom or in the pantry, it is, to say the least, curious that an original of his bank statement should have been tendered from the possession of Mrs Kaur. That is consistent, and only consistent, it appears to me, with her having taken at least some of Harjaan Sekhon's financial records, and corroborates the conclusion to which I would in any event come on the basis of the evidence of Mr Kattic and of Harjaan Sekhon, that such a document was prepared. 131 In her verified defence to Harjaan Sekhon's cross-claim, Mrs Kaur admitted that certain amounts in cash were paid to her in or about late 2005, although she denied that any such amounts were the subject of any agreement for loan. In the witness box in cross-examination, Mrs Kaur denied having received any cash in 2005. She could provide no explanation for her affidavit verifying her defence which admitted the receipt of moneys. She asserted, unresponsively, when questioned about her affidavit verifying her defence that Harjaan Sekhon had beaten her. I do not think that that answer, as given, was a result of inadequate translation of the interpreter because I cannot conceive of a question in relation to her verification of the affidavit which could have elicited properly such a response. 132 I reject her evidence in the witness box that she did not receive the cash moneys. My finding that the document deposed to by Harjaan Sekhon and by Mr Kattic was prepared, which document acknowledged receipt of $47,000 by way of loan, also leads to the conclusion that that was the sum of moneys advanced. Harjaan Sekhon's bank statements showed consecutive withdrawals of amounts which totalled, or more than totalled, the $10,000 advanced. 133 For these reasons, I conclude that $47,000 was paid to Mrs Kaur as a loan and that she agreed that that sum would be repayable on the sale of the St Leonards unit. The St Leonards unit was sold on 23 March 2006. Interest under s 100 of the Civil Procedure Act 2005 (NSW) was claimed only from 1 April 2006. Harjaan Sekhon is entitled to judgment of $47,000 together with interest at the prescribed rates from that date. Orders and Declarations 134 For these reasons I make the following orders and declarations: 1. I order pursuant to section 66G of the Conveyancing Act 1919 (NSW) that Michael Siderowitz of suite 16, 15-17 Kildare Road, Blacktown, New South Wales, 2148, solicitor, and John William Stafford of suite 21, 15-17 Kildare Road, Blacktown, New South Wales, 2148, accountant, be appointed as trustees for the sale of the property known as 12 Bonney Place, Doonside, New South Wales, 2767, folio identifier 1142/773611 ("the property").
143 HIS HONOUR: I order that these orders and declarations be stayed for 28 days.
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.
Bhupinder Sekhon
Sharanjit Kaur Sekhon
(1984) 155 CLR 242