MATTER : The Criminal Property Confiscation Act 2000

Criminal law - Criminal property confiscation - Freezing notice - Objection to freezing notice

Law - Criminal property confiscation - Application for declaration that frozen property has been confiscated

Criminal Property Confiscation Act 2000 (WA), s 8(1), s 9(1), s 30, s 34(3), s 79, s 81, s 84(2), s 156

Misuse of Drugs Act 1981 (WA), s 32A(1)

The plaintiffs' objections to freezing notice no AISFN 050138 are dismissed in part

The freezing notice no AISFN 050138 is set aside in part

Declarations made pursuant to the Criminal Property Confiscation Act 2000 (WA) s 8 that some of the property the subject of freezing notice no AISFN 050138 has been confiscated

1 JENKINS J: The defendant has applied by summons for an order that the plaintiffs' objections to freezing notice no AISFN 050138 (the freezing notice) be dismissed and for a declaration, pursuant to the Criminal Property Confiscation Act 2000 (WA) (the Act) s 30, that property the subject of the freezing notice has been confiscated, pursuant to the Act s 8(1). These are my reasons for decision in respect to the defendant's summons and the plaintiffs' objections.

2 On 3 November 2005 the first plaintiff was arrested and charged with a number of offences under the Misuse of Drugs Act 1981 (WA). If convicted of those offences he was liable to be declared a drug trafficker, pursuant to s 32A(1) of that Act.

3 On 4 November 2005, on the basis of the charges against the first plaintiff and pursuant to the Act s 34(3), a Justice of the Peace issued the freezing notice in respect to all or any property that was owned and/or effectively controlled by the first plaintiff other than any payments received by him from Centrelink on or after the date of the issuing of the freezing notice and all wages/salary derived from his employment with D and G Motor Repairs. In particular, the freezing notice included the following items of property:

The land at Lot 26 on plan 12127, in Certificate of Title Volume 1481, Folio 663, commonly known as 267 Acourt Road, Canning Vale;

The land at Lot 2 on the Strata Plan 27772 together with a share in any common property as set out on the Strata Plan, in Certificate of Title Volume 2047, Folio 285, commonly known as 169 Gibbs Street, East Cannington;

Holden, Apollo, registration number IBZA361, VIN/Chassis number 6T153SG2209908756 and Engine Number 3S8111212;

Holden, Torana, registration number XOL623, VIN/Chassis number ALJ05906A and Engine number JP154866;

Holden, Statesman, registration number IAYC491, VIN/Chassis number 6H8WHY19AIL728642 and Engine number VA121451;

Holden, Commodore, registration number 1BLH875, VIN/Chassis number 6H8VRK19HRL686538 and Engine number VH1361806;

John DEER, Green Sabre, Ride on mower, model number 287707, Type 1274-1E and Code 00052520;

Erindale Modular Roma Bar lounge suite, brown in colour;

Money standing to the credit of G CAMPANA in Australian Finance Group (Macquarie Securitisation Ltd - PUMA) Account number 13930815 and any and all interest payable on such money; and

Monies standing to the credit of G CAMPANA in StateWest Credit Society account number 129912 and any and all interest payable on such money.

4 Items 15 and 16 in the table are debts owed by the first plaintiff. I am not required to consider these further. I will refer to each item of property by its item number in the above table.

5 On 9 November 2005 the freezing notice was filed in this court.

6 After its issue, the police served the freezing notice on a large number of people, in accordance with the Act s 36. In response, the police received a number of statutory declarations, pursuant to the Act s 37. I will only refer to the relevant information contained in them.

7 On 7 November 2005, the first plaintiff declared that he was 44 years of age and married to Heather Maree Campana, the second plaintiff, and had been so married for 24 years. They have three children, being the third to fifth plaintiffs.

(a) he and his wife were the joint owners of item 1 which was valued at approximately $375,000 and it was mortgaged;

(b) he was the sole registered proprietor of item 2 and other persons who had an interest in that piece of land included the second plaintiff, his children, his sister, Maria Loretta Forte and her husband Alex Forte, who are the sixth and seventh plaintiffs respectively, his sister's children, who are the tenth to twelfth plaintiffs, and his parents, who are the eighth and ninth plaintiffs;

(c) he was the registered owner of item 3 and the third plaintiff had an interest in the vehicle;

(d) he was the registered owner of item 4 and the second and fifth plaintiffs had interests in the vehicle;

(e) he was the registered owner of item 5 and the second plaintiff had an interest in the vehicle;

(f) he was the registered owner of item 6 but the vehicle was owned by the fourth plaintiff;

(g) he and the second plaintiff had an interest in all the amounts of Australian currency seized by the police, these being items 7 - 11;

(h) he and the second plaintiff were the joint owners of the chattels, being items 12 - 14; and

(i) he and the second plaintiff also jointly owned a number of chattels and items of household furniture, not listed on the freezing notice.

9 On 14 November 2005, the second plaintiff declared that:

(a) she and the first plaintiff had interests in items 1, 5, 7 - 11 and 12 - 14;

(b) she was aware that the first to twelfth plaintiffs had an interest in item 2;

(c) she was aware that the third plaintiff had an interest in item 3;

(d) she was aware that she, the first plaintiff and the fifth plaintiff had interests in item 4; and

(e) she was aware that the fourth plaintiff, alone, had an interest in item 6.

11 On 13 November 2005, both the third and fourth plaintiffs made statutory declarations in essentially the same terms as their mother's statutory declaration.

12 On 14 November 2005, the second plaintiff made a statutory declaration, said to be on behalf of the fifth plaintiff, to the same effect.

13 On 21 November 2005, the sixth plaintiff made a statutory declaration, on behalf of herself and her three children, the tenth to twelfth plaintiffs, also to the same effect. On the same date, the seventh, eighth and ninth plaintiffs made statutory declarations to the same effect.

14 Finally, Carl Anthony Brucciani of the StateWest Credit Society made a statutory declaration on 23 November 2005 in which he declared that StateWest Credit Society had an equitable interest in item 2 arising out of an acknowledgement of debt entered into by the first plaintiff on 19 July 1999.

15 On 20 October 2006, the first plaintiff appeared in the District Court of Western Australia at Perth. He was convicted, after entering pleas of guilty, of one count of supplying a prohibited drug and three counts of possessing a prohibited drug with intent to sell or supply it to another. The first plaintiff was sentenced to a total term of 4 years' imprisonment and made eligible for parole. He had not spent time on remand in custody prior to that date. Pursuant to the Misuse of Drugs Act s 32A(1) he was declared to be a drug trafficker.

16 Some of the convictions related to cannabis which his counsel told the District Court the first plaintiff had grown at 'his own home', being 267 Acourt Road Canning Vale.

17 In respect to various items of property specified in the above table, when making submissions concerning the effect of the Act on the first plaintiff's asset base, the first plaintiff's counsel told the court:

The first plaintiff and the second plaintiff borrowed an amount of $400,000 to purchase the property and that the loan was reduced by about half when 80 Gibbs Street was sold. The first plaintiff still owed about $180,000 to the bank leaving a reasonable amount of equity in the property. If the State took the view that half of it was the first plaintiffs then half of it would be forfeited.

The first plaintiff and his sister were 'effectively gifted' this property although it was transferred into the first plaintiff's name. The first plaintiff's sister had lived in it with her family since 1995 and he had an interest in the equity of that property valued at some $110,000 subject to equitable interests of the second plaintiff or other family members.

The first plaintiff purchased this vehicle 18 years ago.

The first plaintiff purchased this vehicle from Pickles Auctions for $29,000. This purchase is shown as a redraw on his mortgage account.

The second plaintiff had always wanted a 'very nice room' so the family and the first plaintiff 'all put in together' and purchased this furniture for the second plaintiff from Furniture Spot.

18 The defendant tendered the affidavit of Je Je Byrne, a Detective Senior Constable in the Western Australian Police Service, sworn on 12 December 2006, which effectively set out the above matters and exhibited the statutory declarations to which I have referred, as well as relevant court documents.

19 The plaintiffs tendered the following affidavits:

(a) Affidavit of the first plaintiff sworn 14 February 2008;

(b) Affidavit of the second plaintiff sworn 5 February 2007;

(c) Affidavit of the second plaintiff sworn 18 February 2008;

(d) Affidavit of the seventh plaintiff sworn 24 February 2007; and

(e) Affidavit of the ninth plaintiff sworn 24 February 2007.

20 The first and second plaintiffs gave oral evidence and were cross-examined.

21 The defendant attacked the credibility of the first and second plaintiffs because their affidavits sworn 14 and 18 February 2008, respectively, are substantially the same. For example, par 5 and par 6 of the first plaintiff's affidavit reads:

I can confirm that the Second Plaintiff had control of all the payments and the running of the above property at all material times when we resided there as husband and wife.

The Second Plaintiff and I agreed that she would make all of the payments, including the deposit for the property from her own account with her bank. This was done by the Second Plaintiff and she made all payments in order to secure the loan against the property [5] - [6].

22 This closely compares with the identically numbered paragraphs in the second plaintiff's affidavit which read:

I can confirm that I had control of all the payments and the running of the above property at all material times when I resided there with the First Plaintiff. I continue to make all the payments.

The First Plaintiff and I agreed that I would make all of the payments, including the deposit for the property from my own account with my bank. This was done by the myself and I made all payments in order to secure the loan against the property. [5] - [6].

23 There is another sign that the affidavits were drafted for the first plaintiff and then amended for the second plaintiff's use. It is that in some places the amendments are incomplete. For example, in par 22 of the second plaintiff's affidavit the word 'my' has been left in when it should have been omitted and in par 23 the second plaintiff refers to 'my parent's wills' when she is in fact referring to the wills of her parents-in-law. Further, the annexures and, until they were amended at the hearing, the annexure identifiers in the two affidavits were identical in that they used the first plaintiff's initials.

24 The first plaintiff gave evidence that he was in prison at the time he swore his affidavit and that he gave instructions to his solicitor in respect to the contents of it.

25 On the other hand, the second plaintiff gave evidence that the first plaintiff had no input into the preparation of his affidavit. Later, in re-examination she said, in effect, that she was unaware whether either the first plaintiff's solicitor or counsel discussed the contents of the affidavit with the first plaintiff and that she did not have any involvement in bringing the first plaintiff's affidavit into existence.

26 Regardless of how the two affidavits came into being, the similarities between them cause me to hesitate before accepting their content as the truth. Commonsense and experience tells me that independent witnesses will not recall events occurring years earlier in the same way. Yet these two affidavits relate the substance of conversations and events, sometimes occurring over a decade earlier, in the same manner. For example, paragraphs 16 - 19 of the first plaintiff's affidavit read:

The Eight and Ninth Plaintiffs built a new house on the rear part of the property in 1994 and paid for this with their own monies.

Upon the completion of the house situated on the property, the Eight and Ninth Plaintiffs had to strata title the property.

The Eight and Ninth Plaintiffs agreed with me in a conversation on or about the time that the property was strata titled that the house would be placed in my name so that I would be able to use the house as collateral to establish a better future for me and my family.

The agreement was that the property would be the families, that is to say that it was agreed that it would be in equal proportions for my sister, her husband and myself and the Second Plaintiff [16] - [19].

27 These paragraphs can be compared with the identically numbered paragraphs of the second plaintiff's affidavit which read:

The Eight and Ninth Plaintiffs built a new house on the rear part of the property in 1994 and paid for this with their own monies.

Upon the completion of the house situated on the property, the Eight and Ninth Plaintiffs had to strata title the property.

The Eight and Ninth Plaintiffs agreed with myself and the First Plaintiff in a conversation on or about the time that the property was strata titled that the house would be placed in the name of the first Plaintiff so that he would be able to use the house as collateral to establish a better future for me and my family.

The agreement was that the property would be the families, that is to say that it was agreed that it would be in equal proportions for myself, the First Plaintiff and his sister, and her husband [16] - [19].

28 These and other similarities make me reluctant to accept the evidence of the first and second plaintiffs on the matters dealt with in these affidavits, where their evidence is unsupported by independent evidence.

29 As to the general credibility of the first and second plaintiffs, I have formed the opinion that the first plaintiff is deeply ashamed of the predicament that he has put his family in by his offending. Specifically relating to this matter, he is concerned that his convictions have put the financial security of his wife and children at risk. He is keen to minimise the effect of his convictions on his family. His attitude may be summed up in his comment about the defendant's counsel when he was being cross-examined. The first plaintiff said:

I know I've stuffed up, your Honour, but this guy here is trying to crucify my whole family [ts 41].

30 I have also formed the view that the second plaintiff is very desirous of maintaining family ownership of the property sought to be seized by the State.

31 I am satisfied that these attitudes have coloured the first and second plaintiff's recollections of the history and nature of the ownership of the items, the subject of the freezing notice. Wherever it was possible for them to interpret that history in a manner contrary to the proprietary interests of the first plaintiff, each of them adopted that interpretation with a vigour that did not always reflect an objective assessment of the facts.

(1) When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated -

(a) all the property that the person owns or effectively controls at the time the declaration is made;

(b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.

30. Declarations of confiscation

(1) The DPP may apply to the court for a declaration that property has been confiscated.

(2) On considering an application, if the court finds that the property described in the application has been confiscated under section 6, 7 or 8, the court must make a declaration to that effect.

34 The Act s 9(1) provides that registrable real property that is confiscated under s 8 vests in the State absolutely when the court declares under s 30 that the property has been confiscated. This section may apply to items 1 and 2 in the table. In respect to the other items in the table, s 10 provides that other property that is confiscated under s 8 vests absolutely in the State when the section takes effect in relation to the property.

35 The Act s 79 provides that a person may file an objection to the confiscation of frozen property. I have already outlined that the plaintiffs have taken this step. Section 81 provides that on hearing an objection to the confiscation of frozen property, the court may set aside the freezing notice or freezing order to the extent permitted under s 84. Section 84(2) states:

(2) The court may set aside a freezing notice issued for property under section 34(3) or a freezing order for property that was frozen under section 43(5) if the court finds that it is more likely than not that the person who is or will be charged with the offence does not own or effectively control the property, and has not at any time given it away.

36 The glossary to the Act provides definitions of some of the terms used in the above sections. Relevant definitions are:

effective control, in relation to property, has the definition given in section 156;

give, in relation to property, includes transfer for consideration that is significantly less than the greater of -

(a) the market value of the property at the time of transfer; and

(b) the consideration paid by the transferee;

owner, in relation to property, means a person who has a legal or equitable interest in the property;

property means -

(a) real or personal property of any description, wherever situated, whether tangible or intangible; or

(b) a legal or equitable interest in any property referred to in paragraph (a);

156. Effective control of property

(1) For the purposes of this Act, a person has effective control of property if the person does not have the legal estate in the property, but the property is directly or indirectly subject to the control of the person, or is held for the ultimate benefit of the person.

(2) Without limiting subsection (1), when determining whether a person has effective control of any property, the following matters may be taken into account -

(a) any shareholdings in, debentures over or directorships of any corporation that has a direct or indirect interest in the property;

(b) any trust that has a relationship to the property;

(c) family, domestic and business relationships between persons having an interest in the property;

(d) family, domestic and business relationships between persons having an interest in or in a corporation that has a direct or indirect interest in the property;

(e) family, domestic and business relationships between persons having an interest in a trust that has a relationship to the property;

(f) any other relevant matters.

38 If a party wished to obtain the release of frozen property prior to the making of a declaration that a person was a drug trafficker, they would seek a hearing of their objection prior to the determination of the relevant criminal proceedings. That did not occur in this case, presumably because the plaintiffs were content to wait until both their objections and the defendants' application for declarations under s 30 could be heard together. The defendant acquiesced to the joint hearing. In Director of Public Prosecutions (WA) v Centurion Trust Company Ltd (No 5) [2008] WASC 107 Templeman J pointed out that the Act provided that once property had been confiscated it was no longer frozen property. A court cannot order that a freezing notice be set aside or frozen property be released once property the subject of the freezing notice has been confiscated.

39 The practical way for me to address the issues at this stage is to consider whether, absent the freezing notice, the property in the table was owned or effectively controlled by the first plaintiff at the time the first plaintiff was declared to be a drug trafficker on 20 October 2006 or whether the items were property that the first plaintiff had given away at any time prior to the declaration being made. If the frozen property does not meet these criteria the freezing notice in respect to the property ought to be set aside and the defendants' application for a declaration in respect to it ought to be dismissed. If, on the other hand, the property meets one of the criteria in s 8(1), I should dismiss the plaintiffs' objection and make the appropriate declaration under s 30.

40 In deciding to proceed in this manner, I have not overlooked the fact that s 8 and s 84 are not in identical terms. However, given that the real question in these proceedings is whether the property has been confiscated pursuant to s 8, I should regard that section and s 30 as governing my decision in this matter. The onus is on the defendant to establish that a particular item of property has been confiscated.

41 The Act s 102 provides that these proceedings are taken to be civil proceedings for all purposes and a question of fact to be decided in them is to be decided on the balance of probabilities.

42 I now turn to consider the evidence in respect to each item that is in dispute between the parties.

43 The first and second plaintiffs were married on 29 August 1981. Prior to the purchase of 267 Acourt Road, Canning Vale they lived with their children in a house at 80 Gibbs Street, East Cannington. That house had been purchased for $26,000 by the first plaintiffs' father when the first and second plaintiffs became engaged. The first and second plaintiff moved into that house just after they were married in about 1981 and remained there for approximately 21 years. The title to the home was at some point transferred into the first plaintiff's name. He testified that he had paid his father $50 a week for the property. He also testified that over time the whole of the $26,000 was repaid to his father.

44 The first and second plaintiff each had paid work until their first child was born in June 1985. The second plaintiff then stopped paid work until she returned part time to the paid workforce when their first child was about six months of age. After their third child was born in 1989, the second plaintiff was not substantially engaged in paid work for some years. The first plaintiff financially supported the family during this period. Initially, the first plaintiff worked as an employee of Telecom Australia. In about 1991, after having been made redundant and given a pay out, the first plaintiff and a partner commenced their own motor mechanic business, D and G Motor Repairs.

45 In 1999 the first and second plaintiffs purchased a mobile food business using an incorporated company, Jackpot Holdings Pty Ltd as trustee for the Campana Family Trust. The first and second plaintiffs were the beneficiaries of that trust. The first plaintiff borrowed monies which were used to purchase and operate the business. The business was unsuccessful and the second plaintiff deposed that as at 5 February 2007 it had debts of some $87,000. Eighty-five thousand dollars of this sum was owing on the business loan taken out by the first plaintiff. It appears that this debt is secured by a mortgage over item 2 and the debt is the subject of item 16.

46 The first plaintiff continued to work in his motor mechanics business until his arrest.

47 In about 2003 the second plaintiff commenced full time paid work outside of the home as a supervisor at an indoor sports centre. For some time she had been working part time as a netball umpire. She had also been operating a business as a greyhound trainer. Up until 2005 the second plaintiff's taxable income was very low.

48 On 24 April 2003, the first and second plaintiffs purchased the property at 267 Acourt Street as joint tenants. They and their children moved into the home and it became the family home. The property was purchased for $375,000 and the first and second plaintiffs jointly borrowed $400,000 to fund the purchase. The debt was secured by a mortgage over item 1 and the debt is the subject of item 15.

49 Later in 2003, the home at 80 Gibbs Street was sold and, on 5 November 2003, $123,265.10 of the proceeds from the sale of the Gibbs Street home were used to pay off part of the $400,000 loan. Later that month, a further $61,258.23 was paid off the loan, which may also have been some of the proceeds of the sale of 80 Gibbs Street.

50 The second plaintiff has deposed that all loan repayments were made by her and she has produced bank account statements in her name in an attempt to prove that alleged fact. In the first and second plaintiffs' affidavits they did not acknowledge the contribution that the first plaintiff made to the repayment of the loan from the equity in the home at 80 Gibbs Street. Neither did the second plaintiff acknowledge the contribution that the first plaintiff made to other household expenses prior to his arrest, which no doubt assisted her to dedicate her income to meet the subsequent fortnightly repayment instalments on the loan. The amount of those repayments have fluctuated over time but it seems that the second plaintiff has paid about $90,000 from her bank account in loan repayments.

51 Both the first and second plaintiffs have deposed that it was agreed between them that 267 Acourt Road would be the property of the second plaintiff and that it would ultimately be transferred into her name. The first plaintiff gave evidence that he had not wanted to move from 80 Gibbs Street and that the move was motivated by the second plaintiff who wished to have a larger property in which to train the greyhounds.

52 I place little weight on the second plaintiff's evidence that she intended to purchase the Acourt Street property in her name and that the only reason why the first plaintiff was placed on the title was because the lender was not prepared to lend the purchase price to her. There was no independent evidence of this fact. Further, it was not explained why the lender would not have been prepared to have the first plaintiff guarantee a loan to the second plaintiff. Also, this position is at odds with the submissions made by the first plaintiff's counsel to the District Court. Lastly, if the position was, as the second plaintiff alleges, it is unclear to me why the first plaintiff put all his equity from the sale of 80 Gibbs Street towards repayment of what the second plaintiff says is a loan incurred solely for her benefit. Even if the second plaintiff's evidence in this respect was correct in her evidence, there is an inference available from the evidence of the first plaintiff that the motivation for considering putting the property in the second plaintiff's name was his business' financial difficulties and not a bona fide desire to acquire property for the second plaintiff alone.

53 The plaintiffs submit that although this property was purchased in joint names, the evidence establishes that the second plaintiff's interest in the property is greater than the first plaintiff's interest by virtue of her greater financial contribution to it.

54 The defendant submits that the first plaintiff, as a joint tenant of the property, has a 50% interest in it, subject to the equitable interest of the mortgagee. It says that any beneficial interests of the parties are determined at the time of purchase. It says that mortgage payments made subsequent to the purchase do not form part of the purchase price and thus do not alter the interests of the parties: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 257. Further, the defendant says that the evidence is of the purchase of the property as a joint enterprise with each party contributing equally to the purchase by way of jointly obtained finance and accordingly the second plaintiff should be found to have only a 50% beneficial interest in the property: Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583.

55 The first and second plaintiffs are the registered proprietors as joint tenants of the Acourt Street property. Where two persons have contributed the purchase price of property in unequal shares and the property is registered in joint names, there is, in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportion in which they contributed the purchase money: Calverley v Green 246 - 247, 266 - 267.

56 The evidence establishes that the first and second plaintiffs contributed equally to the purchase price in that they jointly borrowed the whole of the purchase price and the proceeds of the loan were then used to buy the property. Thus, on the face of it, the first plaintiff holds the property in trust for himself and the second plaintiff in equal shares, subject to the interest of the mortgagee.

57 There is other evidence that the first and second plaintiffs intended to hold equally their interests in the property. I am satisfied that those parties purchased the Acourt Street property as a replacement matrimonial home. At the time they were apparently happily living together with their children. The fact that the second plaintiff may have been more desirous of moving because she wished to obtain a property at which she could train her greyhounds does not cause me to alter my view that the Acourt Street property was a replacement matrimonial home, purchased in equal shares by the first and second plaintiffs.

58 To hold that the second plaintiff had a greater interest in the property than the first plaintiff I would have to find that the second plaintiff contributed more than 50% of the purchase price and that there was no presumption of advancement in favour of the first plaintiff. I acknowledge that there is no presumption of advancement in favour of a husband who receives financial contributions from his wife.

59 As to the first issue, it seems that since Calverley v Green it is settled law in Australia that the extent of the beneficial interests of the parties is to be determined at the time the property is purchased and the trust is created: La Housse v Counsel [2008] WASCA 207 [220]. Thus, the fact that the regular repayment instalments on the loan have been made by the second plaintiff is not relevant in determining the extent of the interests of the first and second plaintiff in the Acourt Street property: Calverley v Green 252. What is relevant is that the purchase price was equally contributed by the first and second plaintiffs. Consequently, I am not prepared to find that the second plaintiff has made greater contributions to the purchase of the property.

60 Even if I am wrong in finding that the extent of the parties' beneficial interest is to be determined at the time of purchase, before it could be found that the second plaintiff had made a greater contribution to the acquisition of the Acourt Street property, the plaintiffs would have another hurdle to overcome. It is that 80 Gibbs Street was owned by the first plaintiff and he used $180,000, approximately, of the proceeds from the sale of that house to repay the loan used to buy the Acourt Street property. In the absence of the establishment of a trust in favour of the second plaintiff in respect to all of some of that money, that was a contribution made solely by the first plaintiff. In that circumstance, I could not find that the second plaintiff had made a greater contribution to the repayment of the loan than the first plaintiff.

61 I am satisfied that the first and second plaintiffs are joint legal and beneficial owners of this property, subject to the interest of the mortgagee. I do not accept the first and second plaintiff's evidence that the first plaintiff did not have an interest in this home or that it was intended that his interest was to be reduced by the value of the second plaintiff's financial contributions. The first and second plaintiffs purchased the property in joint names and, ostensibly, made equal contributions to the purchase price through jointly borrowing the purchase price and, thus, by both being equally liable to repay the loan. They have also both made substantial contributions to the repayment of the loan.

62 I am satisfied that up until the making of the declaration that the first plaintiff was a drug trafficker the first and second plaintiffs intended that they would equally enjoy the benefit of money each had contributed to the acquisition of the property. I find that as at 20 October 2006 the first plaintiff owned 50% of 267 Acourt Road, Canning Vale, subject to the interest of the mortgagee.

63 The ninth plaintiff has deposed that she and the eighth plaintiff bought the property at 169 Gibbs Street, East Cannington in 1966. They lived in the house at that address until 1992. In 1992 they divided 169 Gibbs Street into two strata titled lots. They later transferred the portion comprising approximately one-third of the block into the name of the first plaintiff and retained ownership of the second lot. On the transfer the consideration was stated to be 'natural love and affection'. The date of the transfer is 20 July 1995.

64 The ninth plaintiff has deposed that in 1994 she told the sixth and seventh plaintiffs that the property at 169 Gibbs Street 'belonged to the family' and that 'they could live there rent free for as long as they wished provided that they pay all expenses associated with that property'. From that time she says that she has never paid any rates, taxes or insurance for the property and believed that they had been paid by the sixth and seventh plaintiffs.

65 It is not clear which 'family' the ninth plaintiff was referring to or who were the members of it. By inference it seems that the family were the sixth and seventh plaintiffs and their children.

66 The seventh plaintiff has deposed that in or about April 1994 his mother-in-law, the ninth plaintiff, told he and the sixth plaintiff, his wife, that 169 Gibbs Street was a 'family home' and that he and the sixth plaintiff and their children could live there, rent free, for as along as they liked provided they pay all expenses associated with the land. He also deposed that the ninth plaintiff told him that she wanted the house to remain in the family 'for their grandchildren to use as well'. This is to be contrasted with the affidavit of the ninth plaintiff in which she said that she 'hoped [the sixth and seventh plaintiffs'] children would also live there'.

67 The seventh plaintiff has deposed that he has not paid any rent to live at 169 Gibbs Street but he has paid all rates, taxes and insurance on the property. He also said that he and the sixth plaintiff have paid for improvements to the property, including tiling the bathroom and front verandah, installing a gate, laying carpets, painting the house and maintaining the garden. The cost of these improvements is not in evidence. A market appraisal of the property in 2007 described its condition as 'very aged' and opined that it would be purchased either as a new home site or for 'extensive renovations'.

68 In her affidavit of 5 February 2007, the second plaintiff deposed that this property was transferred to the first plaintiff 'on the basis that this property was to be shared with our families'. This does not entirely coincide with the evidence of the seventh and ninth plaintiffs.

69 The second plaintiff also deposed that the sixth and seventh plaintiffs and their children have lived in the property for the previous 13 years. The second plaintiff deposed that neither she nor the first plaintiff have made any payments of rates, taxes or payments for the upkeep of the property. She deposed that the sixth plaintiff has paid all the rates, land rates, and any maintenance for the property. The second plaintiff annexed to her affidavit a number of what she said were 'payments' made by the sixth plaintiff in relation to this property. These documents prove that the seventh plaintiff has paid land tax, water rates (service and usage) and local government rates for the property for a number of years. The first plaintiff was charged land tax for the property because it was not his principal place of residence.

70 In the second plaintiff's affidavit of 18 February 2008, she deposed that her parents-in-law, the eighth and ninth plaintiffs, agreed with herself and the first plaintiff in a conversation at about the time the property was strata titled that it would be placed in the name of the first plaintiff so that he would be able to use the house as collateral to establish 'a better future for me and my family'. She said that the agreement was that the property would be 'the families, that is to say that it was agreed that it would be in equal proportions for myself, the first plaintiff and his sister, and her husband'. She said that it was agreed that the first plaintiff's sister and her husband would reside at the property rent free for as long as they wished to do so and that the first plaintiff's parents wanted the property to remain in the family. She said that neither she nor the first plaintiff have ever resided at the property. The first plaintiff's affidavit of 14 February 2008 is in the same terms.

71 In the second plaintiff's evidence, she said that the conversation in which the agreement was reached occurred in her parents-in-law's home at 169 Gibbs Street. She said that the sixth and seventh plaintiffs were not present. She also gave evidence that her eldest daughter, the third plaintiff, had been living in the property for the nine months prior to the hearing. She said that 'they' were paying all the expenses in respect to it. I presume that by 'they' she was referring to the third plaintiff and her fiancé.

72 The first plaintiff gave evidence that the conversation took place at 169 Gibbs Street between his parents, he and the second plaintiff. He was asked why the sixth and seventh plaintiffs were not present. He said that his sister was only recently married. He said that he and his wife, the second plaintiff, used to go to his parents for a meal on Wednesday night. He said that they were talking about the property and his father told him that it was to remain his and his sister's and it was to remain in the family. He did not want it sold because it had sentimental value. The first plaintiff said that he wanted to 'start another business' and 'buy a mechanic's shop', so he asked his father if he could use the property as collateral. He said his father agreed to that but said that he was not allowed to sell the property or to rent it. He said that his father told him that he had the first choice if he wanted to live in the property but that as it was too small for his family he let his sister and brother-in-law live in it. The first plaintiff claimed that his sister was fully aware of what was said even though she was not present.

73 The first plaintiff subsequently used the property as security for a loan in 1999 to purchase the mobile food business. A mortgage to the StateWest Credit Society was registered on 21 July 1999. By then the first plaintiff had abandoned his plan to buy a mechanic's shop.

74 The first and second plaintiffs annexed to their affidavits copies of the wills of the eighth and ninth plaintiffs which they said indicated the first plaintiff's parents' intentions in respect to their property. Of course, the wills cannot indicate their intentions with respect to property they have disposed of, such as 169 Gibbs Street. In any event, in their wills the eighth and ninth plaintiffs leave their property to their respective spouse, if then living, and if not to their children and, if they predecease them, to their grandchildren. Neither the second nor seventh plaintiffs are mentioned in the wills. There are no bequests in the wills which can not be met if the transfer of the property to the first plaintiff was a gift to him, alone. I find the content of the wills to be of little assistance.

75 Other than their statutory declarations, I have not received evidence from the sixth or eighth plaintiffs.

76 The plaintiffs submit that the property is the 'families and not for the sole and exclusive use or ownership' of the first plaintiff. It is said that the first plaintiff holds the property, by virtue of a constructive trust, in trust for himself, the second, sixth, seventh, eighth and ninth plaintiffs. The shares of each of these parties were not identified except that it was submitted that the first plaintiff has a one-sixth interest in the property. This submission is contrary to the statutory declarations made by all the plaintiffs.

77 The defendant submits that given that the first plaintiff is the sole proprietor of the land together with a share in any common property as set out on the strata plan, and that as there is no evidence of any instrument in writing which created or disposed of the first plaintiff's interest in the land, the only possibility is that some other person or persons has an interest in the land arising out of a resulting or constructive trust, not evidenced in writing.

78 The defendant submits that in accordance with his Honour Glass JA's judgment in Allen v Snyder (1977) 2 NSWLR 685, 690 the following principles applied to the question of whether the facts gave rise to a constructive trust:

1. Except for the presumption of advancement, the principles governing equitable interests are the same in disputes between spouses as in a dispute between other parties;
2. In the absence of writing the Court will give effect to an oral agreement by which the claimant, by contributions of one sort or another, has facilitated the acquisition of the home;

1. What is enforced is an actual intention, inferred as a matter of fact, not an imputed intention which they never had, but would have had, if they had applied their minds to it; and

1. Proof of expenditure or services for the benefit of the household is insufficient, standing alone, to show a common intention as to ownership of the home.

79 The above four principles are directly applicable to constructive trusts between spouses. They must be adapted before they could apply to the facts of this case.

80 In respect to a possible resulting trust arising out of the transfer of the property to the first plaintiff, without consideration, in favour of the eighth and ninth plaintiffs, the defendant submitted that the presumption of a resulting trust does not arise from a voluntary conveyance of Torrens system land: Newcastle City Council v Kern Land Pty Ltd (1997) 42 NSWLR 273, 281. The Newcastle City Council case relied on the Conveyancing Act 1919 (NSW) s 44(1) which is identical to the Property Law Act 1969 (WA) s 38 which states that 'no use shall be held to result merely from the absence of consideration in a conveyance of land as to which no uses or trusts are therein declared'.

81 I note that the plaintiffs do not rely on the law relating to resulting trusts in order to establish the interests of the eighth and ninth plaintiffs. Indeed, the plaintiffs do not provide any details of, or legal authority to found, their claim that the eighth and ninth plaintiffs retain an interest in the property. The plaintiffs' submissions are further compromised by the fact that there is no evidence from the eighth plaintiff which may ground a basis for finding that he did not completely dispose of his legal and beneficial interest in the property when he transferred it to his son in 1995. Even the affidavit of the ninth plaintiff said nothing about the basis on which she transferred her interest in the property to the first plaintiff. It merely said that she told the sixth and seventh plaintiffs in 1994 that the property belonged to the 'family' and that those plaintiffs could live there rent free for as long as they wished. The seventh plaintiff has deposed that a similar conversation took place in about April 1994. However, the transfer of the property to the first plaintiff took place on 20 July 1995, over a year after that alleged conversation.

82 Where parents convey property to a child, irrespective of the child's age, there is a presumption that the parents intended to give the child their legal and beneficial interest in the property. That presumption can be rebutted by showing, on the balance of probabilities, that the parents did not have that intention. It is the parent's intention at the time of the transfer which is to be ascertained: Calverley v Green, 246 - 251 per Gibbs CJ.

83 Although this presumption is rebuttable, before a finding that it has been rebutted can be made proof of a 'definite intention' on behalf of the transferors to retain beneficial title must be proven: Drever v Drever [1936] 10 ALJR 207 per Dixon J.

84 The evidence that is relevant to prove the intention of the eighth and ninth plaintiffs includes their acts and declarations before or at the time of transfer or so immediately after it so as to constitute a part of the transaction: La Housse v Counsel [22]. Declarations made some time before the transfer of the property are unlikely to provide much assistance in proving the eighth and ninth plaintiffs' intentions at the time of the transfer to the first plaintiff.

85 Given the presumption and the evidence I am unable to find that the eighth and ninth plaintiffs retained any interest in the property after they transferred it to the first plaintiff. There is no evidence from either the eighth or ninth plaintiffs of their 'definite intention' to retain beneficial ownership of the property. The evidence of the seventh plaintiff of a conversation with the ninth plaintiff over 12 months prior to the transfer is insufficient to rebut the presumption of advancement. The first and second plaintiffs' evidence, unsupported as it is by evidence from the eighth and ninth plaintiffs does not persuade me that the eighth and ninth plaintiffs had a definite intention to retain beneficial control over the property. On the contrary, I am of the view that all that evidence goes to prove is that the eighth and ninth plaintiffs had a nebulous intention to rely upon their parental position as a source of placing pressure on the first plaintiff not to sell the property and to either live in it himself or permit his children or his sister and her children to live in the property.

86 I now turn to consider the plaintiffs' claim that the second, sixth and seventh plaintiffs have an interest in the property. Prior to July 1995 the property was owned by the eighth and ninth defendants. Other than his statutory declaration in which he deposes that all the plaintiffs have an interest in the property, I have received no evidence from the eighth plaintiff. There is an identical statutory declaration from the ninth plaintiff. Additionally, I have received the affidavit of the ninth plaintiff, the contents of which I have already detailed. That affidavit does not assist me to determine the circumstances in which the eighth and ninth plaintiffs disposed of their interest in the property to the first plaintiff in July 1995.

87 In July 1995 the eighth and ninth plaintiffs transferred their interest in the property to the first plaintiff in consideration for their natural love and affection for their firstborn child. None of the other plaintiffs contributed to the acquisition of the property by the first plaintiff. Neither was there any kind of agreement between the plaintiffs, either orally or in writing, by which any of the plaintiffs agreed to contribute to the acquisition of the property by the first plaintiff.

88 The seventh plaintiff, whilst he was residing in the property, made payments related to its upkeep and the provision of services to it. These were not contributions to the acquisition of the property and neither was the transfer of the property to the first plaintiff dependent upon any agreement with the sixth and seventh plaintiffs that they would make such contributions or payments. That is an entirely different question to whether they felt under a moral or familial obligation to contribute to the costs related to the property whilst they were residing in it. Those payments have apparently ceased now that the sixth and seventh plaintiffs are no longer living in the property. Given the current condition of the property the contributions towards its upkeep could not have been great.

89 Proof of the fact that the first plaintiff believed that he owned the property is the fact that in 1999 he mortgaged the property to the StateWest Credit Society Ltd as security for a loan from the StateWest Credit Society Ltd. This was apparently done without the formal approval of the second, sixth and seventh plaintiffs and without complaint by them that it compromised or ignored their alleged interest in the property.

90 Further, the evidence establishes that it is the first plaintiff who controls who resides in the property. The evidence is that the sixth and seventh plaintiffs lived in the property for some years because neither the first plaintiff nor any member of his immediate family wished to occupy it. That situation has changed because the third plaintiff now lives in the property.

91 I do not discount the possibility that the first plaintiff was told by the eighth and ninth plaintiffs that although they were transferring the property to him, it was 'the family's' property in the sense that he should make it available for other members of the eighth and ninth plaintiff's extended family to reside in, if they so desired. That stipulation may have given rise to a moral or familial obligation but it did not create a binding legal or equitable interest in the property, in favour of any of the other plaintiffs.

92 However, that evidence does highlight the difficulty the plaintiffs have in identifying the beneficiaries of the alleged trust and the obligations on the first plaintiff as the alleged trustee. As to the first issue, the plaintiffs have not consistently identified the beneficiaries. This is understandable as, even accepting the plaintiffs' evidence, the eighth and ninth plaintiffs' declarations were too vague to enable anybody to determine which members of the family were supposed to benefit under the alleged trust and to what extent. As to the second issue the obligations of the first plaintiff, as trustee, are not ascertainable. On the one hand he says that he was told not to sell the property but on the other hand he is permitted to unilaterally encumber it without the approval of any member of the family and in a manner that may ultimately lead to its loss to the alleged beneficiaries. The vagueness of the eighth and ninth plaintiff's alleged declarations assist me to decide that they did not intend to create a trust which would create enforceable obligations on the first plaintiff.

93 I am thus unable to find that the first plaintiff holds the property on trust for himself, the second, sixth, seventh, eighth and ninth plaintiffs. In my view, as at 20 October 2006, the first plaintiff owned all the legal and equitable interest in 169 Gibbs Street, East Cannington, subject to the interest of the StateWest Credit Society arising out of an acknowledgement of debt entered into by the first plaintiff on 19 July 1999.

Item 3 - Holden Apollo registration number 1BZA 361

94 The Holden Apollo vehicle was acquired by the first plaintiff on 2 September 2005. It remains registered in his name.

95 The plaintiffs rely upon the affidavit of the second plaintiff sworn 5 February 2007 in which she stated that this motor vehicle is owned by her daughter, the third plaintiff. She deposed that the first plaintiff 'gave' it to the third plaintiff as a 'gift'. She said that the first plaintiff 'purchased' the vehicle from money from the mobile food business and the sale of another vehicle. She said that there was a balance which the third plaintiff 'was to pay'. There is no evidence as to whether the third plaintiff paid the balance and, if so, the sum she paid. The second plaintiff gave evidence that the vehicle was registered and insured in the first plaintiff's name because he believed that the insurance premiums would be much less if the vehicle was registered in his name. She deposed that neither she nor the first plaintiff had ever used the vehicle.

96 There was no additional evidence given at the hearing in respect to this vehicle.

97 The third plaintiff is now 23 years of age. Apart from the third plaintiff's statutory declaration, in which she asserts that she has an interest in this motor vehicle, I have not received any evidence from the third plaintiff.

98 Annexed to the second plaintiff's affidavit was a copy of a valuation of this vehicle prepared by Lindsay Fagin, trading as Linkar Pty Ltd, in which he values the vehicle at $900. The date of the valuation is 20 January 2007. The motor vehicle was purchased for $1,800.

99 The plaintiffs submit that this vehicle was a gift to the third plaintiff, the first plaintiff has never exercised any effective control over the property and the third plaintiff has contributed to the purchase of it.

100 The defendant submits that a gift given by a drug trafficker remains the property of the drug trafficker pursuant to the Act s 8(1)(b).

101 Unlike real property, the registration details of the motor vehicle are not proof of indefeasible title. They are merely some evidence of ownership.

102 The evidence proves that the vehicle was purchased by the first plaintiff and he gave it to the third plaintiff at about the time of its purchase. It is unclear whether the third plaintiff paid anything for the vehicle but even if she did it seems that it was considerably less than the value of the vehicle.

103 I find that the first plaintiff did not own or effectively control this vehicle at the time he was declared to be a drug trafficker. However, I find that he gave away the vehicle prior to the declaration being made.

Item 4 - Holden Torana registration number XOL 623

104 The first plaintiff is the registered owner of a Holden Torana sedan which was acquired by him on 23 December 1978.

105 The second plaintiff, in her affidavit sworn 5 February 2007, deposed that this motor vehicle was purchased by her and the first plaintiff, when they were about 18 years of age, with monies from the first plaintiff's bank account. She deposed that the first plaintiff paid a deposit of $400 on the car and it was purchased on hire purchase to the value of approximately $4,800. She deposed that this was paid in approximately 12 months. She deposed that the motor vehicle was registered in the first plaintiff's name and that both of them used it. She deposed that the motor vehicle has not been used for at least 12 years, it has no engine and that she and the first plaintiff kept the vehicle because they intended to give it to their son, the fifth plaintiff. Mr Fagin has valued the vehicle at $3,500 and notes that it is in poor condition. His valuation confirms the evidence of the second plaintiff in regard to the condition of the vehicle.

106 There was no cross-examination of the plaintiffs in respect to this motor vehicle.

107 The registration of this motor vehicle in the first plaintiff's name is not conclusive evidence of his ownership of it. However, the undisputed evidence is that money for the purchase of the motor vehicle came from the first plaintiff, prior to his marriage to the second plaintiff. As at 20 October 2006, this vehicle was solely owned by the first plaintiff.

Item 5 - Holden Statesman registration number 1AYC 491

108 This motor vehicle is registered in the name of the first plaintiff and was acquired by him on 6 November 2003.

109 The second plaintiff, in her affidavit sworn 5 February 2007, deposed that the motor vehicle was purchased for approximately $29,000. She said that it was purchased with the balance of monies borrowed to purchase the Acourt Road property plus the proceeds of sale from a previous motor vehicle. She deposed that that vehicle had been purchased approximately 12 years earlier by way of a hire purchase agreement and that all hire purchase payments had come from her bank account.

110 She deposed that the Holden Statesman was registered in the first plaintiff's name due to the insurance premiums being lower. She said that it was also in the first plaintiff's name because of his no claim bonus in respect to insurance. In evidence, she also said that in their family the first plaintiff had always been the registered owner of the motor vehicles.

111 The second defendant deposed that she had always used the vehicle to drive to and from work.

112 In evidence, the second plaintiff said that she decided that she wanted $25,000 to purchase a vehicle and that she needed the first plaintiff to 'put his name' on the mortgage so that she could obtain both the loan for the Acourt Road property and the additional money for the purchase of the car. She also said that she asked the first plaintiff to go and find her a car. She said that she did not know enough about cars to go and purchase one.

113 There is evidence that after the freezing notice was issued, the first and second plaintiffs maintained possession of this motor vehicle. Whilst in their possession it was involved in an accident. It has been 'written off' and an insurance claim is pending in respect to it.

114 Although this vehicle is registered solely in the first plaintiff's name, I am satisfied on the basis of the evidence that the motor vehicle is owned jointly by the first and second plaintiffs, subject to any interest of the insurer under the relevant insurance policy. It was purchased by the first and second plaintiffs with monies borrowed jointly and from monies from the sale of another motor vehicle which appears to have been joint property in that it was purchased by them during their marriage.

115 I do not accept the first and second plaintiffs' evidence that the Holden Statesman was owned solely by the second plaintiff. It was purchased jointly by the first and second plaintiffs during the joint enterprise of their marriage. As at the date he was declared to be a drug trafficker the first plaintiff owned 50% of this motor vehicle.

Item 6 - Holden Commodore registration number 1BLH 875

116 The State has withdrawn its application for a declaration that the Holden Commodore has been confiscated. It apparently concedes that there is insufficient evidence to support a finding that this item has been confiscated under the Act.

117 Various sums of money were seized by the police from the first plaintiff on 3 November 2005. These sums totalled $11,822.

118 The plaintiffs have withdrawn their objections to the confiscation of this money.

119 Given the evidence, scant though it is, in respect to these sums of money, and the lack of any objection to their forfeiture, I find that they were owned by the first plaintiff as at the date he was declared to be a drug trafficker.

120 The State has withdrawn its application for a declaration that the John Deere ride on mower has been confiscated. It apparently concedes that there is insufficient evidence to support a finding that this item has been confiscated under the Act.

Items 13 and 14 - nine piece dining suite and lounge suite

121 A nine piece dining suite and a lounge suite were located by the police in the home at 267 Acourt Street, Canning Vale.

122 The second plaintiff in her affidavit sworn 5 February 2007 deposed that these items of furniture were purchased in 2003 by the third and fourth plaintiffs and gifted to her and the first plaintiff. She deposed that she contributed $300 to the total purchase price of $3,700. Annexed to her affidavit was an invoice from a furniture retailer for these items of furniture. Also annexed to her affidavit was a bank statement showing that 13 days prior to the date of the invoice, the second plaintiff withdrew $750 in cash from her bank account. She deposed that $300 of this money went towards the purchase of the furniture.

123 Three hundred dollars represents 1.23% of the purchase price of the furniture.

124 Given the contribution that the second plaintiff made to the purchase of the furniture and the evidence that their children gifted their interest in the furniture to the first and second plaintiffs jointly, I find that the first plaintiff had, a 48% interest in the furniture at the date he was declared to be a drug trafficker.

The land at Lot 26 on plan 12127, in Certificate of Title Volume 1481, Folio 663, commonly known as 267 Acourt Road, Canning Vale;

1. The freezing notice is set aside in respect to 50% of the property.

2. The first plaintiff's 50% interest, subject to the interest of the mortgagee, is declared to be confiscated.

The land at Lot 2 on the Strata Plan 27772 together with a share in any common property as set out on the Strata Plan, in Certificate of Title Volume 2047, Folio 285, commonly known as 169 Gibbs Street, East Cannington;

2. The first plaintiff's 100% interest, subject to the interest of the mortgagee, is declared to be confiscated.

Holden, Apollo, registration number IBZA361, VIN/Chassis number 6T153SG2209908756 and Engine Number 3S8111212;

Holden, Torana, registration number XOL623, VIN/Chassis number ALJ05906A and Engine number JP154866;

Holden, Statesman, registration number IAYC491, VIN/Chassis number 6H8WHY19AIL728642 and Engine number VA121451;

1. The freezing notice is set aside in respect to 50% of the vehicle.

2. The first plaintiff's 50% interest in the vehicle is declared to be confiscated.

Holden, Commodore, registration number 1BLH875, VIN/Chassis number 6H8VRK19HRL686538 and Engine number VH1361806;

1. The freezing notice is set aside in respect to this property.

2. The application for a declaration that the property has been confiscated is dismissed.

2. The first plaintiff's 100% interest in this property is declared to be confiscated

John DEER, Green Sabre, Ride on mower, model number 287707, Type 1274-1E and Code 00052520;

1. The freezing notice is set aside in respect to this property.

2. The application for a declaration that the property has been confiscated is dismissed.

1. The freezing notice is set aside in respect to 52% of the interest in this property.

2. The first plaintiff's 48% interest in this property is declared to be confiscated.

Erindale Modular Roma Bar lounge suite, brown in colour.

1. The freezing notice is set aside in respect to 52% of the interest in this property.

2. The first plaintiff's 48% interest in this property is declared to be confiscated.