the contentions on appeal
30 In the appeal, the Commissioner contended that when Mrs Bassili sold the property she became entitled to receive payment of the purchase price, and the charge comprised by Instyle's mortgage only operated as a charge over the property to secure the repayment of the debt, and did not ever operate as a charge over the proceeds of the sale of the property.
31 The Commissioner, also, contended that on a proper analysis, the following process occurred at the settlement of the contract of sale. On the release of its legal charge over the land, each of the registered mortgagees lost its security interest in the land and obtained no security over the proceeds of sale to secure the payment of the debt. As a consequence, each mortgagee was then confined to relying only on the vendor's personal covenant to repay the loans, so that each mortgagee was transformed from a secured to an unsecured creditor of the vendor. On delivery of the unencumbered title, the vendor obtained beneficial interest in all of the monies paid as the purchase price, and the vendor then discharged her personal covenant to each mortgagee from the funds beneficially owned by the vendor. It followed, said the Commissioner, from the fact that the taxpayer held the beneficial ownership of the entire proceeds of the sale before the funds were then used to discharge the debts due to the mortgagees as unsecured creditors, that the s 260-5 notice operated to attach to part of the proceeds of the sale, in priority to the mortgagees.
32 The respondents contended that the Commissioner's argument had not been made in the Federal Magistrates Court. The respondents contended that the Commissioner had conceded before the Federal Magistrate that it did not rely on arguments arising from the fact that settlement of the contract of sale had occurred. The Commissioner's argument before the Federal Magistrates Court, said the respondents, had been confined to an argument that the s 260-5 notice ranked in priority over a registered mortgage which predated the s 260-5 notice, and that the proceeds of the sale of the mortgaged land were, therefore, monies due to the registered proprietor to which the Commissioner's garnishee notice could attach, without reference to the rights of the prior registered mortgagees.
33 However, the respondents did seek to address the Commissioner's argument. In opposition to the Commissioner's argument, the respondents contended that at settlement, no monies ever became available to the taxpayer to which the demand under the s 260-5 notice could attach.
34 First, the respondents referred to the observations of Mason CJ in Foran v Wight (1989) 168 CLR 385 at 396 (Foran):
In a contract for the sale of land, the vendor's obligation to deliver a good title and the purchaser's obligation to pay the purchase money are concurrent and mutually dependent obligations in the sense that they are "simultaneous acts to be performed interchangeably". (Footnotes omitted.)
35 The respondents contended that the bank cheque delivered to Instyle's solicitors, was made payable direct to the mortgagee and the payment was made as part of the simultaneous process whereby the purchase price was paid, the legal charges under the registered mortgages were released and the transfer of the unencumbered title delivered. Therefore, said the respondents, no monies were ever received by the taxpayer upon which the Commissioner's demand made in the s 260-5 notice could operate.
36 The respondents, also, contended, as an alternative, that if the monies comprising the purchase price were to be regarded as having been paid to the proprietor, then the proceeds of the sale were charged with a trust by way of an equitable security for the payment of the mortgage debts.
37 The respondents did not identify specifically the nature of the trust which attached to the proceeds of sale in the hands of the proprietor, but suggested that it could be one or other of a resulting trust, a constructive trust or a Quistclose trust.
38 The respondents, also, observed that neither the simultaneous discharge argument nor the proceeds being fixed with a trust argument, had been considered by the primary judge because the trial had been conducted on the basis that the Commissioner's counsel had renounced any reliance on the fact that settlement had occurred or that the proceeds had been paid into court.
39 The Commissioner contended that the Foran observations were confined only to the relationship between the vendor and purchaser and did not extend to the relationship between the vendor and mortgagee. In my view, the Commissioner's contention is to be accepted.
40 As to the respondents' argument that the purchase monies were held on trust, the Commissioner contended that the argument conflated the position relating to the interests which existed in the proceeds of a sale of land by a mortgagor, with the position in respect of interests which existed in the proceeds of sale, consequent upon the exercise of a power of sale by a mortgagee. It was only in relation to the latter circumstance, said the Commissioner, that the proceeds of the sale were held on trust subject to the equities of any mortgagee, in priority to the mortgagor.
41 Further, the Commissioner contended that there was no evidence to suggest an agreement or mutual understanding between the Commissioner and Instyle that the mortgage was to be treated as if it did charge the proceeds of the sale. There was no foundation in the evidence or in law, said the Commissioner, for the proposition that, notwithstanding the mortgagor's sale, the mortgagee's charge over the real property was converted on the sale of that property, to a right in the proceeds of the sale.
42 In my view, the following legal principles are relevant to the determination of this appeal.
43 First, whilst the Commissioner, by reason of s 260-5(3) of Sch 1 of the Taxation Administration Act, is entitled to issue a notice before the available monies are payable by the debtor to the taxpayer, the demand to pay the available monies in the notice can only have effect, if, and when, the available monies, in fact, become payable by the debtor to the taxpayer.
44 In the case of Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 10, Gibbs CJ set out the position as follows:
Moreover it would be drastic, and generally speaking unconscionable, to require a third party to pay to the Commissioner money which was owed to the taxpayer but which was not yet payable to him, and doubts might be raised as to the constitutional validity of such a provision. In the event of any ambiguity, s 218 should be construed to avoid the unjust result that a third party should be required to pay to the Commissioner moneys that were not yet payable to the taxpayer.
45 The conditionality attending, whether, and, if so, when, there would be monies payable by the purchasers to Mrs Bassili, upon which the demand in the s 260-5 notice would operate, is recognised by the heading and terms of the notice. The heading of the notice stated: "Notice to pay to the Commissioner money that you may owe to Milanka Bassili". The terms of the notice demanded the purchasers to pay the "available money" immediately, if it was owing. The notice then went on to say:
If you do not owe the available money to the debtor but you will later owe it to the debtor, the payment to the Commissioner of Taxation is to be made immediately the money becomes owing to the debtor.
46 The second principle, is that the Commissioner, who has served a s 260-5 notice, is to be regarded as being in a similar position to that of a person who has issued a garnishee notice. In the case of Bruton Holdings Pty Ltd (in liquidation) v Commissioner of Taxation of the Commonwealth of Australia (2009) 239 CLR 346 at [12]-[14], the High Court observed:
12 A notice under s 260-5 gives the Commissioner the right to recover from a third party an amount that the third party owes or may later owe to a taxpayer who is indebted to the Commonwealth for tax. It is established that the remedy given to the Commissioner by s 260-5 is available in respect of revenue obligations, which are given the character of "debts" by force of the Administration Act itself and without prior curial determination.
13 The third party is obliged to pay the Commissioner what is demanded by the notice; failure to comply with the notice is a criminal offence (s 260-20). Section 260-5(3), read with s 260-15, provides, in effect, that the Commissioner has the right to give to the third party a valid receipt and discharge for money paid in compliance with the notice.
14 In these respects, a notice under s 260-5 operates in the manner in which, in Hall v Richards, Kitto J described a garnishee order as operating to attach a debt. Kitto J said:
Such an order, though not working an assignment or giving the judgment creditor any proprietary interest in the debt, yet gives him positive rights with respect to it which a creditor having no more than a judgment does not possess; not merely a negative right to prevent the judgment debtor from accepting payment of the debt or disposing of it, but positive rights for the recovery of what is owing on the judgment, namely a right to give a valid receipt and discharge for the money, and a right in case of non-payment to obtain execution against the garnishee: In re Combined Weighing and Advertising Machine Co. (Footnotes omitted.)
47 The third principle, which arises out of the second principle, is that the debt the subject of the demand made in the s 260-5 notice, is subject to the rights and equities which already exist in respect of the debt (Norton v Yates [1906] 1 KB 112 at 121). This is a consequence of the characterisation of the position of the Commissioner under the s 260-5 notice as being akin to that of a garnishor under a garnishee notice.
48 The demand in this case was issued in respect of monies agreed to be paid by the purchasers pursuant to a contract for the sale of land in respect of which the vendor had promised to deliver unencumbered title to the land. Accordingly, the operation of this principle meant that until such time as the vendor was in a position to deliver unencumbered title, no monies would be payable by the purchasers and, therefore, there were no monies upon which the demand in the s 260-5 notice could operate. Further, there were, at the date of the contract of sale, two mortgages registered against the title. The consequence was that unless and until the mortgagees released their respective registered mortgages, the vendor would not be in a position to deliver unencumbered title pursuant to the contract, and the purchasers would not be obliged to pay the price.
49 In this case, Instyle refused to release its legal charge over the land arising under its second registered mortgage and, therefore, settlement could not take place on 19 February 2010, when it should have, and there was talk of Instyle exercising its power of sale. In those circumstances, the s 260-5 notice was a brutum fulmem. The Commissioner had no right by reason of having issued the s 260-5 notice, to payment from the purchasers, no right to require the prior registered mortgagees to release their respective securities to permit settlement to occur, nor, of course, did the Commissioner have the right, as did the registered mortgagees, to sell the property, in order to generate monies upon which the notice could potentially operate.
50 That, would, therefore, be the end of the case, if the Commissioner was precluded from relying on the fact that settlement had, in fact, taken place, and was, thereby, precluded from advancing the argument made in this Court.
51 However, I propose to deal with the argument made by the Commissioner because, on one view, the argument raised by the Commissioner on appeal, was foreshadowed prior to the agreement being reached by the parties which permitted settlement to occur, and the Commissioner's argument was ventilated in the hearing before this Court, and the respondents had the opportunity to deal with the argument.
52 The fourth principle, is that the demand made under a s 260-5 notice, only applies to monies that are payable to the taxpayer, in his or her capacity as beneficial owner (Tricontinental at 482).
53 In the case of Zuks v Jackson McDonald (a Firm) (1996) 132 FLR 317 at 327-328, Steytler J (as his Honour then was) reviewed in detail, a number of cases in which the courts had considered whether a s 218 notice could operate in respect of monies which were not beneficially owned by the taxpayer because they were subject to an equitable charge. Steytler J observed:
It will be apparent from the aforegoing review of the case law that there is now a substantial body of authority to support the proposition that, upon the proper construction of s 218, service of a notice under that section will not defeat a prior equitable charge.
54 Those observations were made in the context of the consideration of decided cases where the third party's beneficial interest in the funds otherwise due to the taxpayer, arose by way of the operation of an equitable charge over the funds. However, the principle that the s 260-5 notice can only operate on the taxpayer's beneficial interest in the claimed monies, would apply equally where the taxpayer did not hold the beneficial interest in the monies claimed for some other reason, for example, because the monies were trust funds, in respect of which the taxpayer was a trustee.
55 The fifth principle, is that where land the subject of an existing equitable mortgage is sold, the charge under the equitable mortgage over the land converts to an equitable charge over the proceeds of the sale. I do not accept, as the Commissioner contended, that this principle is confined only to circumstances where the funds comprising the proceeds of the sale, have been generated by the exercise of a mortgagee's power of sale.
56 In Hope v Hope [1977] 1 NZLR 582 (Hope), Wilson J held that, in equity, where land over which there was an equitable mortgage, was sold, the charge over the land under the equitable mortgage, was converted on the sale of that land to an equitable charge over the proceeds.
57 In that case, there had been a sale by the first mortgagee of land belonging to the petitioner which, after deductions to pay the first mortgagee's debt, yielded a surplus of approximately $9,500 for the petitioner who was the mortgagor. In matrimonial proceedings, Wilson J ordered that this amount stand as security for the payment of a maintenance order in favour of the respondent, the petitioner's spouse. However, at the time the land had been sold, it had been the subject of an unregistered second mortgage, in favour of a party referred to in the judgment as "Alitalia". The second mortgagee claimed to have a priority interest in the proceeds of sale by reason of its unregistered second mortgage. There was a contest, therefore, between the second mortgagee and the respondent in respect of the priority to the surplus funds.
58 The respondent argued that s 104 of the Land Transfer Act 1952 (NZ) (the equivalent of s 88 of the Property Law Act (Qld)) which provided for the priority in which the mortgagee exercising the power of sale was to distribute the proceeds of the sale, did not contemplate any distribution being made from the proceeds to an unregistered second mortgagee. Therefore, contended the respondent, when the land was sold by the first registered mortgagee exercising the power of sale, the unregistered second mortgagee's interest in the land was lost and the unregistered second mortgagee had no security interest in the surplus funds which had been derived from that sale.
59 Wilson J accepted that s 104 did not refer to a distribution being made to an unregistered mortgagee, but otherwise rejected the respondent's argument. Wilson J accepted the argument made by the second mortgagee that its unregistered second mortgage over the land was converted on the sale of the land to an equitable charge on the proceeds of the sale. It followed, said Wilson J, that when the surplus proceeds were paid to the mortgagor, he took those proceeds, subject to the second mortgagee's security interest which equity had imposed upon the proceeds. At 583, Wilson J observed:
Mr Blackmore, however, submitted that Alitalia's equitable charge on the petitioner's interest in the land was converted, on the sale of the land, to an equitable charge on the petitioner's interest in the proceeds and attached to the moneys payable to the petitioner under para (d) of s 104(1)…
I think that Mr Blackmore is right. Section 104 does not abrogate the rights of mortgagees under unregistered mortgages - it merely postpones them to those of mortgagees under registered mortgages. Paragraph (d) does not vest the surplus from a mortgagee's sale in the mortgagor free from all equities but subject to them. In equity the equitable charge on the land is converted, on the sale of the land, to a charge on the proceeds.
60 In my view, the fact that the proceeds of sale in Hope were generated by a first mortgagee's sale, and, therefore, fell to be distributed pursuant to s 104(1) of the Land Transfer Act (NZ) was incidental to, and did not motivate the finding by Wilson J that on the sale of land the equitable charge over the land arising under an equitable mortgage, converted to a charge on the proceeds of the land. Wilson J did not find that the conversion was the product of the operation of the statute - to the contrary, Wilson J found that s 104 did not touch upon the position of an equitable mortgagee. Rather, said Wilson J, the conversion was effected by the operation of equity which bound the proceeds in the hands of the mortgagor.
61 The decision of Wilson J in Hope, was applied by (among others) Smithers J in Re Murrell; Ex parte Official Trustee in Bankruptcy (1984) 57 ALR 85 (Murrell) and by Young J (as his Honour then was) in the case of AVCO Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 (AVCO). (See, also, Re S & D International Pty Ltd (in liquidation) (receiver and manager appointed) [2009] VSC 225, where Robson J undertook an analysis of the authorities.)
62 Further, in the case of Aircon Heating and Airconditioning Pty Ltd (in liq) v Crane Distribution Ltd [2006] VSC 76 (Aircon), Hansen J held that the principle, whereby the charge held by an equitable mortgagee over the land was converted into an equitable charge over the proceeds of sale of the land, applied in circumstances where the sale of the land was made by the registered proprietor. Hansen J expressly rejected the contention that the principle was confined to circumstances where the sale of the land the subject of the equitable mortgage, was made by a mortgagee exercising the power of sale. At [47]-[51], Hansen J observed:
47 It is clear from these submissions, and it was made clear by Crane's counsel in argument, that the central point of Crane's concern, and ground of opposition to removal of the caveat, was that the consequence of removal and completion of the sale of the property would be that Crane lost its status as a secured creditor and would become an unsecured creditor. That this fundamental premise of Crane's submission is wrong is made clear by established authority to which Crane's counsel did not refer and which Aircon's counsel assumed but without making reference to it. I considered that Aircon's counsel was correct but Crane's counsel challenged the proposition.
48 It is sufficient, by way of authority on this point, to refer to the decision of Young J in AVCO Financial Services Ltd v Commonwealth Bank of Australia. In that case a mortgagee of Torrens System Land had sold the land and paid into Court the balance remaining of the sale proceeds after recouping the amount owed to him. On an equitable chargee applying for payment out of the fund in Court it was held, granting the application, that on the land being sold the equitable charge attached to the fund that was produced as a result of there being a surplus on the sale. In so holding, Young J followed the earlier New Zealand decisions of Beeby v Official Assignee of Pickering and Pickering and Hope v Hope. Indeed, even earlier than AVCO, Smithers J had expressed the same view as Young J, and referred with approval to Beeby and Hope, in Re Murrell. And in Nichols v Go-Tell Nominees Ltd, JD Phillips JA made observations which reflect this position.
49 In seeking to deal with this point Crane's counsel, in a written submission provided subsequent to the hearing, submitted that the observations of JD Phillips JA in Nichols were made in the context of considering the rights of an equitable chargee under a mortgagee sale and that his conclusion was correct because of the application of s 77(3) of the Transfer of Land Act which provides for the application of purchase monies and in particular for the payment of subsequent mortgages and charges in the order of their respective priorities. It was submitted that as the present case was not a mortgagee sale s 77(3) would not protect an equitable chargee. Accordingly, it was submitted, at the highest Crane would be left with an argument that it has a claim as a secured creditor to the proceeds and priority to other unknown claimants such as the liquidator's own claim, secured creditors, other priority creditors and unsecured creditors.
50 I do not accept this submission. In the first place, the submission sought to confine the observations of JD Phillips JA to a context different from the present and, further, to somehow confine the observations to the context of a case in which s 77(3) was applicable. Secondly, the submission ignored the well-established principle of equity referred to above. Thirdly, in my view, the observations of JD Phillips JA are not properly to be understood as confined as Crane's counsel suggested but is reflective of the more general principle that after sale of the secured property an equitable mortgage is converted to a charge on the proceeds of sale for the interest of the mortgagee.
51 It is thus seen that Crane's submission that removal of the caveat and completion of the sale meant that it would lose the benefit of its security as equitable mortgagee and, indeed, become an unsecured creditor, is wrong. (Footnotes omitted.)
63 Further, in the case of Buhr v Barclays Bank plc [2001] EWCA Civ 1223 (Buhr), the Court of Appeal of England and Wales found that where the registered proprietor of land, the subject of an unregistered mortgage, sold the land, the interest which the unregistered mortgagee had in the land was converted into an interest in the proceeds. I do not accept the contention by the Commissioner that this case is distinguishable on the grounds that this was not a case involving land the subject of the Torrens system of land registration. Each of the Hope, Murrell, AVCO and Aircon cases, upheld the operation of equitable principles, in relation to land which was subject to the operation of the Torrens system of land registration.
64 Indeed, Smithers J in Murrell, expressly recognised the co-existence of equitable interests within the Torrens system, and went on to find that such interests were not "destroyed" where there was a mortgagee sale. At 91-92, Smithers J observed:
It is unnecessary for the purposes of the Torrens system that provision be made for the payment to a mortgagor of a sum of money being the proceeds of an interest in land in respect of which the mortgagor had given security to persons who had given valuable consideration therefor to him. The notion that for the purpose of maintaining the purity of the register Parliament might, in effect, abrogate lawful interests arising from transactions entered into in good faith is unacceptable. It is not the purpose of the Torrens system as exemplified in the TLA to destroy, as between a registered proprietor and a person doing business with him, an equitable interest created by the registered proprietor in the ordinary course of business. To destroy such an interest where it was an encumbrance on the land subject to a mortgage pursuant to which a power of sale had been exercised, but not otherwise, would be remarkable indeed. The section may be construed therefore as operating subject to valid claims of third persons against the mortgagor, in respect of a surplus of proceeds from a sale of the property by the mortgagee, as exist according to law.
65 Further, it is to be observed that the premise underlying the observations of Smithers J is that the equitable interests of which he spoke, would arise in respect of the sale of Torrens system land, other than sales effected by the exercise of a mortgagee's power of sale. The contention which Smithers J rejected, was that the same could not be said in relation to sales effected by a mortgagee's exercise of the power of sale.
66 The Commissioner, also, sought to distinguish the decision in Buhr on the basis that the sale by the registered proprietor of the land in that case, had not been authorised by the unregistered mortgagee. One of the bases upon which the Court of Appeal found that the security interest of the equitable mortgagee in the land converted to being a charge on the proceeds of sale, was the writings of Professor Roy Goode. The Commissioner, however, contended that it was Professor Goode's view that where a mortgagee had authorised the sale of land, the mortgagee's rights did not extend to the proceeds of the sale. The Commissioner referred specifically to a passage in Professor Goode's work (Goode on Legal Problems of Credit and Security (4th ed, Sweet & Maxwell, 2008) at 42). However, the part of the passage upon which the Commissioner relies, is distinguishable. That part of the passage (when read with footnote 233) deals with the disposition of an asset by a floating chargee and does not address the circumstances which occurred in this case.
67 Also, the Court of Appeal did not rely only on Professor Goode's writings in reaching its decision. The Court of Appeal based its decision, primarily, on the principle that the security interest of a mortgage over land would extend to the land and any accretions to and substitutions for, the mortgaged land (Buhr at [39]-[44]).
68 In any event, it could not be contended, on the facts in this case, that Instyle authorised the sale of the land by Mrs Bassili on the basis that Mrs Bassili would be entitled to the beneficial interest in the proceeds, and that it would be reduced to the status of an unsecured creditor in respect of the debt secured by the mortgage. (See Buhr at [45].)
69 In my view, therefore, insofar as there was any temporal interval between release by Instyle of its legal charge over the land and its receipt of proceeds of the sale of the land, those proceeds would, on the application of principle referred to in the aforementioned cases, have been the subject of an equitable charge in favour of Instyle.
70 It follows that in this case, the taxpayer, Mrs Bassili, never obtained any beneficial interest in the proceeds of the sale, and, therefore, there were no available monies upon which the demand in the s 260-5 notice could operate. For this reason, I would dismiss the appeal.
71 As mentioned, the question of interests of the respective parties to, and in, the proceeds of the sale at settlement, was not the subject of the Federal Magistrate's judgment. Nor was there argument before this Court which addressed specifically whether, on the evidence, Mrs Bassili held the benefit of the purchasers' promise under the contract of sale to pay the purchase price on trust for the two mortgagees.
72 Had I not come to the view expressed in [69] and [70] above, I would have sought further submissions from the parties on the question referred to in the preceding paragraph. This is because it is my tentative view, alternative to the view expressed in [69]-[70] above, that the evidence was open to support a finding that Mrs Bassili held the benefit of the purchasers' promise to pay the purchase price on trust for the NAB and Instyle, with the consequence that, to the extent that any proceeds of the sale were ever paid to Mrs Bassili, the monies were held on trust for the NAB and Instyle.
73 It is well-established that the beneficiary of a promise may hold that promise on trust for a third party. The trust can attach to the benefit of the whole contract or part of a contractual obligation (Trident General Insurance Co Limited v McNiece Bros Proprietary Limited (1988) 165 CLR 107 (Trident) at 147 Deane J).
74 In Bogert, The Law of Trusts and Trustees (Revised 2nd ed, St Paul, Minn, West Publishing Co, 1984) the following passage appears:
19. Debt Payable From Identified Fund
Debtor Declaring Himself Trustee for Creditor
A debtor may promise to pay his debt out of a specified portion of his present assets or out of described property which he expects to obtain in the future. He may intend merely to create a contract obligation to that effect, or he may intend to give the creditor some kind of a property interest in the specified fund or other asset by making himself a trustee of it for the creditor or in some other way giving the creditor a security interest in it. Examples are found in cases where the debtor agrees to pay out of the future net profits of a business or out of the proceeds or profits from the sale of described property owned by the debtor. (Footnotes omitted.)
75 Whether a promise is held on trust by a promisee, will depend upon the intention of the promisee (Trident at 121 Mason CJ and Wilson J, and at 147 Deane J; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 at 286 McHugh JA (as his Honour then was)). Whether a person had the intention to hold property on trust is objectively determined. The intention may be inferred or imputed from the language used and from the surrounding circumstances (Byrnes v Kendle (2011) 243 CLR 253).
76 One of the most telling of the surrounding circumstances is whether any monies to be received by the intended recipient were to be held or dealt with separately for the account of the beneficiaries, rather than being mingled with funds otherwise belonging to the recipient (Walker v Corboy (1990) 19 NSWLR 382 at 385, 389, 397-398; Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491 at 498).
77 As mentioned, in my tentative view, the evidence before the Federal Magistrate was open to support a finding that Mrs Bassili, at the time she entered into the contract of sale, intended to hold the purchasers' promises on trust for the benefit of the two mortgagees for the purpose of discharging debts due to the mortgagees (or, in Instyle's case, partially discharging the debt) and so procuring the release by each of the registered mortgagees of their respective legal charges at the settlement.
78 That this was Mrs Bassili's intention is open to be inferred from the following facts:
(a) at the time of entering into the contract, Mrs Bassili had no other means of discharging the debts due to the two registered mortgagees,
(b) Mrs Bassili, through her solicitors, insisted in the settlement statements that there be separate bank cheques made payable directly to each of the registered mortgagees,
(c) Mrs Bassili did not claim to have any beneficial interest in the proceeds of the sale of the property, nor did she require that the proceeds of the sale be paid into her bank account. In fact, Mrs Bassili, through her solicitors, renounced any beneficial interest in the proceeds of sale.
79 As I have previously said, for the reasons stated in [69]-[70] above, I would dismiss the appeal.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.