Dogra v Dogra

Dogra v Dogra - [2023] NSWSC 1642 - NSWSC 2022 case summary — Zoe

[4]

THE PARTIES

All three parties were born in India. The plaintiff (by then a widow) accompanied her son, the second defendant, to Australia in May 2000. He was granted a permanent residency visa in June 2002. She obtained her permanent residency visa in March 2005. The first defendant came to Australia in June 2004, shortly after her marriage to the second defendant.
The plaintiff was born in March 1944 and is presently aged 79 years. She was married to Manohar Dogra, but he died in January 1995. There were two children of the marriage: a daughter, Punam, born in July 1968 and now aged 55 years; and a son, Kapil (the second defendant), born in January 1971 and now aged 52 years.
The first defendant was born in October 1976 and is now aged 47 years. She and the second defendant were married in Mumbai, India, in April 2004. There are two children of their marriage: a daughter, Karina, born in May 2008 and now aged 15 years; and a son, Krish, born in September 2012 and now aged 11 years.
As described by the second defendant, his marriage to the first defendant was a "traditional arranged marriage". The parties met in February 2004, married in April 2004 and moved to Australia as a married couple in June 2004.
Their different expectations of the marriage may explain why their relationship deteriorated to the point of estrangement within the family home in September 2015 or thereabouts and ended with an acrimonious separation in May 2021, followed by an entrenched bitterness that continues to this day, and, in July 2022, divorce. The marriage can fairly be said in retrospect to have broken down in or about September 2015 when the parties fell out in planning to sell their matrimonial home, then at Kogarah.
The first defendant was removed from the parties' then matrimonial home (the Hurstville property) by police on 12 May 2021 pursuant to a provisional apprehended domestic violence order issued upon a complaint by her daughter. She has been excluded from the property ever since, shunned by the second defendant and his family. At the time of the hearing of these proceedings the ADVO continued in operation.
The defendants both accepted as a cultural imperative that the plaintiff, as the second defendant's widowed mother, would live with them in their matrimonial home, (whether with or without a contribution to household expenses) rent free. Resigned to that, and respectful of her mother-in-law according to Indian cultural tradition, the first defendant nevertheless viewed herself as having an independent relationship of marriage with the second defendant that was not subordinate to the mother and son relationship of the plaintiff and the second defendant.
The second defendant's devotion to his mother and the first defendant's independence of mind contributed to their alienation and, from the perspective of the first defendant, a sense of exclusion which undermined the love she felt for her husband in the early years of their marriage.
Punam and her husband, Rajiv Dhawn were married in February 1997, following which she moved to Singapore to live with her husband and his parents. She obtained an Australian permanent residency visa in 1999. For a time thereafter she and her husband lived in a three bedroom house owned by him in Alamein Avenue, Carlingford.
That property was, from time to time, a place of residence not only for Punam and her family, but also for the plaintiff and the second defendant, and (after her marriage to the second defendant) the first defendant. At the present time Punam and her husband are based in Singapore.
Punam and Rajiv have three children: Anjali, now aged 22 years; Rohan, now aged 20 years; and Rahul.

[5]

THE NATURE OF THE CONTEST

The plaintiff's claim to a beneficial entitlement to the Hurstville property is based essentially upon evidence (hotly contested) of conversations within the Dogra family and money flows said to represent financial contributions made by the plaintiff, directly or indirectly, to acquisition of the Hurstville property in the names of the defendants as tenants-in-common in equal shares.
Her primary claim is to a one-third beneficial interest in the property, said to arise from conversations before the acquisition of the first matrimonial home of the defendants (at Kogarah) and confirmed at the time of acquisition of their second, replacement matrimonial home at Hurstville. A secondary claim is to a percentage share of the Hurstville property proportionate to her contributions to the purchase price of the Kogarah property and mortgage repayments referable to, first, the Kogarah property and, then, the Hurstville property, tracing an equitable interest held in the Kogarah property into the Hurstville property. Her tertiary claim is to an equitable charge for a sum of $90,000 she says she paid towards purchase of the Kogarah property, traced into the Hurstville property.
The plaintiff's evidence is ostensibly corroborated by evidence given by the second defendant; Punam; Punam's daughter, Anjali; and a friend of the family (particularly a friend of the second defendant), Shayaz Khan.
The second defendant attended to arrangements for settlement of the purchase and sale of the Kogarah property and for the purchase of the Hurstville property. His evidence is of central importance in an assessment of the plaintiff's case.
The first defendant gave evidence in her own defence, without any supporting witness. The absence of any supporting witness is consistent with the close family relationships within the Dogra family; her estrangement from the plaintiff and the second defendant and, possibly, her children; and her marginalisation in financial dealings between the plaintiff and the second defendant.
In essence, she denies the conversations alleged against her; denies being party to any arrangement for the plaintiff to have, or to acquire, an ownership interest in, or a charge over, either of the two matrimonial homes (the first at Kogarah, the second at Hurstville) co-owned by the second defendant and herself.
The plaintiff frames her claim to a proprietary interest in the Kogarah property (and, by extension, the Hurstville property) as founded on equitable principles governing promissory estoppel (Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429), proprietary estoppel (Sidhu v Van Dyke (2014) 251 CLR 505; Delaforce v Simpson-Cook (2010) 78 NSWLR 483), a common intention constructive trust (Galati v Deans [2023] NSWCA 13 at [53]-[54]), a remedial trust (Muschinski v Dodds (1985) 160 CLR 583 at 614), a resulting trust (Ryan v Ryan [2012] NSWSC 636 at [43]-[44]; Calverley v Green (1984) 155 CLR 242) and an equitable lien (Buono v Mazzella [2016] NSWSC 659 at [156]-[157]), all of which ultimately require a finding that it would be unconscionable on the part of the defendants not to recognise in her an entitlement to an ownership interest in, or an equitable charge over, the Hurstville property.
Forensically, the plaintiff's case is directed against the first defendant, not the second defendant. The second defendant supports her case without qualification. With their very close relationship as mother and son, they have a common interest in establishing in the plaintiff a beneficial entitlement to the Hurstville property with the object of diminishing any entitlement the defendants may have in the property upon consideration of a claim made by the first defendant under the Family Law Act 1975 Cth for a property settlement in proceedings presently pending in the Federal Circuit and Family Court of Australia.
These and those proceedings have a forensic connection. The plaintiff commenced these proceedings by a summons filed on 26 May 2021. The first defendant commenced proceedings in the Federal Circuit and Family Court of Australia on 8 July 2021. On 27 April 2023 that Court dismissed an application made by the plaintiff to transfer these proceedings to that Court. Those proceedings await the determination of these proceedings so far as they bear upon entitlements to the Hurstville property.
The case presented by the plaintiff (and supported by the second defendant) depends ultimately upon: 1. acceptance of their evidence, and that of their corroborative witnesses, about conversations, said to have taken place in the presence of the first defendant and with her acquiescence, to the effect that the plaintiff had an ownership interest, first, in the Kogarah property and, now, in the Hurstville property; and 2. acceptance of their evidence about the provision of money by the plaintiff to the second defendant as a contribution to the purchase of the Kogarah property and contributions to servicing mortgage debt over the properties.
There is no contemporaneous record of the several conversations relied upon by the plaintiff and the second defendant, although they and their collaborators have given closely aligned reconstructions of particular conversations, all of which have been emphatically denied by the first defendant.
The plaintiff's "written outline of closing submissions" dated 12 July 2023 (marked for identification as "MFI P21") sets out in chapter and verse each of the several conversations recorded, in direct speech, in affidavits sworn by the plaintiff, the second defendant and their corroborative witnesses, each of which (so far as they ostensibly involve her) the first defendant denies. It is not necessary in this judgment to do more than incorporate them by reference. I accept the first defendant's version of events.
The plaintiff contends, by reference to Browne v Dunn (1894) 6 R 67 (as explained in Ghosh v Medical Council of NSW [2020] NSWCA 122 at [69]-[70]), that the Court is, in effect, bound to accept the evidence of these conversations as fact because, she asserts, they were not the subject of cross examination by the first defendant. I do not accept that contention. Counsel for the first defendant was not obliged to traverse each disputed conversation in cross-examination. The fact that the conversations were contested by the first defendant was plain throughout the hearing. The competing narratives of the plaintiff and the second defendant (on the one hand) and the first defendant on the other hand, are starkly different. The first defendant has contended throughout these proceedings that the case against her lacks veracity. The plaintiff and the second defendant have had a fair opportunity both to present that case and to challenge the first defendant's case. The Court is not bound to accept the contested evidence of any witness or to measure the existence or nature of a contest simply by reference to the course of cross-examination.
The plaintiff and the second defendant contend that, with the knowledge and approval of the first defendant, the plaintiff was an (undisclosed) co-owner of the Kogarah property and, upon its acquisition, became an (undisclosed) co-owner of the Hurstville property; that the common intention of all three parties was that the plaintiff be a co-owner of each property; that the plaintiff remains a co-owner of the Hurstville property; that (albeit indirectly, largely through the second defendant but sometimes through a joint account in the names of the defendants managed by the second defendant) she, from her own resources, made money contributions to the acquisition of the Kogarah property and to payment of mortgage instalments as well as household expenses generally; and that she, rather than the first defendant, managed the matrimonial home of the defendants and nurtured the defendants' children. The first defendant denies this narrative emphatically, in each of its elements.
The evidence adduced by the plaintiff and the second defendant about money flows depends largely upon acceptance of their characterisation of particular transactions in the absence of contemporaneous records describing the character of each transaction and in the context of routine transfers of cash and an inter-mingling of their financial arrangements. An example of this is the $58,000 the plaintiff says she paid to the defendants on 28 November 2005 as a contribution to the purchase of the Kogarah property. It was funded by a transfer of the same amount to her by the second defendant on 9 November 2005. He says that that was money he had been keeping in his account on her behalf.
The first defendant was not a party to routine arrangements between the plaintiff and the second defendant, which were managed by the second defendant. Whatever may have been the arrangements between the plaintiff and the second defendant, the first defendant did not know of them. She believed that money contributed by the second defendant to their acquisition of matrimonial property was his to contribute.
The case for the first defendant depends ultimately upon: 1. the state of the legal title to the Kogarah property and, more particularly, the Hurstville property, which record(ed) each property as in the co-ownership of the defendants alone, with no acknowledgement of any interest said to have been held by the plaintiff; 2. contemporaneous records executed by the defendants (in relation to an application for a first home buyer's grant and applications for stamp duty concessions) inconsistent with the case of the plaintiff that, to the knowledge of the defendants, the plaintiff had an ownership interest in the two properties; and 3. the first defendant's denial of conversations in which she is alleged to have acknowledged, and freely accepted, that the plaintiff had an ownership interest, first, in the Kogarah property and then, upon its sale and an application of the proceeds of its sale in the purchase of the Hurstville property, in the Hurstville property.
No evidence was adduced, by any party, from the solicitor Mukul Dey, a friend of the Dogra family, who acted on the purchase and sale of the Kogarah property and on the purchase of the Hurstville property. His absence from the witness box was unexplained. I infer that any evidence he could have given would not have been of assistance to the plaintiff or the second defendant. In their camp lay the burden of establishing a beneficial entitlement in the plaintiff different from the state of the legal title to the properties. He acted on instructions that the properties were purchased (and, in the case of the Kogarah property, sold) by the defendants alone. His primary point of contact in relation to the transactions involving the two properties was the second defendant.

[7]

The Kogarah Property

The first of the two matrimonial homes owned by the defendants (in Victoria Street, Kogarah) was purchased at auction on 27 June 2006 for $447,500. The contract, exchanged at auction, was settled on 11 August 2006. Upon an application by the defendants (managed by the second defendant) they were granted by the NSW Government, as "first home owners", an exemption from stamp duty payable on the contract and a grant of $7,000. The memorandum of transfer consequent upon the purchase (registered dealing AC538082) was stamped "no duty payable" on 25 July 2006. The Commissioner of State Revenue's letter formally advising the second defendant of the grant was dated 4 August 2006. The title to the property was registered in the names of the defendants as joint tenants.
The memorandum of transfer was signed by the defendants personally as transferees. The registered mortgage granted to Adelaide Bank Limited in aid of the purchase (dealing number AC538083) records that the signatures of the defendants as mortgagors was witnessed by their solicitor Mukul Dey. A stamp duty endorsement on the mortgage (dated 25 July 2006) records that the consideration for the purchase was $447,500 and the initial advance under the mortgage was $344,000.
Correspondence of the solicitor Mukul Dey relating to settlement of the purchase was addressed to the defendants alone, with no reference to the plaintiff. The Adelaide Bank's letter granting conditional approval of a loan confirms (in a manner consistent with later conveyancing documents) that the borrowers were the defendants and that there was no guarantor.
The mortgage was discharged (by Bendigo and Adelaide Bank Limited), as evidenced by registered Discharge of Mortgage AM796768, in 2017 when the defendants sold the property to an unrelated party, Kai-Tian Group Pty Limited.
A caveat (dealing number AK877648) lodged against the title to the property on 28 October 2016 records that on 21 October 2016 that company and the defendants entered into an instrument styled "Deed of Put and Call Option Contract for Sale of Land" and that on 24 October 2016 the company had paid 1% of the purchase price as part of the deposit payable under the Deed. An historical title search records that on 2 March 2022 the property was subsumed in a deposited plan, consistent with its integration in the land development.
The Kogarah property was sold, by contracts exchanged on 21 October 2016 and settled on 9 October 2017, for a sale price of $2.3 million. An historical title search records that the caveat of the purchaser was withdrawn, the discharge of the mortgage of Bendigo and Adelaide Bank Limited was registered, and the memorandum of transfer in favour of the purchaser was also registered, on 11 October 2017.
The defendants realised a substantial capital gain on their ownership of the Kogarah property because it was acquired by a land developer.

[8]

Tensions Within the Family About the Sale and Purchase of Property

Tensions within the marriage of the defendants in 2015 were on display in correspondence preparatory to a property settlement that has yet to eventuate.
The second defendant met a solicitor (Steven Ng of Adams Partners) in their Penrith office on 9 September 2015, which meeting was followed up by a letter dated 10 September 2015 to the second defendant (headed "Your family law matter"). It included the following: "We refer to the above matter and your attendance with the writer at our Penrith office on 9 September 2015. We confirm that you advise the writer that you and your wife, Mamta are not yet separated but you have reached an agreement in relation to the sale of your property at 18 Victoria Street, Kogarah and the division of the proceeds of that sale. We confirm that Mamta has requested that a document be signed by both of you in relation to the division of the proceeds of the sale of that property before she will sign an "Agency Agreement" in relation to the sale of that house. We confirm that you are hopeful to sign an Agency Agreement in relation to the sale of that property due to a developer interested in purchasing the property at an inflated price. We now attach an agreement as requested for both you and Mamta to sign. Please advise whether you require any changes to that agreement. We confirm that once that agreement has been signed by you and Mamta that this should be provided to the conveyancer/solicitor instructed on the sale of the property so that they are aware as to your written instructions as to the division of the proceeds of the sale. We also attach your invoice for your initial appointment with the writer and confirm that you made full payment of that account at your appointment."
In cross examination, the second defendant, correctly, records that this letter was in error in speaking of the existence of an agreement between himself and the first defendant. There was no such agreement.
The second defendant says that he did not reply to the solicitor's letter, a fact confirmed by a letter dated 1 October 2015 in which the solicitor requested "an update in relation to your discussions with your wife Mamta in relation to resolution of any property settlement."
The "agreement" attached to the solicitor's letter (which the first defendant refused to sign) was in the following terms: "AGREEMENT (1) We, Kapil Dogra and Mamta Indersain Chugh of 18 Victoria Street, Kogarah NSW 2217 agree to sell the property situate at 18 Victoria Street, Kogarah, NSW, 2217 and divide the proceeds of that sale as follows: (a) In adjustment of council rates and water rates. (b) Payment of estate commission and expenses of a lawyer or conveyancer incidental to the sale. (c) Payment of the amount necessary to discharge the mortgage encumbering the property at 18 Victoria Street, Kogarah NSW 2217. (d) In payment of the remainder: (i) 50% to Kapil Dogra; (ii) 50% to Mamta Indersain Chugh. (2) We, Kapil Dogra and Mamta Indersain Chugh agree to pay to Aruna Dogra an amount of $100,000 each from the monies we received from the sale of the property situate at 18 Victoria Street Kogarah NSW 2217."
The "Agreement" was never signed by either defendant. Neither defendant paid $100,000 to the plaintiff from the proceeds of sale of the Kogarah property. The plaintiff cannot recall ever having seen the "Agreement".
The terms of the "Agreement" are inconsistent with an understanding on the part of the second defendant (which the first defendant certainly did not have) that the plaintiff had a beneficial entitlement to share in the proceeds of a sale of the Kogarah property.
In an email timed at 8.52 pm on 20 October 2015, addressed by the second defendant to the first defendant (at two separate email addresses she then had) and titled "Important - Regarding the sale of 18 Victoria Street, Kogarah".
That email was in the following terms: "Dear Mamta As you are aware that because of my difficulties in communicating with you and your insistence that you will NOT put in writing your requirements/demands with regards to the way forward for selling 18 Victoria Street, Kogarah, NSW 2217. [sic] I am putting forth to you the complete position to best of my understanding [sic]. (i) Signing the agreement with CBRE [ … ]: You have stated that you agree to sign provided: (a) The sale proceeds are deposited in the trust account of the lawyers nominated by you acting on our behalf in their Trust account. (b) You want that the nett sale proceeds ie total sale price less expenses incurred for completing the sale will be utilised to purchase another residential home in our joint homes [sic, names]. (ii) As you would appreciate that the nett amount that will become available may allow us to buy a property together with some surplus remaining. [sic] I ask that the surplus, if any, be distributed equally between two of us to be utilised at ones [sic] sole discretion. (iii) Similarly, I ask that if there is a short fall between the purchase price of the new residential property and the amount available from the sale proceeds of 18 Victoria Street, Kogarah, it will again be necessary to bring in additional funds. I would prefer to deal with the situation at that time; however, I consider it to be prudent to flag it at this early stage. (iv) How would you think we would handle a situation where we are not able to find a suitable property and the money is sitting idle in a solicitors trust account which is not earning any interest income? Given this circumstance, I would ask that it may be preferable to direct the solicitors to invest in income earning investment immediately after the settlement of the sale. The investment of course will be in our joint names and can be withdrawn for a common purpose. (v) As you would understand that although my preference was that you write the terms of depositing the sale proceeds and the manner of withdrawal. [sic] Considering the urgency to set the ball rolling and not be caught up if the downturn in the property market starts. [sic] I request you to read the contents carefully, obtain legal advice and make arrangements to execute the CBRE (or any other agent) documents as well as make up your mind fully that once CBRE (or any other agent) is authorised you will without any delay also execute the contract for sale in favour of the party brought by the CBRE (or any other agent). Whilst I am unsure whether you would change your mind again or whether we will have further difficulties in trying to reconcile ourselves, for the sake of the children, I beg of you to complete the above process wholeheartedly without reservations as it is good for our children, as well as us, individually. I wish you well. Kapil"
The email makes no reference to the plaintiff or to the possibility that she might have an ownership interest in the Kogarah property, any proceeds of sale of the Kogarah property, or any property acquired with the proceeds of sale of the Kogarah property. The email is inconsistent with an understanding on the part of the second defendant (or the first defendant) that the plaintiff had a beneficial entitlement to share in the proceeds of sale of the Kogarah property.

[9]

The Hurstville Property

The proceeds of sale of the Kogarah property (net of expenses on sale) were applied towards the purchase of the defendants' second matrimonial home (at Rosebank Crescent, Hurstville), purchased for $2.35 million by an exchange of contracts on 30 August 2017 settled on 20 November 2017. The memorandum of transfer (dealing number AM924104) registered consequent upon the purchase was registered on 28 November 2017. The memorandum of transfer was supported by a registered mortgage (AM924105), also registered on 28 November 2017, in favour of National Australia Bank Limited.
The Hurstville property was, and remains, registered in the names of the defendants as tenants-in-common in equal shares. The memorandum of transfer (dealing number AM 924104) bears a handwritten amendment to the typed form which deleted a typed entry "joint tenants" and inserted the words "Tenants in Common in equal shares" to which controversy attaches.
The first defendant denies that she authorised the amendment. The second defendant's contention that she did so relies upon a pair of emails dated 20 November 2017 (timed at 9.15 am and 9.17 am) purportedly addressed by the first defendant to Mukul Dey and copied to the second defendant (followed up by a confirmatory email timed at 9.23 am on 20 November 2017 addressed by the second defendant to the solicitor and ostensibly copied to the first defendant) formally "[confirming] that purchase [sic] has to be tenants-in-common in equal shares and not joint tenants."
The first defendant says that, from her perspective, her marriage was not so problematic as to justify a change from a joint tenancy arrangement to that of a tenancy-in-common and that the second defendant had access to her email, inviting an inference (which I draw) that the second defendant sent the three emails to the parties' solicitor on his own initiative on the day of settlement of the Hurstville purchase.
In these proceedings nothing ultimately turns on whether the Hurstville property is owned by the defendants as joint tenants or as tenants-in-common. Its significance in the present proceedings is that the change from one form of co-ownership to another bears upon an understanding of the course of events and the way the parties' affairs were managed, at times unilaterally, by the second defendant.
It is not necessary in these proceedings to consider whether a representation, promise, agreement or understanding involving only one co-owner of property held in co-ownership (such as the second defendant) and a third party (such as the plaintiff) can affect the interests of another co-owner not privy to the representation, promise, agreement or understanding (such as the first defendant) or whether an answer to such a question varies depending on whether co-ownership takes the form of a joint tenancy (in which co-owners hold an undivided joint interest in property) or a tenancy-in-common (in which co-owners hold divided shares). On the facts of this case I am not satisfied that there was any material representation, promise, agreement or understanding that grounded a reasonable expectation or right in the plaintiff to a proprietary interest in either the Kogarah property or the Hurstville property. The plaintiff acquiesced in the defendants' acquisition of title unencumbered by any proprietary interest she might otherwise have had.

[10]

The Plaintiff's Caveat over the Hurstville Property

On 20 December 2019 the plaintiff, possibly (as the first defendant believes) at the instigation of the second defendant but through the office of her present solicitors, lodged a caveat (dealing number AP 793162) against the title of the Hurstville property. It remains on the title depending on the outcome of these proceedings.
The "estate or interest claimed" in the caveat is a "charge" said to arise from an "oral agreement [between the plaintiff, the second defendant and the first defendant] for monetary contribution of $90,000". The caveat did not assert an interest attributable to transfers from a bank account of the plaintiff to a bank account of the second defendant which those parties, in these proceedings, contend gave rise to an equitable interest in favour of the plaintiff, first, in the Kogarah property and, then, in the Hurstville property. The plaintiff was not pressed for an explanation of the omission in cross examination. Neither was it explained.
The first defendant did not become aware of the caveat until shortly before her removal from the Hurstville property on 12 May 2021. A letter dated 11 May 2021 addressed by her solicitor to the plaintiff disclaimed knowledge of the caveat until "recently".
Whether the timing of that letter had a specific connection with the first defendant's removal from the property the very next day was not explored in the evidence, but family tensions experienced a crisis point in May 2021, quite possibly fuelled by the first defendant's discovery that she had been living in the same household as the plaintiff and the second defendant for approximately 17 months without being made aware of the existence of the caveat.
By her solicitor's letter she denied the plaintiff's claim of an interest in the Hurstville property and demanded that the caveat be withdrawn. After her service of a lapsing notice on the plaintiff the operation of the caveat was extended by an order of the Court "until further order", made on 31 May 2021, shortly after the commencement of these proceedings on 26 May 2021. The plaintiff gave to the Court the usual undertaking as to damages in aid of the order for extension of the caveat.
The sum of $90,000 is said by the plaintiff and the second defendant to be an amount of money provided by the plaintiff to the second defendant as a contribution to the purchase price of the Kogarah property. Implicit in the caveat is the plaintiff's contention that her $90,000 contribution to the purchase of the Kogarah property can be traced into the defendants' purchase of the Hurstville property.

[11]

Ancillary Topics

In paragraph 4(e) of her amended statement of claim filed on 22 November 2021 the plaintiff alleges that in late 2005, or early 2006, she and the defendants had a conversation during which she said to them that she "would contribute $90,000 to the purchase price" of what became the Kogarah property. In his amended defence filed on 8 December 2021 the second defendant admitted that allegation and said that the "$90,000 which was borrowed from the plaintiff was directly applied to the payment of the purchase price" of the Kogarah property.
In paragraph 4(f) of her statement of claim the plaintiff says that in the same conversation she said to the defendants that "she will assist them with the payment of the mortgage" on the property. In his amended defence the second defendant admits that allegation.
Although the language here used is tied to an allegation of an expectation of a proprietary interest in the defendants' matrimonial home it is consistent with characterisation of the parties' financial dealings as transactions in the nature of an intra-family arrangement not intended to create legal relations or to give rise to an expectation of legally enforceable reciprocation, a gift to the second defendant, or a contribution to household living expenses. Something of the same flavour is seen in paragraphs 24-27 of the plaintiff's amended statement of claim where the plaintiff lays claim to a proprietary interest in the Kogarah property based upon payments totalling $107,700 said to have been made "for the use" of the defendants "for maintenance and expenditure on the Kogarah property and for their household expenses".
The plaintiff, with the support of the second defendant, invites the Court to accept that, from her own resources, she transferred to a bank account of the second defendant a total of $83,000 (by a transfer of $58,000 effected on 28 November 2005, a transfer of $10,000 on 6 March 2006 and a transfer of $15,000 on 29 June 2006) as a contribution to the purchase price of the Kogarah property, and that she gave to the second defendant cash making up a total amount of "about $90,000" "which was subsequently used to purchase" the Kogarah property.
The ultimate source of any money that passed between the plaintiff and the second defendant, and the purpose for which money passed between them on particular occasions, are not readily determined given the nature and extent of the intermingling of their affairs.
Much of the evidence adduced at the hearing of these proceedings focused upon the workings of the second defendant's business activities and the involvement of the plaintiff and the first defendant in them; the legitimacy or otherwise of the plaintiff's claim to have been entitled to $17,673 said to have been the proceeds of sale of a family home in India; and criticism of the conduct of the parties directed largely to questions of credit. I abstain from canvassing that evidence in detail.

[13]

The Purchase of the Kogarah Property

The Kogarah property was bought at auction on 27 June 2006 with the second defendant the successful bidder. The second defendant signed the contract and attended to payment of the deposit payable upon execution of the contract. Whether the plaintiff and the first defendant also signed the contract is an open question in the unexplained absence in the evidence of a copy of the contract.
A copy of the contract, as signed at the auction, is not in evidence; but a letter addressed by Mukul Dey to the defendants, and not to the plaintiff, describes its features. The letter is dated 29 June 2006. The second defendant assumes that it was dated incorrectly because a copy of it was emailed to him by the solicitor on 14 July 2006. In the absence of evidence from the solicitor, I am inclined to view that the date of the letter reflects the date of its preparation, not necessarily its date of dispatch. On the strength of the letter and the memorandum of transfer subsequently registered to give effect to the purchase, the purchasers named in the contract as in due course carried into effect were the second defendant and (by her maiden name) the first defendant. The plaintiff was not named as a purchaser.
There is controversy about this in the absence of evidence of the original contract and such, if any, amended form of contract as may have come into existence to "correct" the names of the purchasers. Ultimately nothing much turns on the controversy because the second defendant's contemporaneous email correspondence with the solicitor records that the plaintiff had decided against being named as a purchaser of the Kogarah property.
In the days between the auction and the date of the solicitor's letter there was prevarication on the part of the second defendant, at least, about the identity of the purchasers, accompanied by the fact that the first defendant's maiden name on the contract as executed was misspelt.
By a letter dated 28 June 2006 (post marked 29 June 2006) addressed to the second defendant, the first defendant and the plaintiff (in that order) the real estate agency which conducted the auction congratulated all three parties on their purchase, supporting an inference that the second defendant may have intended at the time of the auction that his mother be a named purchaser of the Kogarah property. The first defendant does not recall seeing the letter.
On 28 June 2006 the second defendant sent an email to the solicitor (not copied to the first defendant) in which he instructed the solicitor that "the correct names to be mentioned on the property papers" were those of himself, the first defendant and the plaintiff.
The first defendant's evidence (which I accept) is that a day or two after the auction she had a conversation with the second defendant in the following terms: The second defendant said: "We should put my mother's name on title of the property just to give due respect to her." The first defendant said: "I don't see why we need to put her name on title just to show respect, she is not working and cannot contribute. Also, the loan we have is not in her name and she is not in a position to repay any loan." The second defendant said: "Okay, we can just have our names on the title of the property."
The first defendant says (and I accept) that this was the first and only time she ever had a conversation with the second defendant regarding the plaintiff being on the title of the Kogarah property.
I infer that the conversation preceded preparation of the solicitor's letter which is predicated upon the defendants alone being named as purchasers of the Kogarah property.
Nevertheless, the second defendant appears to have held a mental reservation about the identity of the purchasers. In an exchange of emails with the parties' solicitor on 12-13 July 2006 (not copied to the first defendant) the second defendant wrote the following in an email headed "Request to exclude my mother name from Property contract": "With reference to our recent conversation, I would like to formally inform you that we would be buying the property on 18 Victoria Street, Kogarah, NSW on two names only. The names to appear on the contract will [sic] my wife, and me, which are as follows: 1. Kapil Dogra 2. Mamta Dogra alias Mamta Indersain Chugh My mother, Aruna Kumari Dogra has decided not to include herself in the application. She will be living with and taken care by my sister [sic]."
The evidence does not disclose what was meant by the expression "the application" but an available inference is that it may have been an application for a loan (because an email of the second defendant dated 13 July 2006 includes a statement by him to the solicitor that he was looking to "a quick finalisation of home loan with Adelaide Bank"), or it may have been an application for a "first home buyers exemption" from the payment of stamp duty, given that the registered Memorandum of Transfer AC538082 records an endorsement of the Commissioner for Stamp Duties dated 25 July 2006 recording that it was a "transfer first home" and "no duty payable".
The solicitor's letter dated 29 June 2006 specifically noted that the property was to be purchased in the names of the defendants and recorded the following unexceptional advice about common experience of co-ownership of land: "Two Owners We note from the contract that the property will be purchased in two names - KAPIL DOGRA AND MAMTA INDERSAIN CHUGH Buying Property in Two Names You may choose between buying the property, either as joint tenants or as tenants in common in equal shares. There is an important difference. With joint tenancy, the joint owners together own the whole of the property and on the death of a joint owner, the deceased's share automatically goes to the survivor. For this reason, most couples prefer to buy as joint tenants. With tenancy in common, each co-owner has a separate share in the property that can be sold, mortgaged or left to anyone in a will; it is suitable for business partners who would want their shares to pass to their own families. Please advise us CONSIDERING the above to whether you would like to buy as tenants-in-common in equal shares, or as joint - tenants. We recommend that you instruct us to buy the property a [sic] joint - tenants. Land Title The property is Torrens title - the names of the legal owners are registered on a certificate of title that proves ownership."
As Memorandum of Transfer AC538082 records that the defendants took title to the Kogarah property as joint tenants on settlement of their purchase on 11 August 2006, an available inference is that they made a deliberate choice to assume co-ownership of the property as joint tenants rather than as tenants-in-common.

[16]

Financial Records Submitted to Government

Financial records submitted by the parties to government are consistent with a finding that the Kogarah property was co-owned by the defendants alone and that the plaintiff held no ownership interest in the property. They are inconsistent with a finding that the plaintiff had an ownership interest in the property.
Through the solicitor Mukul Dey the defendants applied, under the "First Home Plus" scheme, to the Office of State Revenue for an exemption from stamp duty on the contract for purchase of the Kogarah property. The second defendant declared that he was one of two purchasers under a contract dated 27 June 2006 and the first defendant, in the same document, confirmed that she was the second purchaser. No person was disclosed in the document as a "purchaser who is acquiring an interest in the property solely for the purpose of assisting the other purchasers to obtain finance".
The defendants also applied to the Office of State Revenue for a "First Home Owner Grant" in respect of their purchase of the Kogarah property. In support of that application they identified themselves as the only persons with "a relevant interest" in the property. The application form defined the concept of "relevant interest" as referring to "the means by which a person holds their interest in land on which the home is built. This commonly is an estate in fee simple. Other forms of interest are defined in the "First Home Owner Grant Act 2000 Cth".
The plaintiff was not disclosed by the defendants as a person with a "relevant interest" in the property.
Upon the purchase of the Hurstville property the second defendant made a statutory declaration on 16 November 2017, in the presence of the solicitor Mukul Dey (who witnessed his signature), in which he answered the question "Is the purchaser/transferee acting as trustee?" … "No". In cross examination he explained, plausibly, that he answered that question in the negative because an affirmative answer would have required description of "the type of trust the trustee is acting for" as one of a "unit trust", a "discretionary trust", a "fixed trust", a "super fund" or a "hybrid trust", none of which terms, as a layman, he thought applied to the trust he now contends existed for the benefit of the plaintiff. There is no evidence that this question caused him to seek advice from Mukul Dey, or anybody else, about the existence, or nature, of a trust he now submits the Court should find in favour of the plaintiff based upon an alleged agreement or common intention of the parties.
An impediment to acceptance of the evidence of the plaintiff and the second defendant that the plaintiff regularly transferred substantial funds to the second defendant from her own resources is that she came to Australia on the basis that she was financially dependent upon the second defendant; the Dogra family is said to have been a wealthy family in India, with her deceased (intestate) husband having owned various businesses and properties and the plaintiff herself having had a business and properties in her own name, at least some of which properties are said to have continued to generate an income for her; she was not working in Australia otherwise than as an administrator in the office of the second defendant's business from which she derived an income; and in a tax return lodged with the Australian Tax Office for the year ended 30 June 2010 she answered in the negative the question, "Did you [during the tax year] own or have an interest in assets located outside Australia with a total value of Australian $50,000 plus?" That answer sits uncomfortably with evidence of overseas wealth as a source for the provision of substantial funds to the defendants.

[17]

Money Transfers and the Cash Economy

Difficulties in accepting evidence of the plaintiff and the second defendant (supported by evidence of Punam) are compounded by their embrace of the cash economy. Frequent trips between India and Australia were used by family members as an opportunity to bring into Australia cash in the order of $10,000 a time, just short of the amount governed by regulatory controls, and the plaintiff is said to have stored cash at home. The second defendant, for his part, appears to have intermingled his financial affairs with those of his mother in the conduct of his business activities.
The freedom he exercised in managing the financial affairs of his family is illustrated by the fact that, for his own purposes and without consultation with the first defendant, he drew down substantial amounts of loan funds accessible through a bank account in the joint names of the defendants at times when their marriage was under stress.
As a general proposition, I have no confidence that funds said to have been transferred by the plaintiff to the defendants from her own resources were in fact hers.
As counsel for the first defendant expended much effort on an attempt to show that a sum of $17,673 transferred by the plaintiff to the second defendant in February 2005 (as the proceeds of sale of a family home in India) was not a transfer of money to which the plaintiff was entitled, I record my acceptance of the evidence of the plaintiff and the second defendant that that money was indeed an asset of the plaintiff consequent upon the death of her husband leaving an intestate estate. However, the transfer of the $17,673 does not bear directly upon the question whether the plaintiff provided funds for the purchase of the Kogarah property or for the payment of mortgage instalments.
I accept that bank records evidence a transfer of $83,000 (by instalments of $58,000 on 28 November 2005, $10,000 on 6 March 2006 and $15,000 on 29 June 2020) which may have been applied by the second defendant in payment of the purchase price of the Kogarah property. I also accept that (as pleaded in paragraph14B of the plaintiff's amended statement of claim filed on 22 November 2021) the plaintiff transferred by 16 unequal instalments between 22 December 2006 and 19 April 2010 sums totalling $128,500 to a bank account in the name of the defendants or otherwise provided those sums to the second defendant. I accept further that between 16 September 2016 and 4 February 2021 (by 30 unequal instalments as alleged in paragraph 24 of the amended statement of claim) the plaintiff transferred funds totalling $107,700 to a bank account of the second defendant or a joint account of the defendants. I also accept that transfers of funds effected by the plaintiff may have been proximate to obligations of the defendants to make mortgage repayments.
However, I am not satisfied that those funds belonged to the plaintiff or that they were transferred for a purpose associated with an acquisition by the plaintiff of an interest in the matrimonial home(s) of the defendants.
An assessment of the funds available to the plaintiff and the second defendant from time to time depends ultimately upon whether their evidence is believed. Contemporaneous records establish that funds were transferred between accounts but not the purpose for which funds were transferred or ownership of the funds in circumstances in which the affairs of the plaintiff and the second defendant were intermingled, the second defendant actively managed the family's financial affairs and the Dogra family lived in a cash economy.
Nor am I satisfied that it was the intention of any party that such funds as the plaintiff may have contributed to the defendants' household were contribution directed towards the plaintiff acquiring a property interest in the defendants' matrimonial home(s). The plaintiff lived with the defendants in accordance with a cultural tradition that a widowed mother be cared for by a child. It was on that basis that the first defendant countenanced residence of her mother-in-law in her family home.
I accept that the plaintiff, as a member of the same household as the defendants, was involved in the decision-making processes leading to the purchase of the Kogarah property and the purchase of the Hurstville property and that, early in the process leading to the purchase of the Kogarah property, she contemplated the possibility of purchasing a home unit as a personal residence or investment of her own. However, she did not leave her home in India at an advanced age to strike out anew in a foreign land. Her principal focus was on living with one or the other of her two children as a member of a family household.

[18]

Conclusion

The plaintiff bears the onus of proof in advancing her claim to a beneficial interest in the Hurstville property. There are substantial impediments in her way.
The defendants are registered proprietors of the property. The plaintiff bears the onus of establishing a personal equity against them or, at least, the first defendant given the second defendant's support for her cause. Her capacity to establish a personal equity depends on the Court's acceptance of her evidence and that of her family and the family friend presented by the plaintiff as an independent witness, Shayaz Khan.
Acceptance of that evidence depends upon findings of credit (including an assessment of the reliability of the evidence) given that contemporaneous conveyancing records lend little support to the plaintiff's case and statements made by the plaintiff and the second defendant to public authorities are inconsistent with the case she advances. Both she and the second defendant invite the Court to disregard the possibility that one or the other of their evidence to the Court in these proceedings, or their statements to public authorities, bears the mark of falsity. Their evidence can be accepted as correct in material respects only if their declarations about property ownership can be explained away; not an easy challenge, particularly for the second defendant, whose evidence is critical to the plaintiff's case.
The second defendant's evidence of oral arrangements between the plaintiff, the first defendant and himself for the plaintiff to acquire a proprietary interest in the Kogarah property is inconsistent with contemporaneous evidence demonstrating that he dealt with the property at the times of its acquisition and sale and in his communications with the first defendant, on the basis that the only persons with a proprietary interest in the property were himself and the first defendant and implicitly on the basis that the plaintiff had no right, title or interest in the property even if he felt some moral or social obligation to make provision for her. The contemporaneous evidence casts real doubt directly on the veracity of his evidence and, indirectly, on the reliability of the evidence of the plaintiff and witnesses called to corroborate them.
Each of the plaintiff, the second defendant, Punam and Punam's daughter presented themselves to the Court as an integral part of a proud and cohesive family with a collective animus towards the first defendant as an outsider. Shayaz Khan presented himself as a loyal friend of the Dogra family rather than as a truly independent witness. He is a long-standing friend of the second defendant with a quasi-familial relationship with the plaintiff.
The animus directed towards the first defendant is, in part, a product of the trauma of the breakdown of the marriage between the defendants. One part of that animus has been fuelled by the first defendant's instigation of failed criminal proceedings against the second defendant. Another part arises from the defendants' family law property dispute which was in the plaintiff's contemplation no later than the time she lodged her caveat against the Hurstville property.
Whatever the rights or wrongs associated with the defendants' marriage breakdown, the failed criminal proceedings that have scarred the second defendant and ongoing family disputation, in my assessment the first defendant presented herself to this Court as a witness of truth and an objective historian.
Generally, I prefer her evidence over that of the witnesses called against her. Specifically, I accept her denials of the elaborate reconstruction of long ago conversations advanced by or on behalf of the plaintiff and the second defendant in which the first defendant is alleged to have participated.
In my assessment, the attempt to portray the first defendant as actively involved in cultivating the plaintiff to part with money for her benefit fails to accommodate the first defendant's reluctance to allow her marriage relationship with the second defendant to be subordinated to his relationship with the plaintiff. It also fails to accommodate the primary role played by the second defendant in managing the financial affairs of the family, with a tendency on his part to treat the first defendant as subordinate to the plaintiff in the conduct of family affairs.
I am not satisfied that there was any agreement or understanding between the plaintiff and the defendants for the plaintiff to acquire a beneficial entitlement in either the Kogarah property or the Hurstville property. Nor am I satisfied that a representation was made by the defendants to the plaintiff that she would acquire such an entitlement. I am not satisfied that the plaintiff was encouraged by the defendants to believe that she would acquire such an entitlement.
Whatever sense of family obligation the second defendant may have felt towards the plaintiff from time to time, I am satisfied that the first defendant in particular never acquiesced in any belief or expectation the plaintiff may have held about an acquisition of a proprietary interest in the defendants' matrimonial home(s).
On the contrary, the plaintiff acquiesced in the defendants' acquisition and retention of title to each of their matrimonial homes unencumbered by any claim she might otherwise have had to a proprietary interest in the land. She allowed the first defendant to remain in a deteriorating marriage in ignorance of the fact that she had surreptitiously lodged a caveat over the Hurstville property as an impediment to any property settlement the first defendant might seek from the second defendant.
I am not satisfied that the plaintiff ever held a belief or expectation of a proprietary interest in the defendants' matrimonial home(s). Her caveat, a timely knowledge of which was withheld from the first defendant, was, more likely than not, a strategic step taken in aid of the second defendant in an unfolding matrimonial property dispute.
To the extent that the plaintiff may have provided funds to or for the defendants from her own resources, her provision of those funds was a function not of a pursuit or expectation of a proprietary interest in the defendants' matrimonial home(s) but a function of familial support for the second defendant, with whom she lived, and expected in the ordinary course to live, in accordance with cultural custom.
There has been nothing in the conduct of the first defendant vis-à-vis the plaintiff that renders it unconscionable for her to insist upon maintenance of her legal entitlement to the Hurstville property unencumbered by any interest claimed by the plaintiff.
For these reasons, I propose, in general terms, to make orders to the effect that the plaintiff's statement of claim be dismissed; that the plaintiff's caveat over the Hurstville property be withdrawn; that the first defendant's costs of the proceedings be paid by the plaintiff and the second defendant; and that, as between themselves, the plaintiff and the second defendant bear their own costs.
I am conscious that the second defendant supported the plaintiff's claim to a beneficial interest in the Hurstville property. I have given consideration to the possibility that, based on the second defendant's admissions, the plaintiff should be granted relief affecting only the interest of the second defendant in the Hurstville property. However, I am not satisfied that there is, on the whole of the evidence, an evidentiary foundation for taking such a course.
I am also conscious that an order for dismissal of the plaintiff's statement of claim does not resolve all controversies as between the defendants. Neither of them filed a cross claim in these proceedings bearing upon controversies reserved for adjudication in due course by the Federal Circuit and Family Court of Australia. No application has been made in these proceedings to date for the Hurstville property to be sold under the direction of the Court by reference to section 66G of the Conveyancing Act 1919 NSW or otherwise. Any entitlement the defendants might have to make such an application is not prejudiced by this judgment. Whether in this Court or in the Federal Circuit and Family Court of Australia questions reserved for further consideration include questions about adjustments arising from the second defendant's occupation of the Hurstville property to the exclusion of the first defendant and questions about adjustments arising from the existence of a mortgage over the property.

At a glance

Court

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Judgment (20 paragraphs)

Parties

Cases Cited (12)

Cited By (3)