1. The Applicant and the Respondent are brothers. The Joined Party, Mr Jordan Gievski ("the Father") is their father.
2. On 8 May 1996 the Applicant and the Respondent became registered as tenants in common in equal shares of a dwelling house and land situated at and known as 5 Gryphon Walk, Kings Park in Victoria. The land is that comprised in Certificate of Title Volume 09621 Folio 653 ("the Property").

1. By this application the Applicant seeks orders pursuant to s225(2) and/or s228(2)(a) of the Property Law Act 1958 that the property be sold and that there be an equal division of the proceeds of sale between the Applicant and the Respondent. He also seeks an order that the Respondent pay his costs.
2. The relevant provisions of the Property Law Act are as follows:

"225. Application for order for sale or division of co-owned land or goods

(1) A co-owner of land ... may apply to VCAT for an order or orders under this Division to be made in respect of that land ......

(a) the sale of the land ... and the division of the proceeds among the co-owners;

(1) In any proceeding under this Division, VCAT may make any order it thinks fit to ensure that a just and fair sale or division of land ... occurs.

(a) the sale of the land ... and the division of the proceeds of sale

(1) In any proceeding under this Division, VCAT may order-

(a) that compensation or reimbursement be paid or made by a co-owner to another co-owner or other co-owners;

(b) that one or more co-owners account to the other co-owners in accordance with section 28A;

(c) that an adjustment be made to a co-owner's interest in the land ... to take account of amounts payable by co-owners to each other during the period of the co-ownership.

(2) In determining whether to make an order under subsection (1), VCAT must take into account the following-

(a) any amount that a co-owner has reasonably spent in improving the land ...;

(b) any costs reasonably incurred by a co-owner in the maintenance or insurance of the land ...;

(c) the payment by a co-owner of more than that co-owner's proportionate share of rates (in the case of land), mortgage repayments, purchase money, instalments or other outgoings in respect of that land ... for which all the co-owners are liable;

(d) damage caused by the unreasonable use of the land .... by a co-owner;

(e) in the case of land, whether or not a co-owner who has occupied the land should pay an amount equivalent to rent to a co-owner who did not occupy the land;

(3) VCAT must not make an order requiring a co-owner who has occupied the land to pay an amount equivalent to rent to a co-owner who did not occupy the land unless-

(a) the co-owner who has occupied the land is seeking compensation, reimbursement or an accounting for money expended by the co-owner who has occupied the land in relation to the land; or

(b) the co-owner claiming an amount equivalent to rent has been excluded from occupation of the land; or

(c) the co-owner claiming an amount equivalent to rent has suffered a detriment because it was not practicable for that co-owner to occupy the land with the other co-owner.

(5) This section applies despite any law or rule to the contrary.

(1) A co-owner is liable, in respect of the receipt by him or her of more than his or her just or proportionate share according to his or her interest in the property, to account to any other co-owner of the property."

1. Both the Respondent and the Father resist the application. They also counterclaim for an order that the Applicant transfer his interest in the Property to them on such terms as the Tribunal considers equitable in order to ensure a just and fair sale. I interpret this as meaning an order that the Applicant sell his interest in the Property to them. In the alternative, they seek an order for the sale of the Property and distribution of the proceeds in an equitable manner. In this regard they assert that, from September 1999 until 2004, the Applicant occupied the Property to the exclusion of the Respondent and the Father and that, from 2004 until November 2007, the Applicant rented the Property out to tenants and received the rent without accounting to the Respondent for it. I interpret this to mean that they seek some adjustment for the period of exclusive occupation and an accounting for the rent pursuant to s.28A.
2. A key issue in the dispute is whether the Father has any interest in the Property. The Applicant says that he has no interest but both the Respondent and the Father say that he has a half interest, even though he is not one of the registered proprietors.

1. The matter came before me for hearing on 9 November 2009 with 5 days allocated. Ms Rozner of Counsel appeared for the Applicant and Mr Dizdarevic, Solicitor, appeared for the Respondent and the Joined Party.
2. Evidence was given by the Applicant and his wife and by the Respondent and the Father.

1. The Property was bought for $105,000.00. Of this, $18,000.00 was provided by the Applicant, $12,000.00 was provided by the Respondent and $40,000.00 was provided by the Father. The balance of $35,000.00 was borrowed from the Commonwealth Bank. The costs and expenses to do with the sale were paid by the Applicant and the Respondent, although there was a shortfall of $1,000.00 which was made up by the Father.
2. The Property was registered in the names of the Applicant and the Respondent as tenants in common in equal shares and the Father and the two sons then set about paying off the bank loan, which was achieved by February 1997.
3. There were three sources of funds to pay off the bank. One was rental of $600.00 per month that the Father received from the tenant of a house that he owned. The second was the rent from the Property itself, which was $685.00 per month. The third was made up of equal weekly contributions by the Applicant and the Respondent which they paid to the Father. These contributions started out at $250.00 a week but at times were as much as $450.00 a week. They then gradually dropped and by the time the mortgage was discharged they were down to $100.00 a week.
4. All of this money was collected by the Father who paid the rates and outgoings on the Property and made the mortgage payments. He continued to receive the money from these three sources after the mortgage was discharged.
5. In July 1997 the Applicant ceased to make payments to the Father but the Respondent continued to pay the Father $150.00 a week until at least July 1998.

1. In July 1997 the Applicant borrowed $25,300.00 from the Commonwealth Bank to buy a car. The loan was secured over the Property and was guaranteed by the Respondent. The rent from the Property then stopped going to the Father and went instead to the Applicant in order to assist him to pay off the Commonwealth Bank loan which was achieved by December 1998.
2. In October 1998 the Respondent obtained a loan for $35,000.00 which was also secured over the Property and guaranteed by the Applicant. The rent received for the Property then went to the Respondent in order to assist him to pay off the loan.

1. In 1999 when the Father was on holiday in Macedonia the tenants moved out of the Property and the Applicant decided to move in there and live. This was not with the agreement of the Respondent or the Father. According to the Applicant's evidence he and his father had not been getting on very well and he wanted to be on his own.
2. He set about painting the Property and getting it ready for occupation but before he actually moved in the Father returned from overseas. There is a dispute as to what then occurred.
3. According to the Applicant, in December of that year the Respondent agreed to transfer his interest in the property to the Applicant for $45,000.00. He says that the price was reached taking into account the difference between their initial contributions. This was substantially less than one half of the price paid for the house in 1996 and even more substantially less than the probable value of the house at the time. I note that a valuation of the Property obtained by the solicitors for the parties in June of this year valued it at $265,000. I have some difficulty in accepting the Applicant's evidence in this regard. If there was any such agreement, there was nothing in writing to satisfy s.126(1) of the Instruments Act 1958.
4. According to the Father the agreement was that the Applicant could move into the house provided that he made regular payments into a pool which would permit the purchase of a further house which could then be occupied by the Respondent. The Respondent had made payments to the Father since July 1997 whereas the Applicant had not and so the moneys accumulated by the Father in what he referred to as "the pool" were largely the result of contributions made by the Respondent and also rental from the Property which the father commenced receiving from November 1998.
5. The Applicant began contributing again to the pool from 20 January 2000 and paid $200.00 each week until 28 June 2001, and thereafter, paid 4 payments of $150.00. All of these payments were recorded by the Father in a diary. At the top of the pages where these payments were recorded the Father wrote in the Macedonian language "From Goce to Daki for house" ("Daki" is a reference to the Respondent). According to the Applicant, the purpose of making these payments was to pay his brother for his share of the Property. According to the Father, the payments were contributions to a fund to enable the purchase of another house. It was not intended, according to both the Respondent and the Father, that these payments were to purchase the Respondent's equity in the property.

1. In July 2001, when the weekly payments ceased, the Applicant received $25,000.00 with respect to an insurance claim for his stolen car. This money was received directly by the Father from the insurance company because the Applicant had registered the car in his father's name to save money on the insurance premium. I am satisfied that the $25,000.00 was the Applicant's money.
2. In addition, in May 2003 the Applicant and his wife paid to the Applicant's mother an amount of $25,400.00. In the meantime, he had been living in the Property rent free since moving into it in 1999.
3. After making this last payment to his father, the Applicant claims that he regarded this Property as his. At this time that the Applicant approached his brother about transferring the title into his name. However when he approached his brother in regard to that his brother disputed that the Property was his and nothing further was done.
4. In June 2004 the Applicant and his wife moved out of the Property into a new house that they had built in Craigieburn. They then rented out the Property and received all of the rent themselves. There was no demand made by either the Respondent or the Father for any part of the rent and the Applicant did not account to the Respondent for any of the rental that he received.

The alleged agreement to sell to the Respondent

1. In 2007 the Applicant again asked the Respondent to transfer the title to him so that he could sell the Property. The Respondent asserted that the Property was still partly his. Negotiations then took place as to the sale by the Applicant of his interest in the Property to the Respondent. At this stage, the Applicant was contending that the whole of the Property was his, a proposition that the Respondent denied. During the course of the negotiations a transfer of land was signed to the effect that the Applicant and the Respondent transferred the Property to the Respondent. This was the first time that there was anything in writing in regard to the sale of the interest of either brother but the Transfer was never registered and no purchase price was paid. The consideration expressed in the transfer is natural love and affection which was quite inappropriate. Not only were the parties not on good terms, it is common ground that there was an amount of money to be paid. According to the Applicant a figure of $170,000.00 was agreed but the Respondent and the Father dispute that.
2. It was asserted by the Applicant that the transaction failed because of interference by the Father but whether that is so or not, it is irrelevant. It was open to the Respondent to accept his father's advice. Correspondence ensued between the solicitors for the parties. The solicitors for the Respondent and the Father asserted that, because of the extent of his contributions, the Applicant's interest in the Property was 25.13% which was asserted to be worth only $68,825.00. Unsurprisingly, the anticipated transaction did not proceed to settlement and I am not satisfied that any enforceable agreement was reached.

1. Following further negotiations the Applicant claims that it was agreed that he would receive back $45,000.00 which he claimed to have paid to the Respondent for his share. On 5 September 2008 an amount of $45,000.00 was deposited into the Applicant's wife's bank account by the Father.

1. The Applicant now contends that the Property is owned by the two brothers jointly.
2. The Father and the Respondent contend that it was originally purchased as a joint venture in which the Father was to be a silent partner. Yet the Father said on several occasions that he wanted each of his sons to have a house and the Respondent's evidence was that it was never discussed whether or not his parents would be on title. I am not satisfied that there was any agreement for a joint venture in which the Father would be a silent partner.
3. In the alternative, the Respondent and the Father assert that the Property belongs to them beneficially in proportion to the amounts that they have contributed.
4. The initial contributions were $40,000.00 by the Father, $18,000.00 by the Applicant and $12,000 by the Respondent but it is not as clear as that. Weekly payments were made by both sons to their father even after the bank had been paid off. In addition, all of the amounts that the Father claims to have spent on the Property are not recorded, the evidence about them is vague and so it is impossible for me to quantify them.

1. Mr Dizdarevic submitted that I should find that, although not registered on title, the Father was entitled to a beneficial interest in the Property commensurate with the very substantial contributions that he made. He referred me to the decisions of the High Court Muschinski v. Dodds [1985] HCA 78; (1985) 160 CLR 583 and in Baumgartner v. Baumgartner [1987] HCA 59; (1987) 164 CLR 137.
2. In the former case, a de facto couple purchased land in common with a view to erecting a house on it. Although some improvements were made by the man, the erection of the house did not proceed and the parties separated. The woman had contributed $25,259.45 to the purchase and improvement of the land and the man contributed only one tenth of that sum. The Court declared that the parties held their respective legal interests upon trust to repay to each his or her respective contribution and as to the residue for them both in equal shares. The basis of the decision was that the joint venture had failed and the contributions were made in circumstances in which it was not intended that the other party should enjoy them. In such circumstances the parties ought to be restored to their former positions. In the present case, the object was to purchase a house in the names of the two sons and that object was accomplished. The venture did not fail. Further, it is clear to me from his evidence that the Father intended that his sons should have the benefit of the contributions that he made. How else were they to have the house each that he envisaged?
3. In Baumgartner a de facto couple pooled their finances and purchased a dwelling house which was registered in the sole name of the man. The Court determined that he held his registered interest in trust for himself and the woman as Tenants in Common in equal shares. The basis of the decision was that the house was acquired from the parties' pooled resources and was intended to be the home of the parties and their child. Theirs was a long term relationship in which marriage was contemplated. In those circumstances the Court considered that it would be unconscionable to allow the man, following the breakdown of the relationship, to assert sole ownership of the property. That is not the situation here. There is nothing unconscionable about allowing a son to enjoy a benefit that his father clearly intended him to have.

1. During cross examination the Father said several times that the purpose of the original arrangement was to obtain an investment property for his two sons to prevent them from squandering their money and make them save. He said that he formed a view that both of them were drinking too much and were hopeless at managing money. That is not borne out by the fact that the Applicant had $18,000.00 saved and the Respondent had $12,000.00 saved. Even if, as the father asserted in cross examination, the Applicant's $18,000.00 largely came from an insurance claim, he was at least able to accumulate assets of this value.
2. In any event, it appears to me to have been the Father's intention to acquire an asset for his two sons, not for himself. He impressed me as being an unselfish man and the welfare of his two sons appears to have been foremost in his mind. There is another property that is in the names of both sons, the Father and the mother so if it was the Father's intention to obtain any interest in the Property for himself he could easily have been included in the title but he was not. Indeed, it was not discussed that he would be.
3. Added to this, he said several times during the course of his evidence that the purpose of acquiring the second house was so that the Respondent would have a house and the Applicant would have a house. He did not suggest that it was intended that he would have a share in either house. That seems to have been something which occurred to him much later in response to this proceeding. I am not satisfied that the Father has any interest in the Property. I am satisfied that it was the intention of the parties that it would belong only to the two sons as the title states.

1. As to the alleged sales between the two sons, quite apart from the Instruments Act 1958, it is impossible to spell out, from all these dealings, any firm agreement one way or the other. There were many arguments and many negotiations but no firm agreement really as to anything.
2. There is no commercial logic about most of what the parties have done. Their actions are explicable on the basis that they were all very close, particularly the Respondent and his father. That the Respondent would have allowed the Applicant to live in the Property rent free and thereafter collect the rent for a total of eight years without seeking any share or recompense may be due to a perception that it belonged to the Applicant or it might equally be due to the fact that he and his father were content for the Applicant to do so since he had a substantial liability to discharge and he was not getting on well with the Father. Added to that, the Applicant struck me as having a forceful personality and the Respondent, being apparently more passive, might not have wanted to confront him. I therefore think his actions in this regard are equivocal.
3. The arrangements are so lacking in any precision that I am not able to audit the financial position between the various members of the family even if that were my task. If there was any arrangement whereby the Respondent sold his share of the property to the Applicant for $45,000.00, as to which I am unable to find on the evidence, then it is likely that he has received the money back.

Rental for the period the Applicant occupied the Property

1. It is clear is that the Applicant had exclusive occupation of the Property for 5 years and then received the rent from it for a further three years without accounting for that rent to the Respondent. This occurred without the Respondent's express consent although no doubt with his acquiescence. Can I make any order in favour of the Respondent for rent for this period pursuant to s.233(2)(e) of the Act?
2. Power to make such an order is restricted by subsection (3). The Applicant seeks no compensation, reimbursement or an accounting for money expended by him in relation to the land so to be able to make an order for rent I would have to be satisfied either that the Respondent was excluded from occupation of the Property or that the Respondent has suffered a detriment because it was not practicable for him to occupy the land with the Applicant.
3. There is insufficient evidence to establish either proposition. It is likely that the Respondent continued to live with his parents because he wanted to do so. Indeed he was still living with his parents at the time of the hearing.

Account for rental received - s.28A and s. 233(1)(b)

1. However the Applicant must account to the Respondent for the net rental he received for the three years after he moved out of the Property. There is insufficient evidence for me to determine how much the rental was or what expenses were paid by the Applicant that are properly chargeable against it. I will simply direct that an accounting be given and that the one half share found to be due to the Respondent from the Applicant be deducted from the Applicant's one half share of the net proceeds of the sale of the Property and paid to the Respondent.

1. As to the principal orders sought, the parties are not able to reach any agreement at all in regard to the Property so it is appropriate to order its sale. After payment of the expenses of the sale, the balance of the proceeds of sale shall be divided between the Applicant and the Respondent equally, subject to the next paragraph.
2. I shall order that an account be taken of all rental and other money received by the Applicant with respect to the Property and that one half of the net funds received be deducted from the Applicant's one half share of the proceeds of sale and added to the share o the Respondent.
3. Costs will be reserved but the parties will be aware of the provisions of s.109 of the Victorian Civil and Administrative Tribunal Act 1998.