Guo v Chief Commissioner of State Revenue [2025] NSWCATAD 115

1. Where tax has been assessed, s 86 of the Taxation Administration Act 1996 (NSW) ("Administration Act"), allows rights of objection to a taxpayer dissatisfied with an assessment. This is an internal review process under which the Chief Commissioner of State Revenue, the Respondent in these proceedings, must consider and determine the objection (s 91 of the Administration Act). On the facts at hand, that determination happened on 13 November 2024.
2. A taxpayer who is dissatisfied with the decision made upon the Respondent's determination of an objection, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the decision of the Chief Commissioner of State Revenue. These circumstances have arisen in the present matter as set out above, so bringing the matter within the jurisdiction of the Tribunal.
3. The onus of proving their case lies with the Applicants (s 100(3) of the Administration Act).
4. The Tribunal, dealing with the taxpayer's application, may do one or more of the following under s 101 of the Administration Act:

"(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit."

1. A preliminary matter arising for consideration is whether certain documents produced to the Tribunal pursuant to a Summons could be the subject of a claim by the Applicants for legal professional privilege.
2. On 19 March 2025, the Summons in question was issued requiring the solicitors acting for the Applicants on the acquisition of the land to produce certain documents concerning the land acquisition. Those documents were produced subject to a claim for legal professional privilege made by the Applicants.
3. The Tribunal determined the Applicants claim for legal professional privilege at the hearing of the matter on 11 April 2025. The Tribunal found that certain documents were protected from disclosure on account of legal professional privilege attaching to those documents. These were documents comprising legal advice and correspondence between the Applicant's and their solicitor concerning the land acquisition. The Tribunal found that other documents, were not so protected. These other documents included a signed "Purchaser/Transferee Declaration" dated 4 July 2017.
4. A Purchaser/Transferee Declaration is in a standard form published by the Respondent. It bears the identification number "OD 076I". The signed declaration stated that the "declaration must be completed by each person entering into a transaction that results in the acquisition by the person of an interest in land in New South Wales (NSW)". Such a declaration must include details of the consideration paid and the unencumbered market value of the land. The information in the declaration also included matters going to whether or not surcharge duty was assessable. The signed declaration contained that information. It also declared whether or not the purchaser is acting as trustee. The signed form OD 076I included a statutory declaration declaring, among other things, that the information disclosed is true and correct.
5. The Tribunal made orders on 11 April 2025, requiring, among other things, that a complete copy of the Purchaser/Transferee declaration be given to the Tribunal and the parties. A complete copy was produced on 22 April 2025.
6. When producing the complete copy, the Applicants' Solicitor reiterated the Applicants' claim for legal professional privilege.
7. The purpose and scope of the privilege is to enable legal advice to be sought and given in confidence. The test is whether the communication or other document was made confidentially for the purpose of legal advice. Seeking legal advice must be the dominant purpose (General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84, at [77] to [79] and [85]).
8. I do not see how a claim for legal professional privilege can attach to the signed Purchaser/Transferee declaration. Its purposes were stated on its face as set out at [26] above and included the purpose of providing relevant information. The person being informed was the Respondent. Another purpose was described as one of collecting and reporting information to the Australian Taxation Office ("ATO"). Having regard to its stated purposes, I cannot identify a basis for the claim that the signed Purchaser/Transferee declaration was created for the purpose of obtaining of legal advice. Nor can it be regarded as a confidential communication as between a taxpayer and their solicitors, when its stated purposes include the provision of information to the Respondent and the ATO.
9. Communications resulting in the making of the declaration occurred between Ms Chen and her solicitor. However, I have found that the dominant purpose of the declaration was not to obtain legal advice and was not confidential as between solicitor and client. The communications relating to the declaration and the declaration in question had the purpose of providing the necessary information for the assessment of duty, by informing the Respondent of the matters set out in the signed declaration. It follows that even if the communications surrounding the Purchaser/Transferee declaration occurred as between solicitor and client, the signed declaration is not protected by legal professional privilege.
10. Accordingly, the Purchaser/Transferee declaration signed by Ms Chen cannot be protected from disclosure on the basis of legal professional privilege.

1. Land tax is to be levied and paid on the taxable value of all land situated in New South Wales which is owned by taxpayers, other than land which is exempt from taxation under the Land Tax Management Act 1956 ("LTMA") (s 7). The rates of land tax payable are set out in the LTA.
2. Surcharge land tax is levied pursuant to s 5A of the LTA. It levies surcharge land tax in respect of residential land owned by a "foreign person". What is a "foreign person" is defined in Chapter 2A of the Duties Act 1997 (NSW).
3. There was no dispute that Ms Chen was liable for surcharge land tax as a "foreign person" as defined for the purposes of the LTA. She was the sole legal owner of the land shown on title and had been assessed as such for surcharge land tax.
4. There was no dispute that Mr Guo fell outside the definition of "foreign person". Consequently, while Ms Chen may have been liable for surcharge land tax Mr Guo was not.
5. The fundamental question for determination by the Tribunal is who was the "owner" of the land. The Applicants say that to the extent that Mr Guo was the owner, no liability for surcharge land tax arises.
6. Section 3 of the LTMA relevantly defines "owner" as follows:

"Owner includes -

(a) in relation to land, every person who jointly or severally, whether at law or in equity -

(i) is entitled to the land for any estate of freehold in possession, or

(ii) is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits thereof, whether as beneficial owner, trustee, mortgagee in possession, or otherwise... ",

1. The Respondent accepted that to the extent that Mr Guo was the beneficial owner of the land, he was an "equitable owner" of the property within the meaning of s 3 of the LTMA and therefore an "owner" for the purposes of land tax and surcharge land tax. In other words, to the extent that Ms Chen held the land on trust for Mr Guo, Mr Guo remained an "owner" within the meaning of s 3.

1. The Applicants' claim was that Mr Guo was an "owner" because he held a beneficial interest in the land. That interest arose, in the Applicants' submission, as a result of what they say was his contribution to the purchase price for the land. They claim that a "resulting trust" arose in favour of Mr Guo. The first matter for determination by the Tribunal is whether such a resulting trust has arisen.
2. A "resulting trust" is presumed where someone purchases property and is the legal owner, but someone else provided the purchase money. The presumption that such a trust arises can be rebutted by evidence establishing the contrary. This evidence must prove the contrary on the balance of probabilities. If the evidence fails to do this, the Court is obliged to make a finding of fact to the effect of a presumption of a resulting trust (Jacobs' Law of Trusts in Australia, (8th Ed), at [12-10]).
3. However, the "presumption of advancement" where it applies, will displace what would otherwise survive as a resulting trust (Jacobs' Law of Trusts in Australia, (8th Ed), at [12-10]).
4. The High Court described how a resulting trust arises in Calverley v Green (1984) 54 CLR 242, at 266. The Court said:

"Where two or more persons have contributed the purchase money in unequal shares and the property is purchased in the joint names, there is, in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants-in-common in the proportions in which they contributed the purchase money Difficulty in evaluating the proportions does not in itself justify any application of the maxim 'equality is equity' so as to divide the beneficial ownership equally. Suggestions that this was so, at least where the parties were spouses, were rejected by the House of Lords in Gissing v Gissing. Where the purchase price of property is contributed by two people but the property is conveyed into the name of only one, there will be a rebuttable presumption of a resulting trust on an equitable joint tenancy, unless statute has made contrary provision".

1. There are three questions that need consideration in order to determine whether or not a resulting trust as claimed by the Applicants, arises. They are:

(1) Whether Mr Guo has contributed money towards the purchase price for the land.

(2) If this is proved, the further question is whether there is evidence of an intention that displaces the presumption of a resulting trust.

(3) The Tribunal is also called upon to determine whether the presumption of advancement arises.

1. The establishment of a resulting trust carrying the 80% ownership interest claimed by Mr Guo, requires proof that Mr Guo provided the proportion of the purchase money for the land that accords with that claim.
2. It was agreed that Ms Chen paid the deposit for the land under the contract. The question for determination is whether Mr Guo funded any part of the balance of the purchase price payable on completion and if so, how much he funded.
3. The Applicants gave evidence that a bank agreed to lend moneys to Ms Chen towards funding the balance of the purchase price payable on completion. A letter of credit of 3 July 2017 and signed by Ms Chen on 4 July 2017 allowed for an "Amount of Credit" of $728,000. There was evidence of a drawdown from the loan of an amount of $728,000 on 1 August 2017. That was the date of settlement.
4. The Applicants said that certain other moneys paid on settlement came from Mr Guo. They say that Mr Guo transferred $180,000 to Ms Chen to draw a cheque for the completion of the purchase of the land.
5. There were statements from four accounts in evidence showing certain transfers of funds from Mr Guo to Ms Chen, the funding of the balance purchase price payable on settlement occurring on 1 August 2017 and subsequent repayments of the loan. The first account was a transactional account in the name of Mr Guo. The second account was a transactional account in the name of Ms Chen with the same bank ("Transactional Accounts").
6. The third account was in the name of Ms Chen with the lender ("Lender Account"). Repayments of the loan came from the Lender Account. Ms Chen described the Lender Account as an "offset" account. Ms Chen says that amounts going into the Lender Account had the effect of "directly reducing the interest - bearing mortgage" over the land. The statements for the Lender Account show that no interest was paid on amounts deposited into that account.
7. The fourth account was Ms Chen's loan account showing the amounts owing by her to the lender (including interest) and loan repayments ("Loan Account').
8. Bank statements for the Transactional Accounts of Mr Guo and Ms Chen in evidence showed the following transactions as having occurred on 27 and 28 July 2017.

1. The evidence also showed a deposit of $180,000 from a bank account of an unknown person to Mr Guo's Transactional Account on 27 July 2017, prior to the transactions described above. To the extent that this deposit funded the subsequent amounts totalling $180,000 paid by Mr Guo to Ms Chen described above on 27 July and 28 July 2017, the Respondent questions who was the beneficial owner of these funds.
2. While the source of the $180,000 coming into Mr Guo's Transactional Account on 27 July 2017 may be unknown, the evidence shows that that amount was held in Mr Guo's Transactional Account following the deposit of the amount into the account. There is no evidence to indicate that the rights in respect of money so deposited, did not belong to Mr Guo. Accordingly, the Tribunal accepts that the rights in respect of the amounts deposited into Mr Guo's Transactional Account described at [53] above were his.
3. The evidence summarised at [52] above show that on 27 July 2017, Ms Chen received a separate amount of $180,000. That amount was deposited into her Transactional Account from an unknown source. On the same day she withdrew $180,015 from her Transactional Account and deposited $180,000 into her Lender Account. That deposit into the Lender Account is $15 less than the amount withdrawn from her Transactional Account. I infer that that difference may represent a bank fee.
4. The statement for the Lender Account showed a debit for an amount of $176, 119.47 on 1 August 2017. The line items describing the debit is "BANK/GOVT FEE REFER LOAN APPROVAL LETTER". Ms Chen says that these were funds used towards payment of the balance purchase price on settlement. I accept this evidence.
5. After the date of settlement (1 August 2017), Ms Chen made deposits of $80,000 and $100,000 into her Lender Account. The date of those deposits was 7 August 2017.
6. A summary of the evidence as to relevant transfers and payments of money is as follows:

(1) Mr Guo transferred $180,000 into Ms Chen's Transactional Account before 1 August 2017 in two payments, being $100,000 on 27 July 2017 and $80,000 on 28 July 2017.

(2) On 27 July 2017, Ms Chen received into her Transactional Account a further amount of $180,000 from an unknown source. On the same day, she withdrew $180,015 from her Transactional Account and deposited $180,000 into her Lender Account.

(3) Ms Chen withdrew $176,119. 47 from the Lender Account on 1 August 2017. That amount was used towards funding settlement.

(4) On 1 August 2017, Ms Chen received $728,000 from the lender by way of a drawdown of her loan to fund the balance purchase price payable on settlement.

(5) On 7 August 2017, Ms Chen made deposits of $80,000 and $100,000 into her Lender Account from her Transactional Account.

(6) After settlement and during the period up to 2 December 2024, Mr Guo transferred a total of $477,864 into Ms Chen's Lender Account.

(7) There were other deposits made into the Lender Account by Ms Chen herself during that period.

(8) During that period, loan repayments in the sum of $563,493 were made out of the Lender Account.

(9) During the period, there were other withdrawals from the Lender Account excluding loan repayments.

1. The first amount deposited into the Lender Account was $180,000. Ms Chen deposited this amount into that account on 27 July 2017 leaving a credit balance for that amount. The second transaction recorded for the Lender Account was a debit on 1 August 2017 of an amount of $176,119.47. It follows that the balance of the purchase price paid on settlement can only have been funded from the deposit into the Lender Account of 27 July 2017. That amount it turn was sourced from Ms Chen's Transactional Account.
2. At the time of the initial deposit of $180,000 into the Lender Account with funds taken from Ms Chen's Transactional Account, Mr Guo had contributed $100,000 into her Transactional Account. It follows that the funds provided on 27 July 2017 by Mr Guo to Ms Chen could not have funded the entirety of the initial deposit made into the Lender Account.
3. Ms Chen's Transactional Account shows a debit of $183,868.24 on 30 July 2017 representing a payment to an unknown person, leaving a balance of $100. What follows is that by that date, the amount of $180,000 paid by Mr Guo before 30 July 2017 had been spent in its entirety or nearly so.
4. I am satisfied that, on the balance of probabilities, the deposit of $180,000 made into the Lender Account on 27 July 2017 was funded from the deposit into Ms Chen's Transactional Account for the identical amount on the same day from an unknown source. Both transactions occurred on the same day. I am satisfied that Mr Guo was not, on the evidence, the source of the funds.
5. That conclusion of fact is supported by the evidence that the loan funding the balance purchase price paid on settlement was taken by Ms Chen alone, without Mr Guo. She was the sole party liable for repayment of the loan. There was no evidence tendered to show that in taking out the loan, Ms Chen was acting as trustee for Mr Guo and incurring a liability as such.
6. The statement for Ms Chen's Lender Account shows two further credits being made to her Lender Account on 7 August 2017. These credits are for the amounts of $80,000 and $100,000. These credits correspond to debits shown on the 6 August and the 5 August 2017 for equivalent amounts in the Transactional Account of Ms Chen. Whatever their source, since these payments into Ms Chen's Transactional Account were made after the date of settlement (1 August 2017), they cannot be taken to have been contributions to the purchase price.
7. In these circumstances, the Applicants have not proved on the balance of probabilities that as at the time of settlement, namely 1 August 2017, Mr Guo contributed any amounts towards the purchase price. In the absence of proof of such a contribution, I am unable to find that as at the time of settlement, there was a resulting trust in favour of Mr Guo.
8. Ms Chen claims that Mr Guo had contributed a total of $657,864 towards acquisition of the land. This included $477,864 towards mortgage repayment between 2017 and the end of 2024 (in addition to the contribution of $180,000 she claims was made towards settlement of the purchase). Any later payments, however, do not assist the Applicants in establishing that at the time of the purchase, Mr Guo had contributed towards the purchase price. I consider further the consequences of such later payments below.
9. Even if it can be shown that Mr Guo funded part of the purchase price for the land (which I have found did not occur), this of itself, may not be sufficient to establish that a resulting trust arose. If there is evidence to show that no trust was intended, that evidence may displace any presumption of a resulting trust that may otherwise have operation.
10. There is nothing in the evidence as to what the parties intended as at the date of exchange, namely 15 June 2017. The evidence is clear that the moneys lent to fund the purchase of the land were borrowed solely by Ms Chen, with no evidence that she did so in the capacity of a trustee for her husband.
11. There is, however, evidence included in the Purchaser/Transferee declaration as to what the parties intended. Among the matters it deals with, is a declaration that requires Ms Chen to say whether or not she was acting as trustee. The Purchaser/Transferee declaration states that Ms Chen was not a trustee.
12. That document takes effect as a declaration by Ms Chen. Mr Guo did not sign it. On its face, therefore, it does not determine whether or not Mr Guo intended that an interest in the land purchased by Ms Chen should be held on trust for him. Nevertheless, I accept that the Purchaser/Transferee declaration stands as evidence that no trust was intended.
13. The evidence also included a document described as a "tenants in common agreement". The Applicants rely on this document in support of their submission that at the date of settlement, it evidences a trust in favour of Mr Guo. It bears a date of signing of 1 August 2017 under the signatures of the parties (although there are uncertainties as to the actual date of execution which I consider below). The "tenants in common agreement" contained the following provisions:

"1.1 The parties Pu Chen and Meng Guo bought the Property on 1/8/2017.

1.2 If the parties hold the Property as beneficial joint tenants, they each separately give notice to the other that they now hold it as tenants in common.

1.3 This agreement sets out the trusts on which the parties now hold the legal estate for themselves as tenants in common.

1.4 From 1/8/2017, they will own the Property as tenants in common on the terms of this agreement.

1.5 The parties agreed that they will own the Property in shares as follows:

Meng Guo 80%

Pu Chen 20%".

1. A preliminary question arises as to whether the tenants in common agreement can have legal effect. The document appears to have had its origins in a standard form intended for use by co-owners at law to agree upon the ownership rights as between them. Clause 1.3 says that the parties "hold the legal estate for themselves". It then goes on to describe the parties' respective beneficial interests as "legal tenants in common".
2. However, the parties were not co-owners at law. Legal title was held solely by Ms Chen. In circumstances where the agreement is intended to operate to determine the rights of the parties as co-owners of the legal estate but no such co-ownership rights existed at any relevant time, in my opinion, it is doubtful that the agreement can operate in accordance with its intended terms. In other words, where the premise on which the agreement purports to operate has never existed, I do not think that the "tenants in common agreement" can have effect in accordance with the terms it sets out. In these circumstances, I am unable to see how the parties can rely on that agreement to determine the ownership rights between them, absent amendment or rectification.
3. Even if the tenants in common agreement has failed in its intended effect and operation, it may nevertheless be evidence of the parties' intentions. If that intention was that a trust was to be in place, at the very latest, that intention needs to be evidenced as at the settlement date, namely 1 August 2017.
4. There is, however, uncertainty concerning when the agreement was actually executed. There is a date typed in the first line of the agreement. That date is 2 September 2017. The date under the signature of the parties is different. It is 1 August 2017, being the date of settlement. The Applicants' explanation for this discrepancy in dates was that the date in the first line of the agreement was a typographical error and that the date of execution was 1 August 2017.
5. There were two witnesses to the agreement whose names and signatures also appeared under the signatures of Mr Guo and Ms Chen. One of the witnesses was present at the hearing and gave oral evidence. At times, he indicated uncertainty as to the date on which the agreement was signed. At other times, he indicated that the date of signature was 1 August 2017. He provided a written statement. There was also a written statement from the other witness to the "tenants in common agreement". That witness did not give oral evidence at the hearing. Both written statements said that the execution date was 1 August 2017.
6. The agreement appeared to be in a form resembling a standard form document sold by a seller of template legal documents. The executed "tenants in common agreement" bore the name of that seller in the footer at the bottom of each page containing operative provisions. A copy of that standard form was in evidence, having been purchased by the Respondent on 6 March 2025.
7. The standard form document purchased and produced in evidence by the Respondent included evidence of how much that document cost ($19). The evidence included an item in the bank statement of Mr Guo, showing the payment of a sum of money to the same seller on 15 November 2024. The amount shown in the bank statement was identical to that paid by the Respondent for purchase of the standard form on 6 March 2025. Mr Guo was unable to explain what he purchased on 15 November 2024.
8. The Respondent's submission was that these matters were evidence that the "tenants in common agreement" is likely to have been executed in November 2024 and not on 1 August 2017.
9. There is uncertainty in the evidence as to the date of execution of the "tenants in common agreement". The document itself contains two dates, one where the signatures of the parties are and the other in the first line of the agreement. One of the witnesses to execution was not at the hearing to give evidence. The other was uncertain in his evidence even if he thought that the execution date was 1 August 2017. There was also evidence of a payment by Mr Guo made in November 2024 to the seller of template legal documents whose name appeared on the signed "tenants in common agreement". The amount he paid was equal to what the Respondent paid for the form of "tenants in common agreement" some months later.
10. The onus lies on the Applicants to prove, on the balance of probabilities, that the date of execution of the "tenants in common agreement" was 1 August 2017. The uncertainties in the evidence prevent me from finding on the balance of probabilities that the date of execution of the "tenants in common agreement" was 1 August 2017. It cannot therefore be accepted as evidence of a trust in favour of Mr Guo as at that date.
11. Even if Mr Guo had contributed moneys to go towards the purchase price (which I have found he did not), there is evidence of a contrary intention that would displace the presumption of a resulting trust. That evidence is found in the Purchaser/Transferee declaration, including as it does, a declaration by Ms Chen that she was not a trustee. There are no other contemporaneous records in evidence as to the intention of the parties as of 1 August 2017.
12. I do not accept the "tenants in common agreement" as contemporaneous evidence of any intention for a trust to arise. Whether it has legal effect at all is questionable. Even if it can be accepted as evidence of the intention of the parties, I am unable on the evidence to determine that execution occurred on 1 August 2017 for the reasons set out above.
13. I have found that there is no evidence of any contribution to the purchase moneys by Mr Guo allowing for a resulting trust. In these circumstances, I do not need to consider whether or not the presumption of advancement has application to displace any resulting trust that would otherwise arise. However, I make the following observations as to the applicability or otherwise of the presumption of advancement.
14. The provision of funds by someone to another person may give rise to a presumption of advancement, where the provider of the money has a close relationship with the recipient of the funds and the recipient uses the money for a purchase. That relationship generally needs to fall within certain categories such as parent and child or husband and wife. The High Court in Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353 described circumstances in which such a presumption could arise:

"We are in the presence of the familiar problem that arises whenever a person purchases and pays for property, real or personal, whatever its description may be, the legal title to which is transferred by his direction into the name of another person. If that person is a stranger, the presumption of a resulting trust arises and he holds the property on trust for the purchaser. But if the purchaser is the father of or a person in loco parentis to the legal owner, the presumption arises from the relationship of the parties that the father intended to purchase the property to advance his child and to make the child not only the legal but also the beneficial owner of the property. These presumptions were described as landmarks in the law by Eyre C.B. as far back as 1788 in the leading case of Dyer v. Dyer (1788) 2 Cox 92 [1788] EWHC J8; (30 ER 42) . In Sidmouth v. Sidmouth [1840] EngR 538; (1840) 2 Beav 447 (48 ER 1254) , decided in 1840, Lord Langdale M.R. said: "The law applicable to cases of this nature is subject to so little doubt that it has not been questioned in the argument of this case. Where property is purchased by a parent in the name of his child, the purchase is prima facie to be deemed an advancement; the resulting or implied trust which arises in favour of the person who pays the purchase-money, and takes a conveyance or transfer in the name of a stranger, does not arise in the case of a purchase by a parent in the name of a child; but still the relation of parent and child is only evidence of the intention of the parent to advance the child, and that evidence may be rebutted by other evidence, manifesting an intention that the child shall take as a trustee; and in this case, as in most others of the like kind, the only question is, whether there is such other evidence. That cotemporaneous acts and even cotemporaneous declarations of the parent may amount to such evidence, has often been decided. Subsequent acts and declarations of the parent are not evidence to support the trust, although subsequent acts and declarations of the child may be so; but, generally speaking, we are to look at what was said and done at the time" (1840) 2 Beav, at p 454 (48 ER, at p 1257). (at p364)".

1. Whether the presumption survives in its traditional form in contemporary Australian society fell for consideration in Bosanac v Commissioner of Taxation [2022] HCA 34. The High Court said, at [19] to [22]:

"The maintenance of either presumption, especially that of advancement, has been the subject of commentary and criticism. In Calverley v Green, Gibbs CJ pointed out that they do not always lead to a result which is what would be expected in ordinary human experience and gave as an example the circumstance of a woman making deposits of money for her niece and nephew. His Honour observed, with respect to the presumption of a resulting trust, that it would not usually be thought that the niece and nephew were to hold the monies on trust for her. In Dullow v Dullow, Hope JA (Kirby P and McHugh JA agreeing) expressed the view that it "seems rather ridiculous that troubles in England at the end of the Middle Ages should be the basis, in the late twentieth century, for making findings of fact".

In Calverley v Green, Gibbs CJ considered that the principle on which the presumption of advancement rests was not "convincingly expounded in the earlier authorities". Lord Reid, in Pettitt v Pettitt, was of a similar view. His Lordship said that it was unclear how it first arose: either the judges who first applied it thought that husbands so commonly made gifts to their wives that they simply assumed it, or that wives' economic dependence made it necessary as a matter of public policy to give them this advantage. Lord Reid then observed that "[t]hese considerations have largely lost their force under present conditions, and, unless the law has lost all flexibility so that the courts can no longer adapt it to changing conditions, the strength of the presumption must have been much diminished". This must surely be correct.

It is the concern of the courts to determine what was intended when property was purchased or transferred. It may once have been the case that evidence capable of rebutting the presumptions was not available. That is unlikely to be so today, especially in the context of dealings as between spouses where the relationship has been of sufficient length to permit a court to observe how the spouses have dealt with property as between themselves and managed their affairs. This evidence may take many forms, but it has always been understood that the strength of the presumptions will vary from case to case depending on the evidence.

The presumption of advancement, understandably, is especially weak today. In Pettitt, Lord Hodson considered that when evidence is given it will not often happen that the presumption will have any decisive effect. In the same matter, Lord Upjohn considered that given both presumptions are but a mere circumstance of evidence, they may readily be rebutted by comparatively slight evidence".

1. The High Court, though expressing reservations as to its applicability in contemporary times, declined to abandon the presumption of advancement as a principle of law, although saying that the presumption may not carry much weight.
2. The High Court in Bosanac considered specifically whether a presumption of advancement could arise when a husband provided money to his wife. The High Court said, at [29] to [31]:

"The Commissioner now seeks to further contend that this Court should conclude that the general law does not recognise a presumption of advancement in relation to a benefit provided by a husband to a wife. In effect the Commissioner asks this Court to abolish the presumption of advancement on the basis that it has no acceptable rationale, and is anomalous, anachronistic and discriminatory. It is the Commissioner's position that absent the operation of the presumption of advancement, it would follow that there was no basis upon which the presumption of a resulting trust is or could be refuted in this case.

The Commissioner needs leave to amend the Notice of Contention and to raise a question which has been dealt with by a majority of this Court in Nelson. In Nelson, Deane and Gummow JJ regarded the presumptions as interrelated and entrenched "land‑marks" in the law of property. They said that "[m]any disputes have been resolved and transactions effected on that foundation". Their Honours cited with approval the reasons of Deane J in Calverley v Green to this effect. Deane J there expressed the view that in the absence of knowledge as to what effect the abolition of the presumptions would have on existing entitlements, the better course is to leave any reform of this branch of the law to the legislature, a view with which McHugh J concurred in Nelson.

It is difficult to disagree with these views. But that is not to accept that the presumptions when applied will carry much weight. Much has changed with respect to the various ways in which spouses deal with property. When evidence of this kind is given, inferences to the contrary of the presumptions as to intention may readily be drawn".

1. The Court of Appeal in Koprivnjak v Koprivnjak [2023] NSWCA 2 adopted the approach taken by the High Court in Bosanac, but emphasised at [93], the importance of "starting with the objective facts and enquiring into the parties' words or conduct at the time of the transaction (or immediately thereafter as to constitute part of the transaction) to ascertain the parties' objective intention in relation to the beneficial ownership of the property".
2. Contracts were exchanged on 15 June 2017 and settlement occurred on 1 August 2017. The question of what the parties objectively intended must therefore be determined having regard to the evidence as to what transpired on and between these two dates.
3. I have found that there is an absence of evidence of any intention on the part of the Applicants for a trust in favour of Mr Guo before or as at 1 August 2017. Ms Chen's declaration in the Purchaser/Transferee declaration specifically disavows any such trust. The absence of a trust creates circumstances where the presumption of advancement can operate, if Mr Guo gave money to Ms Chen to go towards funding the purchase of the land. The presumption of advancement as understood today, though "weak". remains part of the principles of equity in Australia.
4. However, I have found that Mr Guo did not contribute to the purchase price. The consequence is that in the absence of such a contribution by Mr Guo, the presumption of advancement has no work to do on the facts of the present case to undo what would otherwise have been a resulting trust.

1. The remaining question for determination is whether or not a constructive trust has arisen in favour of Mr Guo by reason of funds he says he has contributed towards repayment of the loan and expenses relating to the land to which he has contributed. Unlike a resulting trust, a constructive trust does not depend on the presumed intention of the parties. It arises by operation of law if in equity, it would be fraud for a party to deny a trust in favour of another.
2. The Supreme Court of NSW in Shepherd v Doolan & OrsShepherd v Doolan & Anor; Est. Doolan [2005] NSWSC 4 described how a constructive trust could arise. White J said:

"31 One class of case where equity will intervene to prevent the unconscientious denial by the legal owner of another party's rights, is where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention. (e.g Grant v Edwards [1986] Ch 638; Green v Green (1989) 17 NSWLR 343; Maharaj v Chand [1986] AC 898 at 907).

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34 Where a constructive trust is imposed, based upon the parties' common intention as to the ownership of property upon which the claimant has acted to his or her detriment, the inquiry is as to the actual intention of the parties. The law does not impute a presumed intention to the parties based upon what the Court considers fair and reasonable persons in the position of the parties would have intended had they turned their minds to the issue. (Pettitt v Pettitt [1969] UKHL 5; [1970] AC 777 at 804, 810, 816-817; Gissing v Gissing [1970] UKHL 3; [1971] AC 886 at 900, 902, 905-909; Allen v Snyder [1977] 2 NSWLR 685 at 690, 698, 701).

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36 The intention to be established need not be that the parties have a specific share of the property. It is sufficient that they intend that the claimant should have a beneficial interest or "some form of proprietary interest". (_Gre_en v Green at 355, 356; Grant v Edwards at 654; Parianos v Melluish at [31], [39]).

37 The intention may be established in various ways. There may be an agreement between the parties as to how the property should be held. There may be express statements as to their intention. Their intention may be inferred from their conduct. The question of what acts demonstrate an agreement or common intention referable to the beneficial enjoyment of the property is one of evidence, not law. (Allen v Snyder at 691; Green v Green at 355). A common intention that a party have a beneficial interest in a property owned by another will not be inferred merely from their joint occupation of property, nor the carrying out of household duties, nor the bringing up of children on the property, nor the doing of repairs, renovations, maintenance, decoration or improvement, nor the provision of furniture. (Pettitt v Pettitt [1969] UKHL 5; [1970] AC 777 at 805-6, 811, 818, 826; Gissing v Gissing [1970] UKHL 3; [1971] AC 886 at 900, 910; Burns v Burns [1984] Ch 317 at 326, 328, 342).

38 The intention may be inferred from financial contributions, direct or indirect, to the acquisition of property, including the paying off of mortgages, or the payment of expenses which free up funds for that purpose. (Burns v Burns at 328-329; Gissing v Gissing at 900, 902-3, 906-907; Grant v Edwards at 647, 648-9, 653-4, 655; Green v Green at 355). This is a wider enquiry than whether a contribution was made to the purchase money such as to give rise to a presumption of a resulting trust. Whilst both enquiries address the inferences to be drawn as to the parties' actual intentions, a contribution to the purchase price creates a presumption of beneficial ownership in the proportion which the amount contributed bears to the price. For a "common intention" constructive trust, a contribution, direct or indirect, to the costs of acquisition of the property is a matter from which an intention that the claimant have a beneficial interest in the property might be inferred. There is a difference between a fact from which an inference can be drawn, and a fact from which a rebuttable presumption arises. The significance of the difference will depend upon the strength of the presumption. In the case of the "common intention" constructive trust, there is no presumption that the beneficial interest is in proportion with the contribution to the purchase price.

39 Other evidence from which conclusions may be drawn about the intentions of the parties include declarations of the parties before or at the time of the transaction or so close in time after the transaction as to constitute a part of it. Subsequent declarations of intention are only admissible against interest. (Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 262 and 269; Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353 at 365; Bryson v Bryant (1992) 29 NSWLR 188 at 215).

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"... once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house. ... The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so..."

41 The quantum of the claimant's beneficial interest will be that which the parties agreed upon or intended, if that can be established. In Green v Green and in Parianos v Melluish it was held that although the parties did not turn their minds to the particular form of title which they intended the claimant to have, the conclusion which best gave effect to the intentions of the parties was that they were beneficially entitled to the property as joint tenants, so that upon the death of the respondent, the claimant became the absolute beneficial owner by survivorship.

42 If the evidence does not permit of a finding as to the precise size, nature and extent of the beneficial interest the parties intended the claimant to have, one starts with the maxim that equality is equity. (Green v Green at 355). But that standard can and should be departed from where the parties make disproportionate contributions to the acquisition of the property. In Baumgartner v Baumgartner, Mason CJ, Wilson and Deane JJ said (at 149-150):

" Equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants-in-common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind. " (emphasis added)

1. Financial contributions, direct or indirect, to the acquisition of property, including the paying off of mortgages, or the payment of expenses may show a common intention supporting a constructive trust (see [94] above in Shepherd, at [38]).
2. The amounts paid by Mr Guo into Ms Chen's Lender Account, however, are not repayments of the loan. They may have the effect of reducing the interest payable on the loan but this does not make them repayments of the loan. They do not reduce the capital owing on the loan and do not appear on the statement for the Loan Account as repayments. These are amounts paid by Mr Guo to Ms Chen. However, matters do not end here. Even if not repayments of the loan, the amounts paid by Mr Guo contributed to the fund out of which repayments of the loan were made, namely the Lender Account. I consider below the consequences.
3. The first amount paid by Mr Guo into the Lender Account was proximate to the time of settlement. That date was 3 August 2017, two days after settlement. The amounts Mr Guo has contributed are not insignificant and formed part of the fund used to repay the loan. Mr Guo has acted to his detriment in making these contributions. I am satisfied that these matters are evidence of a common intention supporting a constructive trust in Mr Guo's favour.
4. It is accepted in equity that the beneficial interest the subject of a constructive trust may vary over time (see [94] above at paragraph [42] in Shepherd). This could for example be the result if there are fluctuations in the relative proportion of funds contributed over time by different persons.
5. The declaration by Ms Chen that she was not a trustee in the Purchaser/Transferee declaration does not displace the constructive trust. A constructive trust does not depend on the presumed intention of the parties for a trust to arise but on a common intention as to ownership.
6. Mr Guo's contribution to loan repayments has occurred by means of his own payments into the Lender Account out of which the repayments were made. However, Mr Guo is not the sole contributor of money into the Lender Account. Ms Chen herself has made deposits into the fund held in the Lender Account. Quantification of Mr Guo's contribution to loan repayments would require taking into account what Ms Chen herself has paid into the Loan Account and through those payments, the amount she has herself contributed towards the repayment of the loan.
7. There are also debits from the Loan Account other than those representing loan repayments. These debits include payments made to Mr Guo. In addition, there are debits from the Lender Account for payments to Ms Chen. There are other debits recorded in the bank statement for the Loan Account with no evidence as to the destination of the funds debited. Some of these debits were significant such as a withdrawal on 12 July 2018 for $159,176.96. Calculating Mr Guo's actual contribution to loan repayments requires accounting for these debits and in particular the extent to which the funding of the payments out of the Lender Account (other than loan repayments) came from Mr Guo's contributions into the Lender Account.
8. The evidence is insufficient for the Tribunal to determine what the quantum of Mr Guo's actual contribution to the loan repayments might be, having regard to the matters set out at [100] and [101]. To do so, the Tribunal must at least know what part of the funds contributed by Mr Guo went to repayment of the loan as opposed to funding other debits. No methodology or other basis for working out what went to loan repayments as opposed to other payments was put to the Tribunal nor is there evidence that would allow the Tribunal (or the Respondent) to make such a calculation.
9. Even if there is evidence to support the existence of a constructive trust in favour of Mr Guo, the value of his beneficial interest needs to be quantified. A quantification of this kind, based on a quantification of what Mr Guo has actually contributed to loan repayments, taking into account other debits and Ms Chen's own contributions, will be required for any reassessment of the land tax assessment in dispute.
10. The Applicants have not proved on the balance of probabilities that a constructive trust in favour of Mr Guo has been established in a particular quantum. In the absence of any way in which the beneficial interest claimed by Mr Guo can be so quantified on the basis of the evidence, the assessment under review must stand.
11. If, however, the Applicants had provided evidence supporting a quantification of Mr Guo's contribution to loan repayments having regard to the matters set out at [100] and [101] above, the outcome may have been different.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

26 May 2025 - Case title: First name and 2nd Applicant removed