Higashida v Sato

The relationship 4The plaintiff has, since about February 2009, owned and operated a noodle restaurant in Chinatown. He says that the business ran at a loss for the first year, but has since become profitable. In July 2009, he separated from his wife. 5The defendant came to Australia from Japan in September 2009 on a temporary visa. 6The plaintiff met the defendant in about May or June 2010 and they began a relationship shortly thereafter. In August 2010, the defendant moved into the plaintiff's apartment in the city. She remained living with him until the relationship ended in October 2013. During the relationship, the defendant assisted the plaintiff in relation to the restaurant business, and also undertook some study. 7The plaintiff deposed that his relationship with the defendant was "generally speaking a close and happy one", although in its final six months there was increasing conflict about his failure to divorce his wife, and about the plaintiff and the defendant having children together. He deposed that the relationship was less happy from the start of 2013 and that it deteriorated during the course of the year. The defendant deposed that throughout the relationship, the plaintiff told her that he wanted to divorce his wife so that he could marry the defendant. The plaintiff agreed that he said such words, but only in 2011 when the relationship was "at its best". 8The defendant disputed that the relationship was a "happy one". She deposed that from about December 2010, the plaintiff was at times physically violent towards her, and that such violence increased during the last six months of the relationship. The plaintiff denied that he was physically violent towards the defendant throughout their relationship, but conceded that there were some physical tussles when the defendant was affected by alcohol. 9There is no doubt that the relationship ended in October 2013 following an incident that took place in the early hours of 12 October 2013 when the couple were walking home after leaving a karaoke club in the city. It appears that the plaintiff struck the defendant causing her to lose her balance and fall on the kerb. The police were called, and the plaintiff later pleaded guilty to a charge of assault. He also did not contest an application by the defendant for an apprehended violence order.

The Prius motor vehicle 10In about January 2012, the plaintiff purchased a 1996 Honda Accord for about $3,000. The plaintiff deposed that in January 2013, when he took the Accord to a garage to arrange a Green Slip for registration purposes (due for renewal on 16 January 2013), he was told that the vehicle would require repairs which would cost in excess of $3,000. He says that he decided to purchase a replacement car. 11The plaintiff says that he wanted a "hybrid" vehicle. Initially, he wanted a Honda Jazz, but as this was not then available, he chose a Toyota Prius. The plaintiff claims that he did not have any discussion with the defendant about the new car until the day they went together to the Toyota dealer. This occurred on 12 January 2013. The plaintiff deposed that at the dealer, a conversation to the following effect took place: Plaintiff: "Mai, do you mind if I put the car in your name? As you know I haven't finalised my divorce with my ex-wife yet. She is very sick. If she finds out that I have a new car, on top of having a new girlfriend, it's going to make her feel terrible." Defendant: "Sure. That's fine." 12The plaintiff says that the contract for the purchase of the car named the defendant as the purchaser accordingly. The purchase price (including stamp duty, registration and compulsory third party insurance) was $26,990. After allowance for a deposit of $1,000 (which was paid in cash on that day) and $100 for the trade-in of the Accord, a balance of $25,890 remained to be paid. There is no dispute that all of the purchase money was paid in cash from the receipts of the restaurant business. 13The defendant deposed that she was the main user of the Accord, using it for shopping, attending her lessons, and generally driving the plaintiff around. The plaintiff disputed that, although he readily conceded that the defendant used the car for shopping, to go to her lessons, and to drive him to work and to friends' places. 14The defendant denies the conversation asserted by the plaintiff as set out above, and says that at some time before they went to the dealer, the plaintiff had said words to her to the following effect: "I want to buy a car for you". In cross-examination she said that those words were also said when they were at the dealer's premises. 15The defendant says that she was also the main user of the Prius. The plaintiff disputes this, stating that he used the car for business purposes (such as when he needed to carry out negotiations for bulk purchases) as well as for fishing trips. Again, he agreed that the defendant frequently used the car to go to her lessons, to go shopping and to drive the plaintiff around. 16The parties are also in dispute over an incident the plaintiff says occurred in about February 2013. He says that the defendant, who had just returned from a trip to Japan, gave him a present of a large sticker, and a conversation to the following effect took place: Defendant: "I bought you a sticker from your favourite fishing gear brand Gamakatsu which I really like. I think it'll look cool on your new car. I want to put it on the back of the car. What do you think?" Plaintiff: "Thanks Mai, but I hate stickers on cars. Although I know you like it, but it's my car. Please don't put it on the car." Defendant: "Ok. Fine." 17That conversation is denied by the defendant. She deposed that she did not describe the car as "your new car" and the plaintiff did not say "it's my car". She states that the plaintiff merely said "I don't like the sticker". In cross-examination, however, the defendant agreed that she had said to the plaintiff that the sticker "will look cool on your new car". 18It appears to be the case that, at least in 2013, the plaintiff paid the costs of registration and insurance. The defendant took the car in for servicing, as required by the car warranty, although it is not clear whether the defendant paid for any servicing. It does seem clear that both the plaintiff and the defendant made use of the Prius, much as they had formerly done with the Accord. 19Since the breakdown of the relationship, the car has been in the possession of the defendant. She has, consistent with her claim to beneficial ownership, refused the plaintiff's requests for it to be transferred into his name and delivered up to him.

The Silverton boat 20The plaintiff has a keen interest in fishing. He stated in evidence that it had been a longstanding dream of his to buy a boat. In about mid-2013, the plaintiff suffered a mild heart attack and, as a result, was keen to do something about acquiring a boat. It seems that, in anticipation of that occurring, the plaintiff encouraged the defendant to obtain a boat licence, and she did so. 21On 1 July 2013, the plaintiff made an offer to Empire Boat Sales to purchase a 34 foot Silverton boat (called "Outta Here") for $172,000. He paid a $500 holding deposit. The offer to purchase document names the plaintiff as the proposed purchaser. However, the plaintiff conceded in cross-examination that he had already had a discussion with the defendant about buying a boat in her name. 22The plaintiff gave evidence that he had a number of discussions with the defendant about the purchase of a boat for fishing. He says that on more than one occasion she told him that a boat was a waste of money. The defendant accepted in cross-examination that she had said that "buying a boat is such a waste of money". 23The plaintiff deposes that prior to the eventual purchase of the boat, a conversation to the following effect took place: Plaintiff: "Mai, I've decided to buy a boat for fishing. I need to put the boat in your name so that my ex-wife does not get jealous. You know she's "very sick". Is that OK with you?" Defendant: "No, can't you find some other way instead of using my name? Besides, buying a boat is such a waste of money." Plaintiff: "I know buying a boat is a luxury. But fishing is very important to me. It makes me feel very happy. What's the point in making money if I don't use it for my own happiness? I don't even know how long I have to live. I've tried to think of some other way, but you're the closest person to me that I can trust." Defendant: "OK. But still try some other way instead of using my name." 24The defendant denies that conversation. She says that there was a conversation in which the plaintiff said words to the following effect: "If I die, you can sell the boat and live on the proceeds. ... If my ex-wife finds out about this purchase she will claim half of it. If I die I don't want her to have any claim on it. I'm buying it for you." 25On about 15 July 2013, a cash deposit of $19,000 (against a purchase price of $189,000) was paid by the plaintiff to Empire Boat Sales in respect of Outta Here. The receipt stated that the money had been received from the defendant. At that stage, the purchase was "subject to survey". 26On about 22 July 2013, an agreement to purchase the vessel was entered into which named the defendant as the purchaser. She signed the agreement as such. The purchase was completed on 7 August 2013. It is evident from the receipt issued by Empire Boat Sales that the payment was effected by way of two cheques drawn by ABC Staff Hire Pty Ltd (one for $100,000 and one for $70,000). Both the defendant and the defendant were in attendance on that occasion. The receipt stated that the money had been received from the defendant. 27According to the plaintiff, he obtained the cheques from Mr Keith Mar, described by the plaintiff as his good friend and accountant, who agreed to lend him the money on the basis that it would be repaid in three months, together with interest of $5,000. The defendant disputed that there was any such transaction, or that Mr Mar was involved. She deposed that the $170,000 came from cash which was kept in the apartment where they lived. She says that $100,000 was taken from a hiding place in a planter box, and $70,000 was taken from a hiding place in a cabinet behind the bathroom mirror. The defendant states that the key to the boat was handed to her, but the plaintiff says it was handed to him. 28Outta Here is 34 feet long and has been fitted out for fishing. It has fishing rod holders, a chopping board for bait, a tank for live bait, and sonar equipment for finding fish. It appears that the plaintiff took the boat out for fishing on a number of occasions. On at least some of those occasions, the defendant was on board, and she did some of the steering of the boat. Her evidence given in cross-examination suggested, however, that she was rather inexperienced in that regard. She also had some difficulty explaining how to start the boat. 29The plaintiff paid the insurance and registration costs for the vessel and, until the breakdown of the relationship, also paid maintenance costs and berthing charges. The key to the boat was kept in a key box in the apartment. When the plaintiff left the apartment (due to the terms of the apprehended violence order against him) he took the key with him. (He says that he would have also taken the keys to the Prius, but he was unable to find them). However, the plaintiff was not able to get access to the boat at its mooring at the Bobbin Head marina because "it was locked". The defendant had taken steps to have the key barrels on both of the boat's engines changed. She says that she did that because she was worried about the boat being stolen. 30The boat has remained at the Bobbin Head marina. The plaintiff refused to pay further berthing charges, so since October 2013 the berthing charges have been met by the defendant. She also pays some electricity charges in relation to the boat. Again, consistent with her claim to beneficial ownership, the defendant has refused the plaintiff's requests for the boat to be transferred into his name and delivered up to him. 31In December 2013, after it became apparent that the defendant was taking steps to sell the boat, the plaintiff commenced the proceedings and obtained interlocutory relief restraining the defendant from selling or otherwise dealing with the boat and also the Prius.

Presumption of resulting trust 32Mr M W Young SC, who appeared for the plaintiff, submitted that it was clear that a presumption of a resulting trust arose in respect of both the car and the boat because the money used to purchase the chattels was provided entirely by the plaintiff. He pointed to the admissions on the pleadings to that effect. 33There is no dispute that the entirety of the purchase money for the Prius was paid in cash from the receipts of the plaintiff's business. In relation to the boat, it seems to be uncontroversial that the deposit of $19,000 was paid in cash from the receipts of the plaintiff's business. As for the $170,000 balance of the purchase price, I accept the evidence of the plaintiff that the amount was paid using funds he obtained as part of a loan transaction involving Mr Mar. The payment was made by way of two cheques drawn by ABC Staff Hire Pty Ltd. 34Mr Oliveri, solicitor, who appeared for the defendant, submitted that whilst it may be true that the plaintiff provided the entirety of the money for the purchases (as admitted in the Defence), it had not been established that the money was the plaintiff's money. He submitted that, insofar as the money came from the plaintiff's business, account had to be taken of the fact that the defendant worked in the business without receiving any remuneration. He also submitted that it could not be said that any of the money paid was actually the plaintiff's money until after an adjustment of property rights had taken place as between the plaintiff and the defendant in accordance with the de facto relationship provisions of the Family Law Act 1975 (Cth). 35I do not accept those submissions. Firstly, I do not think it is open to the defendant to raise those matters given the admissions made in the Defence and the absence of any affirmative pleading to the effect that the defendant had a proprietary interest in the restaurant business or any other property in which the plaintiff had an interest. Secondly, the evidentiary foundation for the suggestion that the defendant had a proprietary interest in the restaurant business is lacking. Even if it is accepted that she worked in the business without pay, that is not sufficient in itself to establish the existence of such an interest. Thirdly, the mere possibility that the defendant might in the future obtain orders in relation to property pursuant to an application under the Family Law Act 1975 does not mean that the defendant has any proprietary interest in any property owned by the plaintiff, let alone such an interest when the car and the boat were acquired, which was prior to the breakdown of the de facto relationship. 36In my view, a presumption of a resulting trust in favour of the plaintiff arises in relation to both the car and the boat. That is to say, in each case, a presumption arose that the plaintiff did not intend the defendant to obtain a beneficial interest in the property. In these circumstances, the central question becomes whether either or both of those presumptions have been rebutted by evidence to the contrary. 37Aside from admissions against interest, evidence that is admissible on that question includes the acts and declarations of the parties at the time of the transaction, or as part of the transaction, and evidence of facts as to subsequent dealings and of surrounding circumstances (see The Trustees of the Property of Cummins v Cummins and Another [2006] HCA 6; (2006) 227 CLR 278 at [65]).

Submissions 38Both Mr Young and Mr Oliveri proceeded on the basis that the outcome of the case essentially depended upon whether the Court preferred the plaintiff's version of events or the defendant's version of events. The submissions were thus focused upon the inherent likelihoods of the competing versions, and the manner in which the parties gave their evidence in the witness box. 39Mr Young submitted that the Court should accept the plaintiff's evidence to the effect that he wanted the car and later the boat put into the defendant's name because he was concerned that if his wife found out that he had a new car and a new boat, she would be jealous and upset. Mr Young submitted that it should not be concluded that the plaintiff intended to give the car and boat to the defendant in order to defeat potential property claims by his wife. In this regard, he pointed to the plaintiff's evidence, which was not challenged in cross-examination, that he obtained some legal advice that his wife would not be able to claim assets that were acquired after the couple had separated. Mr Young submitted that it was unlikely that the plaintiff would make a gift of the Prius, which was purchased as a replacement for the Accord, as that would leave the plaintiff without any vehicle of his own, albeit that the Prius was probably intended to be used by both the plaintiff and the defendant. He further submitted that it was unlikely that the plaintiff would have given the defendant the very expensive boat, especially as owning a boat had been the plaintiff's dream, the defendant seemed to think that buying a boat was a waste of money, and the relationship was by mid-2013 somewhat strained. 40Mr Young also made numerous criticisms of the defendant's evidence. He submitted that her demeanour was poor in that she took excessive time to give her answers, regularly avoided questions, and made self-serving statements. Mr Young pointed to various aspects of the defendant's testimony which he said adversely affected her credit, including her evidence about the gathering of $170,000 in cash for the settlement of the purchase of the boat; the inclusion of detail in her affidavit about the assault on 12 October 2013, which detail was not present in the statement given by her to the police; and her reluctance to concede in cross-examination that she had spoken to brokers about selling the boat. 41Mr Oliveri submitted that it was not credible that the plaintiff would merely ask the defendant to hold the assets in her name without benefit to her, or that the defendant would agree to such an arrangement. He submitted that it was clear that the plaintiff not only wanted to hide the assets from his wife, he wanted to put them beyond her reach by giving them to the defendant. He submitted that, having regard to the relationship between the plaintiff and the defendant, during which the prospect of marriage had been discussed, it was likely that the plaintiff wanted to make gifts of the car and boat to the defendant and that he would have told her so. 42Mr Oliveri also made various attacks on the plaintiff's evidence, including that he was unresponsive to questions (particularly in relation to the significance of family law considerations), and was inconsistent in relation to the strength of the relationship he had with the defendant.

General assessment of the plaintiff and the defendant as witnesses 43The plaintiff presented reasonably well as a witness, although some parts of his testimony were a bit confused and contradictory. Those deficiencies, which are referred to further below, are likely to be partly attributable to evident limitations upon the plaintiff's ability to speak English at a high level. The plaintiff gave his evidence without the aid of an interpreter, and whilst he appeared to understand the questions put to him, his responses showed that his command of the language was incomplete. 44Overall, I gained a generally favourable impression of the plaintiff as a witness. He appeared to be making an effort to accurately answer the questions put to him. He was quite prepared to make concessions, such as in relation to the extensive use made by the defendant of the Accord and later the Prius, and he readily accepted that his memory of dates was not very good. He made no attempt to deny that very large amounts of cash from the takings of his business were kept in his apartment. 45One area where the plaintiff's testimony was confused and contradictory was his evidence as to when his wife knew about his relationship with the defendant. The plaintiff initially seemed to accept that his wife knew of the relationship at the time the Prius was purchased, but he later gave evidence that she did not find out about the defendant until after that purchase. The plaintiff's evidence about his understanding of the family law situation he was in was also confused and contradictory, especially as to his understanding of whether he might need to disclose his interests in the car and the boat. However, as noted earlier, the plaintiff was not challenged as to whether he had in fact received legal advice to the effect that his wife would not be able to claim assets that were acquired after the couple had separated. Moreover, the extent to which any such advice extended to questions of disclosure was not explored in any detail. 46In these circumstances, and bearing in mind that no property proceedings were on foot between the plaintiff and his wife, I am prepared to accept the plaintiff's evidence that he did not think that his wife would be able to claim the Prius or the boat, and that he did not think that he would need to disclose those assets, but would do so if he had to. 47In making those findings, I have not overlooked the fact that in answer to one question in cross-examination the plaintiff apparently conceded that, in discussing the purchase of a boat with the defendant, he said he didn't want his wife to find out about the boat "or she will claim half of it". The overall thrust of the plaintiff's evidence was that, based on the advice he received, he was not concerned about such a claim. 48The defendant gave her evidence through an interpreter. Mr Young submitted that she took full advantage of the existence of the interpreter "as a shield" and took excessive time to put out "very carefully considered answers". It is true that the defendant was prone to taking considerable time to give her answers, but I would not discount her evidence solely on that account. Nevertheless, some parts of her evidence did cause me some concern, and my overall assessment is that her evidence has to be treated with some caution. 49Her evidence about the payment of the $170,000 for the boat is one example. It is clearly implied in her affidavit that the payment was made in cash which had been obtained from hiding places in the apartment where they lived. There is no mention in the affidavit of any cheques. However, in cross-examination, after referring to the cash amount of $170,000, the defendant said that she had been given the cash and thought that she had gone to get "the bank cheque". In her next answer, she said that she gave the cash to the plaintiff, who went to the bank to get "a bank cheque". After being pressed about the lack of any mention of a cheque in her affidavit, the defendant said: "I haven't said cash. Maybe there is a translation error." 50In further answers given on the topic, it became clear that the defendant had no real recollection of the fact that the payment of the outstanding purchase price for the boat was effected by the two cheques drawn by ABC Staff Hire Pty Ltd. That the payment was effected in that manner is clearly established by the receipt issued by Empire Boat Sales. 51The defendant's version of this event as contained in her affidavit is inaccurate insofar as it suggests the payment was made in cash, and is on any view incomplete. Even assuming, in the defendant's favour, that this was not a deliberate deception, it casts some doubt upon her reliability as a witness. 52I also found the defendant's evidence about her dealings with Sydney Boat Brokers in December 2013 to be unimpressive. When the cross-examination resumed on the second day of the hearing, the defendant seemed to want to downplay the fact that she had contacted them because she wanted to sell the boat. However, the email communications clearly show that the sale of the boat was the subject of discussion and that the brokers had been appointed by the defendant as her representative "for the care and sale of the vessel". Indeed, the emails suggest that the defendant was keen to sell the boat. At one point the defendant wrote that the news that an enquiry had been received from potential buyers made her "really happy". 53When faced with the content of one of the emails, the defendant did concede that she had contacted Sydney Boat Brokers and told them that she was interested in selling the boat. Her evidence in this respect is puzzling because her dealings with Sydney Boat Brokers are referred to in her own affidavit and she had readily agreed on the first day of the hearing that by December 2013 she had advertised the boat for sale. Again, the evidence tends to cast doubt upon the reliability of the defendant's evidence.

(a) The Prius motor vehicle 54After considering the whole of the evidence in relation to the Prius, I do not think that the presumption of resulting trust has been rebutted. I am prepared to accept the plaintiff's evidence that a conversation to the effect of that which is set out at [11] above took place. I accept that he asked the defendant whether he could purchase the car in her name, and gave as a reason that he did not want his wife to find out he had a new car. I further find that the defendant was content for that to occur. There is no reason to think that she would not have agreed to assist the plaintiff in that fashion. 55I do not think that the plaintiff told the defendant that he wanted to buy a car for her, as claimed by the defendant. It may be the case, nonetheless, that the defendant has mistakenly treated a discussion about purchasing the car in her name as a discussion about giving the car to her to own. The new car was plainly purchased as a replacement for the old Accord which had reached the end of its useful life. The use of the Accord had essentially been shared between the plaintiff and the defendant. The defendant, by reason of her extensive use of the Accord, seems to have thought that, in some sense, it was hers. In the course of cross-examination, she said that she was "using it as our car" and further said: "If you are not talking about registration, I think it was my car". 56If that was her view, it is likely that she would have thought that the replacement car was her car, especially if it was registered in her name. I note that the defendant also gave evidence that whilst the Prius was a replacement vehicle, "the main user of the car is myself so he said he was buying it for me". 57I further note that, at another point in the cross-examination, the defendant seemed to accept that the plaintiff had said to her: "Do you mind if I put the car in your name", although she added "because it's my car". It is also relevant to note that the defendant conceded that she had later said to the plaintiff that the sticker she had brought back from Japan would "look cool on your car". If such words were said (which in my opinion is likely), it rather suggests that the defendant did in fact appreciate that the car had not been given to her to own. 58I do not think that the plaintiff's version of events is implausible, as Mr Oliveri suggested. There was evidence that the plaintiff was paying maintenance and child support to his wife of approximately $4,000 to $5,000 per month. There were no property proceedings yet on foot. The plaintiff may well have seen it as in his interests for his wife not to know about any new car, and may well have thought that placing the registration in the defendant's name would make it less likely that his wife would find out about the car, and less likely that she would be antagonised. If, as appears to be the case, the plaintiff had been advised (whether correctly or not) that assets acquired after the separation from his wife could not be claimed by her, there would be little reason to put such assets into the defendant's name in order to defeat potential claims. Moreover, given that powers are given under the Family Law Act to make property orders against third parties (see, for example, s 90AE of that Act) it is doubtful whether placing assets in the names of, or making gifts to, third parties would be effective in defeating such claims. 59Having regard to the generally favourable impression I formed of the plaintiff, I accept his evidence that purchasing the Prius in the defendant's name was to serve the purpose he stated, of making it more difficult for his wife to find out that he owned such property, and was not done with the intention of giving beneficial ownership to the defendant. 60I also note that it was put to the plaintiff in cross-examination that he put the car and the boat into the defendant's name because he wanted to persuade the defendant not to leave him. However, whilst there is evidence that the relationship was facing difficulties in 2013, there was no evidence that, prior to the purchase of the car or the boat, the defendant had threatened to leave the plaintiff.

(b) The Silverton boat 61I am also of the view that, on the whole of the evidence, the presumption of resulting trust has not been rebutted in relation to the boat. I do not think that the purchase of the boat in the defendant's name was done with the intention of giving her the beneficial ownership of the boat. 62Again, having regard to the generally favourable impression I formed of the plaintiff, I accept that in the course of discussions about the possible purchase of the boat the plaintiff suggested that the boat be put into the defendant's name, and that the reason given was so that the plaintiff's wife would not get jealous. I prefer the plaintiff's evidence in this respect to the evidence of the defendant set out at [24] above. For similar reasons to those given at [58] above, I do not think that the plaintiff's version of events should be seen as implausible. 63I also agree with the submission made by Mr Young that it is unlikely that the plaintiff would have wanted to make a gift of a very expensive boat in circumstances where owning such a thing had been the plaintiff's dream for some time, and the defendant seemed to think that to buy the boat was a waste of money. However, I do not think that the strained state of the relationship can be called in aid as a further reason tending against a gift. The plaintiff, on his own version of events, said he wanted to put the boat into the defendant's name because she was the closest person to him that he could trust.

Conclusion 64Accordingly, it is my opinion that the defendant holds both the Prius and the Silverton boat as trustee for the plaintiff. Declarations to that effect should be made, together with orders for the delivery up of the property to the plaintiff. 65It seems to me that such orders should be made upon conditions that the plaintiff reimburse the defendant for any reasonable costs she has incurred in the course of holding the assets, including the berthing fees and electricity charges she has paid in relation to the boat. At this stage, I will merely direct the parties to bring in Short Minutes to give effect to these reasons.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2014