TRUSTS - express or resulting trust - intention to create a trust

• where property purchased and legal title registered in mother's name but her son and daughter-in-law contributed to part of the purchase moneys - whether later affidavit evidence establishes express trust - declaration of express trust

Conveyancing Act 1919 (NSW) s 23C

Imperial Acts (Substituted Provisions) Act 1986 (ACT) (repealed) sch 2 pt 11

Law Reform (Miscellaneous Provisions) Act 1955 (repealed) ss 51, 52

Law Reform (Miscellaneous Provisions) Act 1999 (ACT) sch 3

Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495

Anderson v McPherson (No 2) [2012] WASC 19

Barkworth v Young (1856) 26 LJ Ch 153

Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390

Brown v Brown (1993) 31 NSWLR 582

Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253

Calverley v Green [1984] HCA 81; (1984) 155 CLR 242

Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353 Commissioner of State Revenue v Lam & Kym Pty Ltd [2004] VSCA 204; 10 VR 420

Comptroller of Stamps (Vic) v Howard-Smith [1936] HCA 12; (1936) 54 CLR 614

Cowcher v Cowcher [1972] 1 All ER 943

Currie v Hamilton [1984] 1 NSWLR 687

Dinsdale bht the Protective Commissioner v Arthur [2006] NSWSC 809

DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431

Draper v Official Trustee in Bankruptcy [2006] FCAFC 157; 156 FCR 53

Drever v Drever [1936] ALR 446

Forster v Hale [1798] EngR 78; (1798) 3 Ves 696; 39 ER 1226

Hyphonie Holdings Pty Ltd & Anor v Leroy & Anor [2004] NSWCA 72

Ingram v Ingram [1941] VicLawRp 20; [1941] VLR 95

Inland Revenue Commissioners v Raphael; Inland Revenue Commissioners v Ezra [1935] AC 96

Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86

Martin v Martin [1959] HCA 62; (1959) 110 CLR 297

Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583

Napier v Public Trustee (Western Australia) (1980) 32 ALR 153 Ong v Lottwo Pty Ltd (in liq) [2013] SASCFC 57; 116 SASR 280 Permanent Trustee Co v Scales [1930] NSWStRp 51; (1930) 30 SR (NSW) 391 Rochefoucauld v Boustead [1897] 1 Ch 196

Russell v Scott [1936] HCA 34; (1936) 55 CLR 440

Ryan v Dries [2002] NSWCA 3

Scientific Management Associates (Australia) Pty Limited and Keith Eddy Snell v Australian Capital Territory [1999] ACTSC 17 Shepherd v Cartwright [1954] UKHL 2; [1955] AC 431

Shepherd v Doolan [2005] NSWSC 42

Smith v Matthews (1861) 3 D.F. & J 139; [1861] EngR 426; 45 ER 831

Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415

Weige v Cupton Pty Ltd [2012] NSWCA 414; 8 ASTLR 229

White v Shortall [2006] NSWSC 1379; 68 NSWLR 650

J D Heydon and M J Leeming, Jacob's Law of Trusts (LexisNexis Butterworths Australia, 8th ed, 2016)

Public Trustee and Guardian for the Australian Capital Territory (as guardian and manager of Eileen Idau Hurst-Meyers) (first defendant)

Snedden Hall & Gallop (first defendant) Self-represented (second defendant)

1. This proceeding concerns the legal and equitable interests in a residential property in Fisher in the Australian Capital Territory (Fisher property).
2. The plaintiff lives in the Fisher property with his mother, Mrs Eileen Hurst-Myers, who has been the registered proprietor (Crown lessee) of the Fisher property since 1998,

and now suffers from dementia. The first defendant (Public Trustee) is her financial guardian and manager, representing her interests in these proceedings.

1. The originating application filed 5 December 2016 initially sought an order that the Fisher property 'is the subject matter of an express trust', with Mrs Hurst-Meyers as the trustee and the plaintiff as sole beneficiary.
2. The plaintiff's former wife, Ms Liza Hurst-Meyers, has been joined as the second defendant in these proceedings. The joinder occurred after the evidence and submissions had closed, following the raising of the issue by the Court, pursuant to r 220 of the Court Procedure Rules 2006 (ACT). The Public Trustee consented to the joinder. It was clear that her interests were directly affected by the orders that were sought and that she was therefore a necessary party to the proceedings. She was married to the plaintiff at the time the property was purchased in 1998 and although they later separated in approximately 2004, and divorced in 2005, there has never been a financial settlement between the two. She will be referred to as the second defendant throughout these reasons, to clearly distinguish her from her former mother-in-law, Mrs Hurst-Meyers.
3. Ultimately, the joint position of the plaintiff and the second defendant became that while the Fisher property is registered in the name of Eileen Hurst-Myers, the Fisher property is held on trust (whether express, resulting or constructive), either for the plaintiff as sole beneficiary or in the alternative for the plaintiff and the second defendant, with each of them beneficiaries in equal shares.
4. The parties have agreed that if the Court finds the Fisher property to be the subject of a trust, then declaratory relief is appropriate, and no further orders are required. The plaintiff currently undertakes the care of his mother, and regardless of the outcome of the present application, they will both continue to live together (in the Fisher property or otherwise) for as long as health permits.
5. The reason the proceedings have been brought is to achieve certainty of the position, as the Public Trustee has foreshadowed potentially selling the Fisher property to provide sufficient funds for the future care of Mrs Hurst-Meyers. At the time the trust was purportedly created, and in the years that followed, no one foresaw the onset of Mrs Hurst-Meyers' dementia and the difficulties that would create.
6. The proceedings were properly defended by the Public Trustee, who has an ongoing duty as financial guardian of the mother to protect and manage Mrs Hurst-Meyers' financial interests. The Public Trustee has, for many months, been seeking the appropriate documentation or other evidence to establish the position for which the plaintiff contends in these proceedings.
7. However, the plaintiff, who has at all times been self-represented, failed to produce the material necessary to enable the Public Trustee to accept the claimed interest, in the proper discharge of its obligations as financial guardian. It was really only after the plaintiff was cross-examined that certain facts came to light or were given in proper evidentiary form and even then, some of the critical evidence is equivocal. The totality

of the documentary evidence relied upon by the plaintiff was also only provided to the first defendant at the hearing.

1. As will be apparent from the reasons that follow, the totality of the evidence establishes, on the balance of probabilities, that the beneficial interest lies with the plaintiff and (with his consent) his former wife, notwithstanding that the legal title to the Fisher property is solely in his mother's name.

1. The sole subject matter of the alleged trust is real property. At the time the Fisher property was purchased in 1998, the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) applied. Section 51 was the applicable provision to declarations of trust. The material parts of that provision are set out as follows:

(1) Subject to this division -

• (a) an interest in land cannot be created or disposed of by a person except -
  • (i) by writing signed by the person, ... or

...

(b) a declaration of trust by a person in respect of land or an interest in land must be -

• (i) in writing signed by the person; or

...; and

(c) a disposition by a person of an equitable interest or trust subsisting at the time of the disposition must be -

• (i) in writing signed by the person ...

...

(2) Subsection (1) does not affect the creation or operation of a resulting, implied or constructive trust.

1. Sections 51 and 52 of that now repealed statute were re-enacted in substantially the same terms as ss 201 and 202 respectively of the Civil Law (Property) Act 2006 (ACT) (Act). Section 201 of the Act prescribes the statutory requirements of an express inter vivos trust.
2. Under s 201(1) of the Act, an interest in land cannot be created or disposed of by a person except by writing, signed by the person or by the person's agent properly authorised in writing; by the person's will; or by the operation of law.
3. Pursuant to s 201(2) of the Act:
   • (2) A declaration of trust by a person in relation to an interest in land must be -
     • (a) in writing signed by the person; or
     • (b) made by the person's will.
4. As with the provision's predecessor, this section does not affect the creation or operation of a resulting, implied or constructive trust: s 201(4) of the Act.
5. Under s 202 of the Act, where the interest in land is created by word of mouth, and not put into writing signed by the person creating it, or by the person's agent properly authorised in writing, the interest is an interest at will only, whether or not consideration is given for it.

1. The following general principles, to the extent that they are relevant to the circumstances of this case, have been summarised below.
2. The starting position is that the beneficial ownership of real property is commensurate with the legal title: Currie v Hamilton [1984] 1 NSWLR 687 (Currie v Hamilton) at 690, per McLelland J.
3. The four elements required for a trust to be created are an identified trustee; one or more beneficiaries (or a charitable purpose); trust property; and an equitable obligation that binds the trust property: Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 (Muschinski v Dodds) at 613-614; see also J D Heydon and M J Leeming, Jacob's Law of Trusts (LexisNexis Butterworths Australia, 8th ed, 2016) at [1-04].

1. Following the authority of Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86 (Kauter v Hilton) at 97 per Dixon CJ, Williams and Fullagar JJ, an express trust requires (in addition to the statutory requirements set out above):
   • (a) Certainty of intention on the part of the settlor to create the trust (which is assessed subjectively, albeit reference can be made to objective circumstances: Hyphonie Holdings Pty Ltd & Anor v Leroy & Anor [2004] NSWCA 72 at [43]; White v Shortall [2006] NSWSC 1379; 68 NSWLR 650 at [128]- [129]);
   • (b) Certainty of subject matter, so that the trust property is clearly defined; and
   • (c) Certainty of object, that is certainty as to who are the beneficiaries of the trust.
2. The Court may infer intention, and may look to the nature of the transaction and the whole of the circumstances attending the relationship between the parties and known to them: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 262 (Calverley v Green); Inland Revenue Commissioners v Raphael; Inland Revenue Commissioners v Ezra [1935] AC 96 at 142-143; Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at [98], [102]-[114].
3. No particular form is necessary for the creation of an express trust. However, the intention of the settlor to create a trust must be explicit. In every case it is a question of fact for the court to determine whether an intention to create a trust is sufficiently evidenced: Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390 (Bloch) at 396 per Wilson J (with whom Gibbs CJ, Murphy and Aickin JJ agreed).
4. The overall question is whether, on the true construction of what was said and written, the circumstances of the case manifest sufficient intention to create a trust: Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at 422.

1. In order for an express trust to be enforceable under s 201 of the Act, it is not necessary that it be created by writing; merely that it be 'in writing', meaning that there be writing recording the essential elements of the trust.
2. That principle arises from the legislative history of the provision. It is more clearly seen in equivalent provisions in other jurisdictions, such as s 23C(1)(b) of the Conveyancing Act 1919 (NSW) (NSW Act), which provides (emphasis added):

a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person's will ...

1. In Forster v Hale [1798] EngR 78; (1798) 3 Ves 696; 39 ER 1226 (Forster v Hale) it was stated at [707] (emphasis added):

It is not required by the Statute, that a trust should be created by a writing; and the words of the Statute are very particular in the clause (sect. 7) respecting declarations of trust. It does not by any means require, that all trusts shall be created only by writing; but that they shall be manifested and proved by writing; plainly meaning, that there should be evidence in writing, proving, there was such a trust.

1. The reference to the Statute is to the Statute of Frauds 1677 29 Car 2, c 3 (UK) (Statute of Frauds), the genesis for s 23C(1)(b) of the NSW Act.
2. Thus, the writing constituting an express trust need not be contemporaneous with the transaction, but may be brought into existence later: Forster v Hale at 1231; Rochefoucauld v Boustead [1897] 1 Ch 196 (Rochefoucauld) at 206; Permanent Trustee Co v Scales [1930] NSWStRp 51; (1930) 30 SR (NSW) 391 at 393.
3. It will be seen from the words of s 201(2) of the Act, set out above, that the words 'manifested and proved' have been omitted from the equivalent provision in the Territory. However, the slightly different language used in the current Act ought not be construed as effecting any change to the long-established principles deriving from judicial interpretation of s 7 of the Statute of Frauds.
4. This is because s 201 of the Act also derives from the Statute of Frauds. The now repealed Imperial Acts (Substituted Provisions) Act 1986 (ACT) preserved s 7 of the Statute of Frauds through sch 2 pt 11. This fact was referred to in Scientific Management Associates (Australia) Pty Limited and Keith Eddy Snell v Australian Capital Territory [1999] ACTSC 17 per Miles CJ at [46].
5. Through the Law Reform (Miscellaneous Provisions) Act 1999 (ACT) sch 3, those sections then became what was ss 51-54 of the Law Reform (Miscellaneous Provisions) Act 1955.
6. It is therefore sufficient compliance with s 201(2) of the Act that there be subsequent written manifestation as evidence of the existence of the trust: Rochefoucauld at 206.
7. The trust nevertheless takes effect from the time when it was declared orally, not from the date when the written record is made. The date of the writing is immaterial: Rochefoucauld at 206 per Lindley LJ delivering the judgment of the Court and having earlier cited Forster v Hale and Smith v Matthews (1861) 3 D.F. & J 139; [1861] EngR 426; 45 ER 831; see also Jacob's Law of Trusts at [7-08].
8. As to the form of the declaration of trust, there is no set form, or form of words, as long as the essential elements of the trust are clear from what is written by the settlor. Of relevance to the present case, an affidavit executed after, and even well after, the alleged declaration of trust or agreement may be sufficient to satisfy the written requirement of s 201 of the Act: Barkworth v Young (1856) 26 LJ Ch 153; see also Draper v Official Trustee in Bankruptcy [2006] FCAFC 157; 156 FCR 53 at [159] per Besanko J.
9. Where the circumstances do not yield with sufficient certainty the expression of an intention to create an express trust, the facts may nevertheless constitute a resulting trust, as seen, for example in Bloch where a man and his parents arranged orally to purchase a block of flats in the son's name, and the parents contributed about one-third of the price and the son the balance. The Court drew the inference the parents intended their son to hold the property on trust for them in a proportion corresponding to the proportion of the purchase price which was contributed by them, finding that the facts gave rise to the creation of a resulting trust notwithstanding the absence of a clear expression of an intention to create an express trust.

The presumption of a resulting trust - purchasing land in another's name

1. The prima facie position that beneficial ownership of real property is commensurate with legal title is displaced by the presumption of a resulting trust arising from payment of the purchase price by someone else, unless that presumption is in turn rebutted by the presumption of advancement, or by evidence: Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 (Martin v Martin); Calverley v Green. A helpful summary is also found in Dinsdale bht the Protective Commissioner v Arthur [2006] NSWSC 809 at [10]- [11], per Brereton J.
2. Where on a purchase, the legal title to real property is vested in someone other than the person who is proved to have provided the purchase money, a resulting trust will be presumed in favour of the person who paid the money. The law presumes that, subject to contrary intention, persons who voluntarily purchase property in the name of another do not intend the latter to hold the property beneficially, but rather intend the property to be held on resulting trust for them: Calverley v Green at 266.
3. Where parties contribute unequally to the purchase price of property, they are presumed to hold it beneficially pro-rata to their contributions to the purchase price: Martin v Martin; Calverley v Green at 246, 258-259, 266-267.
4. The moneys contributed to the 'purchase price' must bear the character of purchase moneys, and not be provided by way of a gift or a loan or some other commercial basis, such as a contractual obligation which is independent of the use to which the money might be put by the recipient: Calverley v Green at 246; Ong v Lottwo Pty Ltd (in liq) [2013] SASCFC 57; 116 SASR 280 at [28]- [30], cited in Tjen v Bilic [2017] NSWSC 364 at [70].
5. The 'purchase price' includes costs, fees and disbursements incidental to the acquisition of the property: Ryan v Dries [2002] NSWCA 3 at [52]- [53].
6. Unless the evidence establishes a contrary position, if the purchase price is funded in whole or in part by moneys raised on mortgage, the mortgage moneys are treated as a contribution by the person who is liable to repay them; where purchasers jointly borrow funds on mortgage loan, they are to be regarded as contributing the part of the purchase price so raised equally: Calverley v Green at 251 (Gibbs CJ), 257-258 (Mason and Brennan JJ), 267-268 (Deane J).
7. The resulting trust arises at the exact moment when the entire interest is vested in the transferee: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1982] HCA 14; (1982) 149 CLR 431 at 463-464.

1. The presumption of a resulting trust may be rebutted by evidence to the contrary: Napier v Public Trustee (Western Australia) (1980) 32 ALR 153 at 158 (Aickin J, with whom Gibbs CJ, Mason, Murphy and Wilson JJ agreed). However, it is a presumption which is not displaced by slight circumstances: Shepherd v Cartwright [1954] UKHL 2; [1955] AC 431 at 445; Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353 (Charles Marshall v Grimsley) at 365; Brown v Brown (1993) 31 NSWLR 582 at 596.
2. The burden of rebutting the presumption of a resulting trust falls upon the party seeking to rely on the legal title (here, the Public Trustee). Rebuttal of the presumption of resulting trust requires proof of a 'definite intention' not (in the words of Dixon J in Drever v Drever [1936] ALR 446 at 450) a 'nebulous intention': Weige v Cupton Pty Ltd [2012] NSWCA 414; 8 ASTLR 229 at [46] per Ward JA (as her Honour then was, and with whom Basten JA and Sackville AJA agreed).
3. In Anderson v McPherson (No 2) [2012] WASC 19, Edelman J (as his Honour then was) noted, at [98], that the intention is an objective, manifest intention (not an unexpressed subjective intention). Again, such an objective intention is to be assessed at the time of the acquisition of the property: Ryan v Ryan [2012] NSWSC 636, per Ward J (as her Honour then was) at [75].
4. A Court will not give effect to the presumption where this would be inconsistent with the true intention of the person upon whose presumed purpose it must depend. The presumption of a resulting trust cannot prevail over the actual intention of the party as established by evidence: Muschinski v Dodd at 612.

1. Further, a resulting trust will not arise where the legal title vests in a person that the person providing the purchase moneys is under an obligation to support: Calverley v Green per Gibbs CJ at 247-248. This is described as the presumption of advancement, and an example is the case of a parent providing money to purchase a property in the name of a child.
2. The presumption of advancement does not apply to other family relationships. Where, for example, an adult child provides money to purchase a property in the name of a parent, the presumption of advancement will not operate to defeat the resulting trust that

would otherwise arise on the principles set out above. However, in a case where there is no presumption of advancement, satisfactory affirmative proof of an intention to confer a beneficial interest supplies the place of the presumption: Russell v Scott [1936] HCA 34; (1936) 55 CLR 440 at 453 per Dixon and Evatt JJ.

1. The extent of the beneficial interests of the respective parties must also be determined at the time when the property was purchased and the trust created: Calverley v Green per Gibbs CJ at 252-253. Apart from admissions, the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase, or so immediately thereafter as to constitute a part of the transaction: Charles Marshall Pty Ltd v Grimsley at 365.
2. The initial interests established are not changed by later contributions to the conservation or improvement of the property. Similarly, where a joint mortgage debt is subsequently repaid by one party alone, that does not then alter the original extent of the interests between the parties, although it might be relevant in determining accounts between the parties: Ingram v Ingram [1941] VicLawRp 20; [1941] VLR 95 at 102; Cowcher v Cowcher [1972] 1 All ER 943 at 959;
3. However, the evidence might establish a contrary position. Citing Currie v Hamilton at 691, in Shepherd v Doolan [2005] NSWSC 42 (Shepherd), White J (as his Honour then was), at [23]:

If the evidence establishes that it was the intention of the parties that their respective interests should be in accordance with something other than their contributions to the purchase price, such as their contributions to the purchase of the land and discharge of a mortgage, effect will be given to that intention so that although the trust will arise at the time of purchase, the quantum of their interests will fluctuate in accordance with that intention.

1. Shepherd was recently cited in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [207]. See also Calverley v Green at 262-263.

1. The plaintiff relied upon three affidavits sworn by him on 5 December 2016, 11 August 2017 and 21 November 2017. There were a number of exhibits to these affidavits, which included statutory declarations and statements by people read in other proceedings and therefore directed to issues that were not in issue before this Court. Because of their volume, the exhibits were admitted, subject to the plaintiff identifying and establishing the relevant material for these proceedings.
2. Among these was the affidavit of Mrs Eileen Hurst-Meyers sworn 2 October 2008. This was an affidavit sworn at a time when the parties agreed Mrs Hurst-Meyers had legal capacity. The difficulty for the Public Trustee was that, notwithstanding Mrs Hurst- Meyers was its client, because of her illness, she is now unable to be cross-examined or lead any evidence to clarify or contradict what was contained in that earlier affidavit. She is effectively an unavailable witness. I have taken that into account when weighing the factual matters below.
3. The plaintiff also relied on:
   • (a) An affidavit affirmed by the second defendant on 11 August 2017;
   • (b) Two affidavits sworn by the plaintiff's brother, Mr Michael Hurst-Meyers, on 22 September 2012 and 20 November 2017;
   • (c) An affidavit of Ms Charmayne Hurst-Myers, one of the plaintiff's sisters, sworn 27 February 2017;
   • (d) An affidavit affirmed by Mr Steven Whybrow, barrister, on 5 October 2017; and
   • (e) An affidavit of Mr Craig Poole sworn 21 November 2017.
4. Only the plaintiff was cross-examined. I found him to be a generally credible witness, although this does not mean that I have accepted everything he said, as set out below. Although some of the events happened many years ago, the explanations for why certain things were done and why certain records are not in evidence or not available were plausible on the whole, consistent with the evidence of other witnesses, and recollected at a level of detail that gave me confidence the evidence being given was truthful.
5. The Public Trustee relied on the affidavit of its legal representative, Mr William Michael Andrews, solicitor. He was not cross-examined and I have accepted that evidence to the extent that it places before the Court as much detail and information as the Public Trustee had been able to obtain. I have of course drawn my own inferences from the documentary material, in light of the substantial further evidence that has been provided by the plaintiff after that affidavit was sworn.

1. Although a significant number of documents were exhibited or tendered, there were not very many contemporaneous documents at the time the Fisher property was purchased, which is of critical importance to the question of whether there was an express or resulting trust in this case. What follows is not a summary of all the evidence. The findings below set out the matters that are material to my conclusions.

1. There is no doubt that the Fisher property was purchased in 1998 for the sum of

1. It was purchased with the assistance of a mortgage from Citibank in the sum of $99,000. The mortgage was in the sole name of Mrs Hurst-Meyers. Neither the plaintiff nor the second defendant were guarantors.
2. I find that the remaining $45,000 was jointly paid by the plaintiff and second defendant. That finding has been reached on the balance of probabilities by drawing the inferences below, as the evidence supporting the fact was scant.
3. The first consideration was the circumstances of the purchase. The plaintiff and the second defendant chose this house as their family home. The second defendant spent three years searching for an appropriate but affordable property. Among other things, they required a room large enough to accommodate a round mahogany polished dining table seating ten and a large backyard for the family.
4. The second defendant's evidence establishes that she was directly involved in finding the property, negotiating with the real estate agent, and attending at the solicitor's office in relation to purchase (discussed below). Her firm belief was that she and the plaintiff were buying their family home.
5. As part of the circumstances, the plaintiff deposes to having a conversation with his mother during which he told her that he and the second defendant had found a home in Fisher, and that he wanted to buy it and live there with his family. He said, 'we can fit our large dining table in it, and I like it...but Ma, I want to put the property in your name and you hold it on trust for me.'
6. Mrs Hurst-Meyers responded, 'It's your house, you do what you want'.
7. The plaintiff then said, 'I'll pay for the property, and all of the expenses of the property, but the property will be in your name, not mine, but the property belongs to me, okay?'
8. In sworn oral evidence, the plaintiff said he had decided to put the home in the name of his mother after a conversation with a friend (identified by the plaintiff). The friend had a business that 'went south' when a client refused to pay him. The friend was ultimately made bankrupt, and the plaintiff was surprised that he did not lose his house when that occurred. The plaintiff asked his friend words to the effect of 'How come you did not lose your house?' The friend said, 'Put your house in your mum's name and you'll keep it like I did.'
9. The plaintiff said he followed that advice. He implicitly trusted his mother with his life, but he never expected that she would suffer from dementia.
10. Those circumstances favour the plaintiff and second defendant paying the money necessary to purchase their family home. The plaintiff's intention to 'pay for the property and all of the expenses of the property' may be taken as a reference to the plaintiff and his then wife, the second defendant, jointly paying for the Fisher property.
11. The second consideration is any evidence about the source of the funds. There is no direct evidence of any bank statement or other document showing $45,000 paid to the vendor. The plaintiff asserts that cash was withdrawn from his bank account and given to the solicitor acting on the purchase. I have inferred that the moneys came from pooled funds between the plaintiff and the second defendant via the business of RHM Industries International Pty Limited (ACN 074 621 202). The second defendant deposes to her being a joint owner with the plaintiff of that business at the time.
12. At a separate point, the plaintiff deposes to paying the 'deposit'. He may have meant the remaining purchase moneys, but he then deposes to the deposit being an amount of $13,781.05, and that he paid legal fees to Clayton Utz of $573.60 at the same time.
13. An undated piece of paper with Clayton Utz letterhead on it was in evidence. The plaintiff described this as a receipt, which it plainly was not. The handwriting on the Clayton Utz letterhead states:

RJ Scott and BR Scott $13,781.05 Clayton Utz $573.60

1. The total amount written underneath was $14,354.65. The piece of paper also contains a number of phone numbers, including the office phone number for Snedden Hall and Gallop, who may have been the solicitors acting on the sale of the Fisher property for the vendor.
2. I accept that this document was created in 1998 at the time of purchase of the Fisher property. However, in my view, the plaintiff was confused about this being any record of the 'deposit' for the property. It is more likely that these were the amounts the plaintiff was being told to pay to complete the purchase, and possibly the details of specific cheques to be drawn.
3. I have drawn this inference in part because the amount written down is an odd amount for a deposit and the payee details beside it are not those of the vendors. Common experience suggests that a ten percent deposit would have been the usual deposit, being $14,400, and it is more likely than not to have been paid direct to the vendor or the vendor's solicitor at the time the contract was exchanged.
4. Moreover, the historical title search in evidence records that there was an existing mortgage to 'Robert James Scott and Beverley Rae Scott as joint tenants'. I have inferred that the reference to RJ Scott and BR Scott on the Clayton Utz document was a reference to the amount required to pay out the mortgagees on completion. It is highly unlikely that deposit funds would be paid direct to the mortgagees. It is more likely to have been part of the funds necessary to complete the purchase.
5. The second defendant did not address who paid the purchase moneys. However, she deposed to her surprise and anger at learning that Mrs Hurst-Meyers was to be involved at all in the purchase of the Fisher property. She only became aware of the decision to register the title to the Fisher property in the name of Mrs Hurst-Meyers when she attended the offices of Clayton Utz in relation to the purchase.
6. There is some material before the Court, purportedly written by other family members, that is consistent with the plaintiff and second defendant providing the purchase moneys. The plaintiff relied on a statement or submission from one of his sisters, Ms Kim Hurst- Meyers, to the ACT Civil and Administrative Tribunal. In that submission, it is stated:

It is my understanding that the property was found by Ralph and his ex-partner... . He had a deposit of approximately $35,000 and the bank refused to give him the loan. He then approached my mother to take on the mortgage agreeing to pay the monthly repayments till the property was paid out.

1. The document is not signed and is hearsay, at best reflecting the understanding of someone who was a bystander to the transaction, so I have given it very little weight.
2. However, the 2008 affidavit of Mrs Hurst-Meyers is in a different category. It includes the following sworn evidence:
   1. I own the following property:
      • 7.1 Property at ...Crestwood, NSW, (Queanbeyan)...
      • 7.2 [Fisher property]. This property was purchased in my name in 1998 but beneficially belongs to my son Ralph. At my son's request I bought this property in my name but he provided the money. Ralph has lived in this property since it was purchased. The mortgage and other expenses relating to

this property are and have been paid for out of my accounts but Ralph has and continues to reimburse me these expenses. There is a mortgage of not more than $99,000 on this property.

...

1. The affidavit was sworn at a time when there was no suggestion that Mrs Hurst-Meyers was suffering from dementia. Notwithstanding that there was some evidence before the Court suggesting that Mrs Hurst-Meyers did not properly read the affidavit before she swore it, I consider that this is the best evidence of her state of mind and intentions with regard to the Fisher property.
2. I have inferred from that critical evidence that the words 'he provided the money' is a reference to the $45,000. Mrs Hurst-Meyers does not refer to the second defendant as jointly providing the funds. That is consistent with the plaintiff telling Mrs Hurst-Meyers that he wanted his mother to hold the Fisher property on trust for him. It is also perhaps a reflection of Mrs Hurst-Meyers not being privy to the detail of the finances between her son and the second defendant, and how the profits of their business were used.
3. While the belief or understanding of Mrs Hurst-Meyers is significant for the question of whether an express trust has been created, I have given greater weight to the evidence of the plaintiff and the second defendant that they jointly provided the moneys. After all, they are in the best position to know their own financial arrangements.
4. Drawing all those disparate strands of evidence together, I am actively persuaded that the balance of the purchase moneys in the sum of approximately $45,000 was provided jointly by the plaintiff and second defendant.

1. At the time the Fisher property was purchased, Mr Symons, solicitor at Clayton Utz was acting on the purchase. The plaintiff asserted that the solicitor drew up a written agreement recording the trust arrangement with his mother that 'we all signed'.
2. The plaintiff said Mrs Hurst-Meyers took a copy of the document away from the solicitor's office. He explained his inability to subsequently produce the document as being due to disposing of a couple of boxes full of papers years ago that were full of mould, having been stored in the garage. He now believes the document was in the boxes that were thrown out.
3. There was no document before the Court recording the arrangement and neither the second defendant nor Mrs Hurst-Meyers gives any evidence that such occurred. Further, when the second defendant gave evidence in a different forum, the transcript of which was before this Court, she made no reference at all to signing any document recording a trust of any kind.
4. The Public Trustee has been able to confirm that Mr Nick Symons was the solicitor acting on the purchase at Clayton Utz at the relevant time. However, Mr Symons retired from practice due to ill health and the file recording the purchase documents has since been destroyed.
5. Given that the document is not before the Court, and no other evidence establishes the contents of any document that used to exist, I do not accept that aspect of the plaintiff's evidence.

1. The bank statements in evidence indicate that over the years, the mortgage payments for the Fisher property were drawn from a bank account in the name of Mrs Hurst- Meyers.
2. The evidence of the plaintiff, the second defendant and Mrs Hurst-Meyers was all to the effect that the mortgage repayments were routinely reimbursed by the plaintiff and second defendant up to 2004, by the second defendant physically attending the bank with Mrs Hurst-Meyers' deposit book (which was in evidence) and depositing cash which she had withdrawn from her personal bank account.
3. The plaintiff deposes to paying his mother directly for the loan repayments in cash from 2005 until 2010 (after the second defendant had separated from the plaintiff).
4. In 2010, Mrs Hurst-Meyers paid out the mortgage, which appears to have been a sum of at least $86,000 and potentially $89,000. While there was some discrepancy in the evidence as to the precise figure, the material fact is that the majority of the mortgage was paid by Mrs Hurst-Meyers.
5. However, again, the evidence of Mr Michael Hurst-Meyers (the plaintiff's brother) was that their mother said at the time, 'I am going to give Ralph his home for the things he has done for me and pay out his mortgage.'
6. That is consistent with the plaintiff's evidence that his mother made the payment in part for all the assistance the plaintiff had given to his mother over the years with the management of assets and particularly with separate litigation against the estate of her former partner that resulted in Mrs Hurst-Meyers receiving a lump sum by way of settlement of $200,000.
7. Accordingly, although Mrs Hurst-Meyers used her own money to pay out a mortgage in her own name secured by the Fisher property which was also in her own name, I find that such a payment was intended to be a gift to the plaintiff.

1. The numerous invoices and receipts in evidence establish a history of the plaintiff and second-defendant (individually or through their business) paying to renovate the Fisher property, attending to repairs and treating the Fisher property as their own.

Payment of rates and insurance for the Fisher property

1. The rates notices and the insurance for the Fisher property are all in the name of Mrs Hurst-Meyers, although the plaintiff asserts that he and the second defendant reimbursed his mother.
2. Not a great deal turns on who paid the rates and insurance in these proceedings. In the event that the Court found the beneficial interest did not coincide with the legal title of

Mrs Hurst-Myers, there was no any alternative counter claim of an equitable interest to consider.

1. Mrs Hurst-Meyers signed a will on 7 December 2011, apparently before the onset of her dementia. The terms of the will are that the plaintiff is to receive the Fisher property on her death.
2. There are two ways to interpret this evidence. One is that Mrs Hurst-Meyers considered the legal and beneficial interest in the Fisher property to lie with her, so that it was her asset to dispose of when she died. The other is that Mrs Hurst-Meyers knew that she held the Fisher property on trust for the plaintiff and was ensuring that the plaintiff received the legal title to it upon her death.

1. Sifting through family dealings and arrangements made many years ago with a view to ascertaining the present legal consequences for a property asset is not a task easily done. I have ultimately concluded that an express trust has been created in favour of the plaintiff, with the following reasons chronologically tracing through how this conclusion has been reached.
2. When the Fisher property was purchased in 1998, Mrs Hurst-Meyers held the legal title, and the starting position is that she also held the beneficial interest.
3. The evidence then establishes that Mrs Hurst-Meyers did not intend to buy the Fisher property for herself as a property in which to live or from which to derive income. The driving force behind the purchase was the plaintiff and the second defendant.
4. While it is clear that the intention of Mrs Hurst-Meyers was to assist her son to achieve his goal of owning his own home, at the time of purchase, there was no express declaration in writing that the entire property be held on trust either for the plaintiff in his own right, or the plaintiff and the second defendant.
5. If that were the end of the evidence, s 51 of the Law Reform (Miscellaneous Provision) Act 1955 would have operated to prevent an enforceable express trust being created. There may have been cause to find that a presumption of a resulting trust was raised over part of the Fisher property, in favour of the plaintiff and the second defendant. The presumption may have arisen because the plaintiff and the second defendant paid

$45,000 of the purchase moneys, with the remaining $99,000 being attributed to Mrs Hurst-Meyers by reason of the fact that her name was on the mortgage and she was therefore the person legally responsible for the obligations under it.

1. The interests being determined at the time of the creation of the resulting trust, the beneficial interests would have reflected the monetary contributions made by the parties. The presumed resulting trust in October 1998 would have resulted in the plaintiff and second defendant holding a beneficial interest of 31%, equating to their contribution to the initial purchase price.
2. That the plaintiff and second defendant subsequently paid some of the mortgage repayments is irrelevant in the circumstances of this case and the issue under

consideration, as is any intention of either the plaintiff or Mrs Hurst-Meyers at the time the Fisher property was purchased that the plaintiff (and the second defendant as his then wife) would pay all of the mortgage repayments notwithstanding that the mortgage would be in his mother's name. Those facts are immaterial because the evidence did not establish that any resulting trust extended over the mortgage repayments as well so as to permit any beneficial interest to fluctuate according to who paid the mortgage.

1. No presumption of advancement would have applied, because the Fisher property was registered in the name of the parent. This was not a case where the son's name was registered on the title but the mortgage was in the mother's name or the funds provided by her.
2. However, resorting to any presumptions of a resulting trust may be put to one side because of what Mrs Hurst-Meyers subsequently did.
3. In 2008, Mrs Hurst-Meyers swore an affidavit in the terms set out in paragraph 80 above. In accordance with Kauter v Hilton, the words used establish that Mrs Hurst-Meyers had the requisite intention that the Fisher property be held, in its entirety, on trust for her son, the plaintiff. The subject matter of the trust is clear: it was the Fisher property alone. The beneficiary of the trust is also clear: it is the plaintiff alone. The certainty of intention to be bound is seen through the document being signed by Mrs Hurst-Meyers at a time when she had legal capacity to do so. On that basis, the will, which was signed after the affidavit, ought be interpreted as merely giving effect to that trust.
4. As the authorities above confirm, the form the writing takes does not matter; so the fact that the writing was in an affidavit does not deprive the writing from being sufficient compliance with s 201 of the Act. Similarly, the timing of the writing in 2008 when the Fisher property was purchased in 1998 does not affect the valid creation of the trust. On the authorities above, the express trust in favour of the plaintiff is enforceable, operating from the date the Fisher property was purchased.
5. Such evidence rebuts any presumed resulting trust over part of the Fisher property in favour of the plaintiff and the second defendant.

1. The state of the evidence leaves the second defendant in the same position that has caused her much frustration over the years.
2. However, the plaintiff has confirmed in open Court and in her presence that he has always considered his interest in the property to be jointly held with his former wife. A beneficiary who is sui juris and entitled to the property may cause a new trust to be created directly, by a direction to a trustee that the property from then on be held on trust (in part, in this case) for another: Comptroller of Stamps (Vic) v Howard-Smith [1936] HCA 12; (1936) 54 CLR 614 at 622-623; Commissioner of State Revenue v Lam & Kym Pty Ltd [2004] VSCA 204; 10 VR 420 at [31]- [33].
3. Those statements made by the plaintiff are not in writing and at their highest constitute an agreement to create a trust over half his beneficial interest in the Fisher property in favour of the second defendant.
4. The second defendant was self-represented and has not made any submissions separate to those of the plaintiff. She has not sought any alternative relief, such as specific performance of the agreement by the plaintiff to ensure that she receives a beneficial interest in the Fisher property, or other relief such as a constructive trust over part of the Fisher property.
5. On the evidence before the Court, the second defendant is plainly not a volunteer. The second defendant provided part of the purchase moneys, contributed to the mortgage repayments for the Fisher property over the years and appears to have lived her life, including arranging her financial affairs, on the basis that she had an equal beneficial interest in the Fisher property.
6. In those circumstances, and given the plaintiff has consented to the second defendant jointly holding whatever interest he was found to have, the parties ought be given the opportunity to propose orders giving effect to the second defendant's interest in light of these reasons.

1. Declaratory relief over the Fisher property will be granted, giving effect to the terms of the express trust created by Mrs Hurst-Meyers, with the plaintiff holding the sole beneficial interest.
2. No costs orders are sought by any party.
3. I direct the parties to forward to my associate proposed short minutes of order giving effect to these reasons, within 7 days.

I certify that the preceding one hundred and twenty-two [122] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.

Associate:

Date: 21 March 2018

21 March 2018 Replace "the defendant" with "the first defendant": [2]

21 March 2018 Replace "trust was created" with "trust was purportedly created": [7]

21 March 2018 Replace "plaintiff and his" with "plaintiff and (with his consent) his": [10]

21 March 2018 Insert "(Shepherd)" after the citation "Shepherd v Doolan [2005] NSWSC 42": [51]

21 March 2018 Replace "Charmayne Hurst-Meyers, one of his sisters" with "Ms Charmayne Hurst-Meyers, one of the plaintiff's sisters": [55]

21 March 2018 Replace "findigns" with "findings": [58]

21 March 2018 Replace "express" with "express trust": [83]

21 March 2018 Replace "agains" with "against": [95]

21 March 2018 Replace "Ralph" with "the plaintiff": [96]