DECISION
40 I would first note, before dealing with the issues that have been argued, that this case was never put on the basis that the subjective intention of Mr. Yazbek was irrelevant because the document took effect as a deed: it would seem that if it had taken effect as a deed, Mr. Yazbek would be conclusively bound by what he stated in the deed that he was effecting, undertaking or permitting (see Halsbury's Laws of England (4th Ed.) Vol.12 [1353]). The document was executed as a deed, but it would not take effect as a deed unless delivered. For a deed to be delivered, the party whose deed the document is expressed to be must, by words or conduct, expressly or impliedly, acknowledge his intention to be immediately and unconditionally bound by the provisions contained in it (Halsbury's Laws of England (4th Ed.) Vol.12 [1329]). The words "signed, sealed and delivered" on the document is evidence of delivery, but not conclusive evidence.
41 Accordingly, if the appellants had relied on this document as a deed, this would have squarely raised the question of whether or not the deed had been delivered, and if so, whether or not it had been delivered in escrow (see Halsbury's Laws of England (4th Ed.) Vol.12 [1333]-[1334]). These questions involve very similar questions of fact to the questions which were disputed, namely whether it was shown that Mr. Yazbek had an intention to create a trust there and then. There is every reason to think that the same result would be reached.
42 In order to create a trust of shares, no writing is necessary: s.23C of the Conveyancing Act 1919 relevantly applies only to real property or to disposition of an existing equitable interest. What would be necessary in this case is an express declaration of trust, intended to be final and binding on the trustee.
43 I accept the statement of the position made by Bray CJ in Lamshed at 239:
It is clear law that despite the unambiguous words of the declaration the trust apparently created by them can be rebutted by evidence of a contrary intention (Commissioner of Stamp Duties (Qld) v. Jolliffe (1920) 28 CLR 178). But the onus is on those who seek to prove such an intention and strong evidence is required for the purpose (In Re Steele [1925] SASR 272). Many cases were cited to me where this had been done successfully. In some of these cases the depositor was alive and gave evidence of his own intention and was believed (Jolliffe's case; Starr v. Starr [1935] SASR 263). In other cases when the depositor was deceased there was evidence of specific declarations made by him during his life time (Winter v. Grady (1921) SR(NSW) 686 at 691), though sometimes these related to the interest only and the trust stood as to the principal (Kauter v. Hilton (1953) 90 CLR 86; Re Armstrong (Deceased) [1960] VR 202 at 206). And in some cases the trust was held to be rebutted after the death of the depositor by evidence entirely or largely circumstantial (In Re Appleby's Estate (1930) 25 TasLR 126; Re McGuire, Deceased (1937) 41 WALR 120; Teasdale v. Webb (1940) 57 WN(NSW) 151; Abbot v. Miles (unreported, Supreme Court of South Australia, Napier, CJ, 12 May 1952); Jeffrey v. Miles (unreported, Supreme Court of South Australia, Mayo J, 10 December 1952).
44 That quotation related particularly to declarations of trust concerning a bank account, but in general terms it applies to declarations of trust generally. It is consistent with the later High Court decision of Associated Alloys Pty. Limited v. ACN 001 452 106 Pty. Limited (2000) 202 CLR 588. I note also that the Privy Council decision in T. Choithram International SA v. Pagarani [2000] 1 WLR 1 depended on a finding by the Privy Council that the donor in that case had an intention to make an immediate and absolute gift.
45 I accept that the signing of the declaration, and having it witnessed, is some evidence of the required intention, and that there was an onus on Mr. Leroy to rebut that intention. However, this onus on Mr. Leroy was an evidentiary onus, and the ultimate onus remained on the appellants to prove the creation of a trust. The existence of this ultimate onus had some significance in this case, where there was substantial evidence tending to rebut an intention to create a trust.
46 The substantial evidence against an intention to create a trust in this case was the passage of over five years, when (with small exceptions) all documents that were created by Mr. Yazbek, and/or Mr. Alexandrou or Mr. White on Mr. Yazbek's instructions, relating to the Trust and Aldora, were inconsistent with the existence of a trust, and consistent only with beneficial ownership of the shares by Mr. Yazbek.
47 The first document created after 14 March 1997 was apparently the Trust income tax return for the year ended 30 June 1997, which plainly showed the assets of the Trust as not including any interest in the Aldora shares. The same applied to the income tax returns for the years ending 30 June 1998 and 30 June 1999. The income tax return for the year ended 14 March 1997 was also strong evidence that the recital in the document of 14 March 1997 to the effect that the shares had been paid for by the Trust was false: there is a plain inference from the Aldora documents that $1,000.00 had been paid for the shares, and no such amount, or anything like it, had been subscribed to or lent to the Trust in the year ending 30 June 1997.
48 I have also referred to assertions in the annual returns of Aldora, up to the return lodged in July 2002, declared to be true by Mr. Yazbek, that his 1,000 shares in Aldora were owned beneficially.
49 As late as 6 June 2002, Mr. Yazbek declared to be true that he had owned 1,000 shares in Aldora, and had sold them to Leila Yazbek on 23 May 2002 for $1,000.00.
50 Against that background, in my opinion the indications relied on by Mr. Powell that the shares were held on trust were trivial. The cheques paid by Hyhonie for the Doncaster development could equally have been loans, and in fact loans from Hyhonie to Aldora approximating the amounts of these cheques were recorded. The existence of just one minute recording Mr. Yazbek as attending one meeting as a representative of Hyhonie was in my opinion de minimis. The 2000 and 2001 accounts of the Trust were not prepared until just before Mr. Yazbek's bankruptcy. The instructions given to stamp the document in February 2001 were given in off-hand terms, and led to nothing until May 2002.
51 In my opinion, the evidence tending to rebut the existence of an intention to create a trust was strong evidence. Mr. Yazbek gave evidence in the case for the appellants, and in the face of the strong evidence tending to rebut an intention to create a trust, one would have expected Mr. Yazbek to give direct evidence of his intention and of the circumstances of the creation of the trust and an explanation of its non-implementation, if any of this evidence would have assisted the appellants' case. Similarly, Mr. Alexandrou gave evidence for the appellants, and if evidence from him concerning the circumstances and the non-implementation would have assisted the appellants' case, one would have expected that evidence to have been given.
52 The fact that this evidence was not given by Mr. Yazbek or Mr. Alexandrou means that the primary judge's non-satisfaction of the existence of an intention to create a trust then and there does not depend on credit findings, so the appellants do not face the difficulty discussed in Abalos v. Australian Postal Commission (1990) 171 CLR 167. However, it also means that it was and is open to the Court to draw the inference that direct evidence of Mr. Yazbek's intention and of the circumstances of signing would not have assisted the appellants: see Commercial Union Assurance Co. of Australia Limited v. Ferrcom Pty. Limited (1991) 22 NSWLR 389 at 418-9.
53 The primary judge apparently did not rely on that inference; but it is a line of reasoning that gives further support to the primary judge's rejection of the appellants' submission based on Browne v. Dunn.
54 In my opinion, the appellants cannot rely on Browne v. Dunn in this respect. Mr. Leroy accepted that the document had been signed and witnessed on the day, as stated in evidence by Mr. Yazbek and Mr. Alexandrou; but by tendering the material I have referred to, he plainly put in issue whether Mr. Yazbek had the intention then and there to create an immediate and absolute trust of these shares. Where Mr. Yazbek led no direct evidence as to what his intention was, and where neither Mr. Yazbek nor Mr. Alexandrou led evidence of the circumstances of the signing or of any explanation for the non-implementation, there was no need for Mr. Leroy to cross-examine such evidence into existence.
55 Turning to Mr. Powell's particular submissions, there was in my opinion no need for the primary judge to find a sham. The expression "sham" suggests some kind of pretence being put up. Here, there is just a document signed and witnessed and then simply left with other papers, not acted on, and never shown to anyone else. In my opinion, those circumstances strongly suggest a lack of intention to give effect to the document, in a way that does not merit the description "sham".
56 As for the onus on Mr. Leroy referred to in Lamshed, in my opinion Mr. Leroy's evidentiary onus was plainly discharged. In my opinion, the primary judge was not in error in so far as he found that the ultimate onus on the appellants to show an intention to create a trust was not discharged.
57 Turning to Mr. Powell's submissions concerning evidence in support of the existence of the requisite intention, my opinion is, as discussed above, that the objective evidence against the existence of the relevant intention vastly outweighed the objective evidence tending to support its existence. Because of the relatively trivial nature of the evidence supporting an intention to create a trust, the reasons given by the primary judge in relation to that matter were in my opinion adequate.
58 As regards the words "All good fun", I accept that the inference drawn by the primary judge was questionable, and also that it should not have been drawn when the matter was not squarely put to Mr. White. However, the error involved in this matter is very minor, and does not in my opinion vitiate the reasoning of the primary judge.
59 Finally, I have already adequately dealt with the Browne v. Dunn submission.
60 For those reasons, in my opinion there was no error in the primary judge's view that the appellants had not established that there was, at the time of the signing of the document of 14 March 1997, or at any relevant time thereafter, an intention to create a trust. I would for myself have come to the same decision, particularly having regard to the principles stated in Ferrcom. There is no need to consider the question of revocability, the question of whether the appellants would be required to do equity, or issues raised by the Notice of Contention.