Koprivnjak v Koprivnjak

Factual background

1. John is the sole director and shareholder of Titles Strata Management Pty Ltd, which operates a strata management business. Family members have worked in the business from time to time. Natalie worked in the business from when she left school until some time in 2018.
2. John's case is that he and his former wife, Lena, decided to purchase an investment property and holiday home and to put that property in Natalie's name. She is their eldest daughter, and at the time was 19 years old. John's evidence was that he considered this would help her "start getting a good credit history".
3. Natalie was named as purchaser on the Contract for the Sale of Land and became the registered proprietor of the property. There is no dispute that John assisted Natalie with many aspects of the purchase, including: 1. Finding the property and negotiating the purchase price of $300,000. 2. Providing $15,000 to the real estate agent on Natalie's behalf for the required 5% deposit, being first, a $750 deposit on 11 October 2011 and secondly, $14,250 on 20 October 2011. 3. Providing a further $60,000 to Natalie for her to use for the purchase of the property. 4. Introducing Natalie to solicitor, Mark Marando, for the conveyancing, and then liaising with Mr Marando during the process. 5. Liaising with a mortgage broker and then the National Australia Bank in relation to the $240,000 loan Natalie took out to fund the purchase. While John's affidavit evidence was that the loan was for $192,000, in cross-examination he accepted it was for $240,000, which is consistent with Natalie's evidence, even though there were no primary loan documents in evidence.
4. It also is not in dispute that: 1. John organised renovation of the property, which was carried out by his friends for free or at "mates' rates", and in relation to which there were limited invoices or receipts in evidence. 2. In November 2011, the parties signed a "mortgage" referencing an advance of $75,000 to Natalie, which is dealt with further below.
5. John denied knowing whether Natalie received the first home owners grant and a stamp duty exemption of $8,990, however, he accepted that the stamp duty was paid and that he did not pay it. While it is not of significance, I find that John did know about Natalie's successful application for the first home owners grant and stamp duty exemption, based on his evasive demeanour and the inherent improbability that he would not have known.
6. In December 2012, both parties were named on a management agreement with Winning Holidays for the rental of the property. Natalie says she handled all enquiries and tended to all matters required by the agent. However, Lena and John say that they set up the login details and had access to the online rental portal until Natalie removed them from it, which I find is the more likely situation.
7. In her affidavit, Natalie says she used rental income towards the rates, maintenance and expenses for the property. This included the electricity charges, the upkeep of the property and mowing the lawn, the costs for cleaners, and pest inspections. However, in fact, both parties accepted that the rental income was deposited directly into the mortgage account.
8. The parties' family and friends regularly used the property, but did not pay rent. Lena lived there for about 12 months and did not pay rent. Others also used the property without paying rent, including Colin Simons (a friend of John's person overseeing the renovations), who lived at the property while the renovations were being carried out.
9. Between May 2012 and May 2017, Titles Strata Management made regular monthly payments of $1,400 to Natalie's personal bank account, from which mortgage repayments and expenses were deducted. Natalie also used the same account for some personal transactions.

Resulting trust, presumption of advancement and constructive trust

1. Natalie relied on the decision of Ward CJ in Eq (as her Honour then was) in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [161]-[168] (appeal dismissed [2019] NSWCA 20) for an outline of the relevant law, and John did not suggest the principles are incorrectly stated: [161] The relevant presumption was formulated (at 266-267) in Calverley by Deane J in the following terms (see also Gibbs CJ at 246-247 and Mason and Brennan JJ at 258): … where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it. [162] The theoretical basis of resulting trusts and the possibility or desirability of identifying clear-cut categories of resulting trust (and even the reason for the appellation "resulting") have been the subject of judicial and academic debate (Kerr v Baranow [2011] 1 SCR 269; [2011] SCC 10 at [16]; noted by Edelman J, sitting as his Honour then was in the Supreme Court of Western Australia, in Anderson v McPherson [No 2] [2012] WASC 19 at [89]; [90]-[93]; see generally, PW Young, C Croft and ML Smith, On Equity (Lawbook Co, 2009) at [6.930]). Fortunately, or otherwise, it is not necessary to enter into such debates. Suffice it to note that the presumption of resulting trust involves a "legal presumption" (see Jacobs' Law of Trusts at [12-10]; W Swadling, "Explaining Resulting Trusts" (2008) 124 Law Quarterly Review 72), namely the presumption of a declaration of trust (in Anderson v McPherson, Edelman J referred to the rebuttable presumption as being "of the fact of a manifest declaration" (at [106]; see also, Jacobs' Law of Trusts (at [12-10])). [163] The presumption of a resulting trust is thus a presumption as to a declaration of trust, premised on a presumed intention to create an equitable (beneficial) interest in the acquired property in someone other than, or in addition to, the person in whom legal title is vested. Once the primary fact giving rise to the presumption is established (for example, that one or more persons has or have provided part or all of the purchase price but the legal title has been vested in another), the burden falls on the party disputing the existence of a resulting trust (here, Rajil) to rebut the presumed fact on the balance of probabilities (see Ryan v Ryan [2012] NSWSC 636 at [57]; Weige v Cupton Pty Ltd (2012) 8 ASTLR 229; [2012] NSWCA 414 at [46]; Jacobs' Law of Trusts at [12-10]). Where that party fails to rebut the presumption, the court "upon consideration of all circumstances presumes there was a declaration [of trust] though the plain and direct proof thereof be not extant" (Cook v Fountain (1672) 3 Swan 585 at 591; 36 ER 984 at 987 (Lord Nottingham LC)). [164] So understood, the presumption of resulting trust is thus the "starting point of a factual enquiry" about the intention of the party (or parties) who provided the funds for the purchase in question (Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22,421; [2002] NSWSC 1060 at [136]; Dyer v Dyer (1788) 2 Cox Eq Cas 92; (1788) 30 ER 42 at 43; Fowkes v Pascoe (1875) LR 10 Ch App 343 at 352; Re Kerrigan; Ex parte Jones (1946) 47 SR (NSW) 76 at 83), the presumption operating "to place the burden of proof [on the party disputing the trust], if there be a paucity of evidence bearing upon such a relevant matter as the intention of the party who provided the funds for the purchase" (Nelson v Nelson (1995) 184 CLR 538 at 547; [1995] HCA 25(Deane and Gummow JJ)). [165] The search for the intention of the relevant party (or parties) intention is as to proof of a "definite" not "nebulous" intention (Weige v Cupton Pty Ltd [2012] NSWCA 414 at [46]; referring to Drever v Drever [1936] ALR 446 at 450 (Dixon J)); the "objective, or manifest, intention ... it is not a subjective, uncommunicated intention but it is to be inferred from what the parties do or say" (Anderson v McPherson (No 2) [2012] WASC 19 at [156] (Edelman J, citing Calverley at 261 (Mason and Brennan JJ))). The relevant intention is to be found as at the date of purchase (or immediately thereafter) (Calverley at 251(Gibbs CJ); and at 262(Mason and Brennan JJ)), although evidence of later acts and declarations are admissible (as admissions against interest) against the party who made them (Black Uhlans at [138] (Campbell J, as his Honour then was)). [166] Establishing on the balance of probabilities that a contribution of the requisite character has been made is a "factual precondition" to a successful assertion that there is a presumption of resulting trust (Hamed v Elddin [2016] NSWCA 9 at [23] (Meagher JA and Gleeson JJA, Sackville AJA) Elddin v Hamed (No 2) [2015] NSWSC 654 at [83] (Button J); see also, Ong v Lottwo Pty Ltd (in Liq) [2013] SASCFC 57 at [40] (Nicholson J, with whom Kourakis CJ and Stanley J agreed)). It is essential that the alleged contribution bears the character of purchase moneys (Calverley at 246 (Gibbs CJ); see also, Ong v Lottwo at [28]-[30]). [167] In identifying the purchase price, a "broader concept" is to be applied than simply the stipulated consideration for the purchase (Black Uhlans at [144]; Campbell J). Regard may be had to the incidental costs of the purchase, such as legal expenses, stamp duty and registration (Murtagh v Murtagh [2013] NSWSC 926 at [81] (Hallen J); Ryan v Ryan at [46]; Martech Energy Systems Pty Ltd (in liq) v Bell [2005] VSC 198 at [8] (Hollingworth J); Shepherd v Doolan [2005] NSWSC 42 at [24] (White J, as his Honour then was); Black Uhlans at [144] (Campbell J); Ryan v Dries (2002) 10 BPR 19,497; [2002] NSWCA 3 at [52]-[53] (Sheller JA); Currie v Hamilton [1984] 1 NSWLR 687 at 691 (McLelland J, as his Honour then was). What is significant "is the cost to the purchasers rather than the benefit to the vendor" (Currie v Hamilton at 691). [168] Incurring liability under a mortgage will amount to a contribution to the purchase price: "parties borrowing jointly in order to make up the acquisition cost are treated as having contributed the borrowed capital in equal shares" (Buffrey v Buffrey (2006) 12 BPR 23,619; [2006] NSWSC 1349 at [14] (Palmer J); Calverley). What is more problematic is the relevance, for the purposes of the resulting trust presumption, of mortgage repayments in the absence of a liability under the mortgage. It has been said that such payments are made towards securing a release of a charge over the property rather than as contributions to the purchase price (Calverley at 252 (Gibbs CJ); at 257 (Mason and Brennan JJ)).
2. Further, "[f]or the presumption of resulting trust to apply, the purchase price must have been provided by the purchaser in the capacity as purchaser and not, for example, by way of loan": Martech Energy Systems Pty Ltd (in liq) v Bell [2005] VSC 198 at [7] (Hollingworth J).
3. Recently in Commissioner of Taxation v Bosanac (No 7) [2021] FCAFC 158, the Full Federal Court considered presumptions that may arise in the context of two parties purchasing a property, which is placed in the name of one only. I note that this decision is subject to an appeal in the High Court, but has not yet been heard.
4. In Bosanac, the Full Federal Court (Greenwood, Burley and Colvin JJ) explained the presumption of a resulting trust and the presumption of advancement: "The first presumption concerns resulting or presumptive trusts. Relevantly, a declaration of trust may be presumed where two parties contribute to the purchase price of property, but legal title to the property is put only in the name of one of them. Equity presumes there was a declaration of trust because it presumes it was intended that the person holding legal title would do so for both contributors (or that the purchaser did not intend to gift his or her contribution to the other person). The second is the presumption of advancement. Where it applies, the presumption of advancement operates to prevent a resulting trust from arising because the relationship between the relevant parties provides a reason against presuming a trust. The presumption operates on the hypothesis that, because a certain relationship exists between two parties, a benefit provided by one party to the other at the cost of the first was intended to be provided by way of "advancement"; absent evidence to the contrary, the relationship supplies a reason for why a gift was intended."
5. The Full Court also explained that determining intention is essentially a factual question: "This question is determined by reference to the facts, including inferences appropriately drawn from the facts, and - if they are applicable and not rebutted - certain presumptions of equity. The facts are either established by direct evidence or they may be inferred from facts directly proved when those proved facts make it reasonably probable that the inferred fact exists: Carr v Baker (1936) 36 SR (NSW) 301 at 306 (Jordan CJ). Presumptions, unless "rebutted" by evidence, operate such that proof of one fact results in a second fact being presumed to exist. The presumption of the existence of a fact in this way is said to be available because it gives effect to common experience: Actors & Announcers Equity Association of Australia v Fontana Films Proprietary Limited (1982) 150 CLR 169 at 213-215 (Murphy J); Nelson v Nelson (1995) 184 CLR 538 at 601-3 (McHugh J); Calverley v Green (1984) 155 CLR 242 at 264 (Murphy J). A presumption differs from an inference in that an inference is something which may be drawn from facts directly proved, whereas a presumption (unless rebutted) operates automatically once a certain fact is proved."
6. As to the evidence available to the Court in determining whether there is a resulting trust, Gibbs CJ stated in Muschinski v Dodds (1985) 160 CLR 583 at 590; [1985] HCA 78: "Where both transferees have contributed to the purchase money, the intentions of both are material, but where only one has provided the money it is his or her intention alone that has to be ascertained. The evidence is admissible to establish the intention of the real purchaser will comprise '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 (1956) 95 CLR 353 at 365); in addition, the purchaser may testify as to the intention which he or she had at the relevant time: Martin v Martin (1959) 110 CLR 297 at 304-5. Subsequent declarations will be admissible as evidence only against the party who made them and not in his or her favour: Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353 at 365."
7. Counsel for John submitted that the only relevant time for consideration of intention for the purposes of a resulting trust was the time of exchange. I do not accept that is correct. Instead, it is necessary to take a broader view and consider the intention of the relevant persons around the time of completion when all the purchase money had been provided: see Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6 at [67] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (Cummins); Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22,421; [2002] NSWSC 1060 at [138] (Campbell J).
8. Later admissions and subsequent dealings are admissible on the question of intention. I note that Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Cummins stated at [65]: "while evidence of subsequent statements of intention, not being admissions against interest, are inadmissible, evidence of facts as to subsequent dealings and of surrounding circumstances of the transaction may be received." Such later conduct, including, for example, identifying and negotiating the purchase and renovating the property, may be relevant to whether the presumption of a resulting trust or presumption of advancement has been rebutted: DKL v LYK [2019] SASC 100 at [396] (Doyle J).
9. Although not developed in any detailed way, John also submitted there was a common intention constructive trust as a result of the common understanding between him and Natalie, and his contributions to the mortgage and property maintenance (beyond the resulting trust). In Bassett v Cameron [2021] NSWSC 207, Ward CJ in Eq (as her Honour then was) provided a concise summary of the common intention constructive trust and the scope of the inquiry: "[563] The so-called common intention constructive trust, arises in the circumstances described by White J (as his Honour then was) in Shepherd v Doolan [2005] NSWSC 42 (Shepherd v Doolan) at [31], namely where equity intervenes "to prevent the unconscientious denial by the legal owner of another party's rights 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". [564] It is not necessary for a common intention constructive trust that the common intention is 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" (Shepherd v Doolan at [36]). A less stringent test to the question of detriment has been said to apply once the common intention has been established - see Shepherd v Doolan at [40], where his Honour noted that, in Green v Green (1989) 17 NSWLR 343 at 357 Gleeson CJ (with whom Priestley JA agreed) approved the test appearing in the judgment of Sir Nicolas Browne-Wilkinson VC in Grant v Edwards [1986] Ch 638 at 657 that: … [O]nce 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. Theacts 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. [citations omitted] [565] Moreover, a common intention constructive trust may arise after the acquisition of the property in question if the evidence establishes that the relevant common intention was formed at some later time. The nature of the common intention may also change from time to time but that change will not be established merely from proof of proportionate changes in the contributions made by the parties."

What money did John contribute to the purchase price?

1. John asserts an entitlement to a resulting trust for the $75,000 that he contributed to the purchase price. However, he also claims that he contributed the whole of the purchase price and mortgage payments and expenses to the property for his argument based on a constructive trust.
2. Significantly, the only money that John paid directly to the vendor for the purchase (and/or mortgage) was $15,000, by way of two transfers from his company to the vendor's real estate agent. The rest of the purchase price was paid out of the following sources: 1. the $60,000 John placed in Natalie's bank account; and 2. the NAB loan, for which Natalie was solely legally responsible.
3. Because John did not make any payments directly to the mortgage account, he argued that, by causing his company to make regular payments of $1,400 into Natalie's personal bank account, he contributed to the mortgage. Natalie accepts that she used that money to make mortgage repayments and for other property expenses.
4. Merely on John's direct contribution of $15,000 to the vendor, this dispute might be seen to concern whether there is a resulting trust in relation to that sum. However, the claim is brought more broadly, and the below reasons address whether there can be any resulting trust or constructive trust about any sums or interests in the property.

John's case

1. John was a generally unimpressive witness. He was argumentative and took a long time to answer relatively simple questions. He included unnecessary critical jibes about his daughter and tried to blame others for issues with the evidence, such as the redaction of bank statements, as outlined further below. There were parts of his affidavit evidence that were obviously not accurate, as outlined below.
2. John's counsel accepted that while John's evidence of his subjective state of mind at the relevant time was admissible, it would be less persuasive than objective evidence. Further, where there is an inconsistency between John's evidence and Natalie's evidence or objective evidence I prefer Natalie's evidence and the objective evidence.
3. There are different versions of a conversation between John and Natalie prior to the exchange of contracts on the property.
4. First, John's affidavit evidence was that, prior to the exchange of contracts, he had a conversation with Natalie in the presence of Lena as follows: John: "You're over 18 now and it would be good to get a loan so you can start getting a good credit history." Natalie: "Sure." John: "Your mother and I have found a holiday home, we will put it in your name I will cover all the payments so you don't have to pay anything." Natalie: "Ok." John: "It needs a lot of renovation, but I will arrange it all."
5. John relies on Lena's evidence to support his version of the conversation. Her evidence was that she and John had discussed purchasing an investment holiday home and that they found and liked the property. John told Lena that he would renovate it. Further, she says that John said to Natalie in her presence: "You are an adult and you should get your foot in the door in the property market. We will also rent it out when it is not being used. Don't worry I will pay for everything. The family woud [sic] have a holiday home."
6. However, Lena accepted in cross-examination that she was not present for this conversation and instead John had told her about it. I accept her oral evidence and it does not assist John.
7. John also relies on the evidence of Mark Marando, the solicitor who carried out the conveyancing on the property in 2011, which was then registered in Natalie's name. He had acted for John on other matters.
8. In his affidavit, Mr Marando says he had a conversation with John: John: "Natalie is my eldest daughter. I am going to purchase the property in her name. She is aware of that. I will be paying for everything including the mortgage. … Natalie is the eldest. She doesn't have money to buy a house. It would be a good start for her. Also I am doing it as a form of asset protection as there are always claims being made in the strata business." Mark: "It seems to me that there is some sort of a trust. You can formalise these arrangements in a trust deed. This will protect ou [sic] in the event that your daughter later does not acknowledge that the property belongs to you." John: "It should be fine. There's no need for any extra paperwork at the moment. I will organise something later."
9. Mr Marando also says that he had a conversation with Natalie in which he said to her: "You are going to be listed as the purchaser on the contract and loan. So it will be in your name, but your father has said that you are holding it for him on his behalf". Natalie denied this conversation occurred.
10. Mr Marando accepted in cross-examination that he was acting for Natalie and not John on the purchase and that he had no detailed file notes of any conversations. He did not have any clear recollection of providing Natalie with any advice concerning the purchase.
11. In cross-examination, Mr Marando said that he was aware of the mortgage document that had been signed by Natalie and John and that he understood that document was intended to record the arrangement between them, however, he was not shown that document at any time by John.
12. Even accepting Mr Marando's evidence about his conversation with John concerning a trust deed, John ultimately created a mortgage document rather than a trust deed, as detailed below. Further, even accepting he made some statement to Natalie, it did not clearly explain the nature of the trust and the basis of his statement other than perhaps something John had told him and any understanding by Natalie of the existence of a trust. It might have been expected that Mr Marando would have given his client clear advice if she was becoming a trustee. In any event, Mr Marando's evidence does not clearly demonstrate the position of the parties at or around the time of the completion of the purchase.
13. John's case is that his advance of $75,000 to Natalie to assist with the purchase and the regular payments into her bank account, from which mortgage payments and other expenses were paid, amounted to payments towards the purchase price and mortgage. It is further said that this conduct demonstrated that John was intended to be the true or beneficial owner of the property. However, without more, John's actions together are equally consistent with Natalie's case that John loaned her $75,000 and then provided further financial assistance with the property as he had promised.
14. In relation to the true intention concerning the purchase price and mortgage payments, Lena's evidence does not assist John. In her affidavit, Lena stated that she only had an "understanding" that John paid the deposit and the mortgage payments, but she does not state how she came to have this understanding. In cross-examination she accepted that she based her understanding on what John had told her. She also did not know that Natalie had a mortgage with NAB. As Lena had an incomplete understanding of the arrangement between John and Natalie, her evidence does not help John, except as to suggest that he was giving his wife the impression, in a vague way, that he was paying for the property. I do not consider that I can place any real weight on Lena's affidavit evidence.
15. Further, there is no documentary record of an express trust and there is no affidavit evidence of any conversation in which John told Natalie she would be holding the property on trust for him.
16. In cross-examination, John stated that he had said to Natalie: "It might be a good idea if we put the property in your name so we can get you a good credit rating, and we'll get - we'll get you a loan and we'll pay it all off. I'll - I'll pay for everything. You can hold it in trust for us." However, Natalie was not challenged on her evidence that John never told her she would be holding the property on trust. I find that such a conversation, as suggested by John about a trust, never occurred.
17. However, it is well-settled that a particular form of words is not necessary and the court is to draw an inference from all the circumstances: Re Kayford Ltd (in liq) [1975] 1 WLR 279 at 282 (Megarry J); Walsh Bay Developments Pty Ltd v Federal Commissioner of Taxation (1995) 130 ALR 415 at 422 (Beaumont and Sackville JJ, Jenkinson J agreeing). However, as du Parcq LJ noted in Re Schebsman; Ex parte The Official Receiver, The Trustee v Cargo Superintendents (London) Limited and Schebsman [1944] Ch 83 at 104 (approved in Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 628 (Mason CJ and Dawson J)): "unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the Court ought not to be astute to discover indications of such an intention."

Natalie's case

1. The second version of the main conversation is Natalie's. Her affidavit evidence was that, prior to the date of purchase, she had a conversation with John, in which John said: "Natalie, I have found a holiday house at Shoal Bay. We can put in your name. You can get the first home buyers grant which will help with the deposit and I will help you get a loan. It can be rented out on weekends and holidays to pay the mortgage and when it is not being used the family can use it. Don't worry I'll organise everything. It will be a good start for you."
2. At times in cross-examination Natalie was argumentative or unnecessarily defensive, for example in maintaining a position that was demonstrably incorrect, such as refusing to accept that there was a simple typographical error in her affidavit.
3. Despite that, overall she appeared to be honest in her answers. Natalie did not dispute that the purchase of the property was John's idea and that he promised to help her with whatever was needed with the property. She accepted that he assisted with a loan to her of $75,000, and otherwise.
4. I do not consider there is any substantial difference between John and Natalie's recollections of the same conversation prior to the purchase of the property. Based on their affidavit evidence and evidence given in cross-examination, it was common ground that: 1. John wanted to help Natalie with her "credit history" and considered that it was a good idea for Natalie to be the purchaser of a property. 2. They both expected that rental from the property would assist with the mortgage payments, if not completely cover them. 3. When the family and their friends used the property, they would not pay rent. 4. John intended making monetary contributions and carrying out renovations he considered appropriate without Natalie's assistance. 5. John intended to help Natalie financially, including with obtaining a loan from a bank. 6. Any money Natalie obtained from the first home owners grant and stamp duty exemption would be paid towards the house costs and mortgage.
5. It is necessary to have regard to further evidence to determine whether John is able to demonstrate to the necessary standard the existence of a trust that rebuts the presumption of advancement and the fact that Natalie is the registered proprietor.

Documents

1. Both John and Natalie rely on various documents to establish their positions.

John's case

1. John relies on text messages sent to him by Natalie some 5-6 years after the purchase of the property, to demonstrate that Natalie's understanding from the outset was that she was holding the property on trust for him and that she has admitted as such. As noted above, only admissions and subsequent conduct can be relied upon to advance a party's position in this regard. Therefore, messages sent by John asserting ownership of the property cannot assist him and I do not rely on those in reaching my conclusions. The text messages are dealt with individually below.
2. On 6 December 2016, Natalie sent messages to John as follows: "I understand. But this is out of my budget. I have no budget and Matt [her boyfriend] is not putting money in. You said you would give me money for helping out with the house. However much that is will be the car I can afford." "… I helped you with that house and it has done nothing but cause me problems and waste my time." "You said you would give me money for helping out with the house…"
3. These messages do not identify any of (a) what is being responded to, (b) what "house" is being discussed and (c) what "help" was involved. In cross-examination, Natalie was not sure, but considered the message might have been a reference to her assistance with her property and her "help" in allowing John and the family and friends to stay there rent free. I do not consider this ambiguous message, without all the surrounding context, amounts to an admission by Natalie that she understood she held the property on trust for John.
4. On an unknown date, Natalie sent the following text message to John: Natalie: "You bullied your 18yr old daughter to have her name on a house and mortgage so you could avoid tax. Then you constantly threaten and abuse her and try to bully everyone into doing what you want then when you don't get your way you stop paying the intested [sic] on a house you bought in someone elses name without their full consent now you are threatening me again because I told you this property effects me negatively and it is in my best interests to take full control and give you no access. I have also given you options in order to have full financial control over the property but you don't want to take that option. I am not causing trouble I am looking after myself and my interests. You have caused me enough hardship emotionally and physically in life."
5. In this text message Natalie does assert: 1. John bullied her to have her name on a house and mortgage; 2. John stopped paying interest "on a house you bought in someone elses name without their full consent"; and 3. It was in her best interests to "take full control".
6. I do not consider this message amounts to an admission by Natalie that she knew that she held the property on trust for John for the following reasons: 1. There is no evidence about the assertions that John was making in the message he sent to her that led Natalie to respond in the terms that she did, which appears quite emotional. 2. Natalie gave general evidence that John bullied her and often sent her "harassing texts". However, there is no evidence detailing bullying occurring at the unknown date of the text message. Natalie denied she was bullied into purchasing the property in 2011 and was not challenged on that evidence in cross-examination. 3. It is not clear what Natalie meant by taking "full control". John's counsel did not suggest that Natalie was drawing a distinction between beneficial control and legal control. Another interpretation might have been that Natalie was going to stop John having access to the use of the property, and/or having any involvement with the rental agent and/or other aspects of the property if he was no longer providing her with financial support. This was not explored in cross-examination.
7. Without more, I do not consider this text message conclusive that Natalie knew that she held the property on trust for John since 2011. Her text message is also consistent with her: 1. understanding that she owned the property and John had promised to assist financially with the property's costs, including where the rental payments were insufficient; 2. feeling that John was overbearing and had organised the purchase exactly the way he wanted without involving Natalie enough; 3. believing (wrongly or rightly) that John had organised the purchase in some way that avoided tax, whether that was a reference to stamp duty (which was paid for by the exemption), tax on the payments his company made to her, or something else. John did not give any evidence about how his alleged ownership of the property was accounted for in relation to any tax liability.
8. On an unknown date, but before 17 October 2017, John and Natalie exchanged text messages: John: "I want to deal with it" Natalie: "Put everything in your name and you can" John: "Until then, I need to pay the bill & collect the rent, have it properly documented."
9. On 17 October 2017, Natalie sent a text message to John raising similar ideas: "Stop threatening people it will get you no where. The only way you will ever have anything to do with shoal bay is when its in your name and you can pay the stamp duty. You screwed my life around with this so you can pay the price as I have. That's the optic Options."
10. These text messages in paragraphs [63] and [64] do not assist John. In them, Natalie is asserting that she is the owner of the property and John would have to pay for it and the stamp duty if he wanted to own it or be more involved with the property. That is consistent with Natalie's beneficial ownership, not John's.
11. On an unknown date, but because of its content likely to be in the second half of 2017, Natalie and John had this text message exchange: John: "What is the last bank statement?" Natalie: "Well money has gone on interest, that's $1014 per month you gave me 5k. I've been paying electeicity [sic] anf [sic] water from it I paid aircon deposit You haven't put money for months in there you know money does not come from trees. No bookings apparently"
12. On an unknown date but again likely to be in the second half of 2017, John and Natalie exchanged the following text messages: Natalie: "What have I stolen? I've spent none of that money it all went on the fence, clearner, bills, interest. You haven't put anything in there for months. Money was going to run out eventually no rental came in" John: "You told be [sic] it's rented to Christmas, where is the money?" Natalie: "They haven't transferred anything"
13. These text messages in paragraphs [66] and [67] do not assist John. It is not in dispute that John, through his company, made regular deposits into Natalie's bank account and from that money she paid for the mortgage and expenses to do with the property. These text messages do not go any further than Natalie explaining the details of that arrangement at the particular point in time.

Natalie's case

1. Natalie relies on John's own documents to demonstrate that the true intention of the parties was that John was providing her with a loan and other assistance with the property, but that she was the legal and beneficial owner of the property. Those documents are: 1. the bank account records created by John concerning money advanced to Natalie; and 2. the executed mortgage recording an advance of $75,000 with obligations for Natalie to repay that sum to John with interest.
2. In relation to the three transfers making up the sum of $75,000, John gave them certain descriptions in his company's banking records: 1. On 11 October 2011, the first $750 payment to the real estate agent was described as "Natalie deposit". 2. On 20 October 2011, the payment of $14,250, which was the remainder of the 5% deposit on the purchase, was described as "Loan Natalie". 3. On 21 October 2011, the payment of $60,000, which John says was necessary for Natalie to have in her bank account so she could secure a home loan for the purchase, was described as "Loan for Natalie".
3. John's evidence was that these payments were not truly a loan to Natalie, but instead ought to have been designated in the bank records as "loan to director". However, that is at odds with his evidence that he loaned money to the company and drew down on it; while not significant, if that was the case then instead it might be expected that they ought to have been described as "draw down on director loan" or similar.
4. John's evidence was that the descriptions were merely for the benefit of the accountant, so it would be clear that those transactions were "not taxable". That explanation is not convincing; there is no reason for John to give those particular descriptions in the bank accounts unless they reflected his state of mind at the time about the nature of the transfers of money.
5. His evidence that while he had his own personal accounts, it was "too complicated" to make transfers from those accounts rather than his company's account did not ring true. However, nothing turns on that. John clearly used the company bank account as his own, on the basis that he owned and controlled the company, being the sole director and shareholder.
6. I do not consider that John's use of the company's bank account changes the identity of the person making the advance; John was advancing the money by directing the company to pay, and he and the company had their own arrangements about those finances. Nothing need turn on this point here: see, eg, Birtwell v Sands [2012] QSC 396 at [152] (Margaret Wilson J); In the Estate of the Late Patrick Ambrose Tunchon [2019] NSWSC 802 at [76) (Ward CJ in Eq).
7. Further, it is relevant that the copies of the bank records that John annexed to his affidavit had the words "Natalie Loan" and "Loan for Natalie" redacted. John blamed his accountant for the redactions. However, in cross-examination he accepted that he had access to unredacted versions. It can be inferred that he decided to rely on redacted bank records as this is consistent with him wanting to distance himself from the description of the money having been "loaned", and inconsistent with his assertion of a trust.
8. The descriptions in the bank statements are also consistent with the mortgage document. The mortgage is dated 18 November 2011 and John and Natalie accepted that it was signed about that time. This was after the contract for sale of land had been exchanged and the sum of $75,000 had already been advanced to Natalie.
9. John's evidence in his affidavit was that he downloaded the mortgage form from the internet. However, in cross-examination he gave evidence that he engaged a solicitor from the law firm Gilbert Johnstone to prepare the document for him and, as that firm's name appears on the document, this explanation appears more likely. Further, the document has a witness' signature and that witness was not called to give evidence.
10. The mortgage document includes covenants to the effect that $75,000 was repayable on demand or when the property was sold and included an interest rate of 8% payable per annum. Desipte this signed document, John's evidence was that: "I did not prepare nor require Natalie to execute any loan agreement as the funds were not loaned to Natalie". John may have been trying to draw a distinction between a stand alone loan document and the covenants concerning the advance of money in the mortgage. However, Natalie, says that there was an oral loan agreement, whereby John said to Natalie: "Don't worry about the money, one day you will pay me back".
11. In his affidavit John said the purpose of the mortgage document was "in case an issue arose and Natalie turned rogue", and his evidence in cross-examination was: "Well, I had a mortgage document prepared. I don't know - I don't - I didn't discuss it that much with - or what - and - and it was just to guarantee me if I - if things went foul, she changed her mind, she wasn't going to be trustee anymore - at least to get that money back."
12. Counsel for John stated that the preparation and execution of the mortgage was "weird" and there was no real explanation for it, beyond it being a "fall-back arrangement" or a "cloak" of the "real nature of the arrangement", should it be found that John was not the beneficial owner of the property.
13. Objectively the mortgage which was prepared by lawyers at John's request was consistent with his intention that he was giving Natalie a loan to help her purchase the property in her own name, which was also consistent with Natalie's evidence. Logically, had John had a different intention, it is likely a different document would have been drafted by his lawyers.
14. John's evidence was that "every father would help their children out". Just as John advanced money to Natalie to assist her purchase a property and documented it by way of a mortgage including covenants requiring repayment of money, John also assisted Natalie and two of her siblings purchase another property with the benefit of loans from him.
15. I note that the first reference to a resulting trust is in the caveat (see [3] above). However, that document cannot assist John as it is an assertion well after the date of purchase, and is insufficient to influence the determination of whether or not there is a trust.

Payments made by John to Natalie for property expenses

1. John also relies on his company's monthly payments of $1,400 between May 2012 and May 2017 into Natalie's bank. This particular bank account was a personal account of Natalie set up at the time of the NAB loan. It was not the mortgage account, but payments for the mortgage were automatically debited from this account. Natalie also deducted money from that account for expenses related to the property, but also some personal expenses.
2. John's evidence was that these regular payments amounted to John paying all the property expenses and the mortgage. However, John knew of the mortgage account and could have paid directly into that account, just as Winnings paid the rental payments directly into that account. Instead he paid to a separate account and relied upon Natalie to use that money for the property.
3. Natalie's position is that John's company, rather than John, made these payments, and therefore John cannot obtain a remedy personally. I do not accept that John is shut out of a remedy if he sourced funds through his company, of which he was the sole director and shareholder. There can be no doubt that he caused the payments to be made, and from Natalie's perspective it does not matter from which account controlled by John they came.
4. The version of the bank records John produced in evidence to demonstrate the regular payments of $1,400 had the description "car allowance" redacted. He said in cross-examination that he had used that description for the first transfer by mistake, and then the description automatically repeated with the automatic monthly deductions. John's evidence was that Natalie was not entitled to a car allowance from the company for the role she was performing. Again, John's redaction of the description would seem unnecessary if his explanation was plausible; instead, the redaction tends to suggest John wanted to avoid the available conclusion that the payments were being made as a business expense to an employee, as this would not assist his case.
5. John accepted that a subpoena was issued to his company seeking "copies of all accounting records and statements, including ledgers, recording payments to Natalie Koprivnjak for period 1 October 2011 to 30 April 2017", which ought to have revealed documents concerning the payments described as "car allowance". No documents were produced. Therefore, it is impossible to know whether the company did in fact treat those payments as a deductible expense, or whether they were treated as a director's loan as John asserted. These matters would have been easy to demonstrate through documents or the company accountant.
6. It is clear that John provided the payments so Natalie could spend the money on property expenses and mortgage repayments as necessary. In fact she mainly used the money that way. However, there is no evidence that John told Natalie that these payments were made because he was the beneficial owner of the property. Further, these payments do not give rise to a resulting trust because they were not paid directly into the mortgage by John, but given to Natalie to use for any purpose for the property, not only the mortgage or improvements.

Determination

1. I find that in late 2011 John provided the $75,000 loan, and then between May 2012 and May 2017 organised the regular payments to Natalie's account, because he had a desire to assist his eldest child, Natalie, get a start in the property market very soon after she became an adult, and to ensure his family and friends had access to a holiday house.
2. Against such a conclusion, John's counsel submitted that it was highly improbable that: 1. Natalie would purchase a property and not visit it for 12 months; and 2. The parties intended that Natalie would obtain a benefit of over $400,000 from a property on which she expended no money.
3. I do not agree. First, as the property was an investment for Natalie and she was obtaining the help of her father in purchasing and renovating it, there is a reason why she may not have wanted to see it until it was renovated. Secondly, while the practical outcome is that Natalie will receive a benefit from the property, she did contribute to the property as she was legally exposed to the liability of the NAB mortgage and the loan advanced from her father. She also used her personal entitlement to the first home owners grant and stamp duty exemption and made some other payments from her own funds. It was equally possible that she could have suffered a loss, had the property market declined.
4. I do not find that as a whole Natalie's messages, taken together with the other evidence, indicate that it was the parties' common intention that the property was to be held by Natalie on trust for John.
5. The conclusion that there was no trust is most obviously demonstrated by contemporaneous documents created by John: 1. the mortgage with its particular terms created by lawyers at John's instruction; and 2. the descriptions of "loan" that John chose to use in relation to the advance of the $75,000.
6. For the reasons identified above, John's primary case must fail.

Alternative case: $75,000 loan/mortgage

1. John's alternative case arises if it is found that Natalie did not hold the property on trust for John.
2. I do not accept that John engaged lawyers to prepare the mortgage with the detail about the repayment of the $75,000, and required Natalie to sign it (apparently before a witness) merely in case she "went rogue". Had he wanted to protect a trust arrangement that he now asserts, it is likely he would have taken Mr Marando's advice and prepared a trust deed rather than a mortgage/loan.
3. Natalie accepts that John is entitled to the repayment of the $75,000 he provided to her, together with interest at the rate specified in the mortgage covenants. No party has provided the Court with that interest calculation.
4. I consider that Natalie is obliged to comply with the mortgage covenants and pay John in accordance with those terms.

Is there a set-off against the loan sum by reason of the paid insurance claim?

1. In about 2015, a gumtree fell on the property's roof. Natalie and John submitted an insurance claim. The insurance policy was in Natalie and John's name; Natalie's because she was the owner, and John's so that they could have the benefit of discounts available to John. In cross-examinatiom, Natalie refused to accept that John was an insured on the policy, adhering to her position that she was the only owner of the property, despite the clear documentary evidence that John was also listed as an insured. She considered this was a mistake by the insurance company, which seems an unlikely possibility.
2. John accepted that he received $115,695 from the insurer, made up of $77,695 for repairs and $38,000 for lost rental.
3. Natalie acknowledged that John carried out the necessary repair work, however, there is no evidence of the cost actually incurred for that work. Natalie considered all the insurance money was hers, and, in particular, the $38,000 for lost rental. The insurer's record of payment for that sum had Natalie's name as the relevant recipient, however, the money was paid to John's bank account at John's request.
4. There is no cogent evidence that Natalie sought repayment of the $38,000 from John at any time prior to the proceedings. She did not have any explanation for this, other than to say that she may not have asked for the money "because of the dynamic between myself and John".
5. While not explored in cross-examination or re-examination, it may have been that because Natalie knew that John was giving her money which she could use for the mortgage and property expenses, it did not matter to her that John retained the $38,000 insurance payout. Whatever the true reason, it does not amount to an admission against Natalie's interest concerning the existence of a trust in John's favour; it does not unequivocally demonstrate that she considered John was the true owner of the property.
6. In relation to a possible set-off, I consider that Natalie in effect gifted the $38,000 to John by giving a direction to the insurer to pay John and never attaching terms to that payment. Natalie is not entitled to a set-off.

Is John entitled to further relief for renovation of the property?

1. Part of John's case is that he paid for renovations on the property on the mistaken belief that the property was his. He originally claimed that this work entitled him to a "proprietary interest" in the property to the extent of the renovations undertaken. However, that was abandoned and instead John's counsel indicated that this part of the claim was based on Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 (Pavey & Matthews), namely an unjust enrichment claim.
2. John's counsel accepted that Natalie did not request that John carry out the works and that, therefore, Pavey & Matthews was factually different to the present circumstances. John's case was then explained as a mistaken payment case in this way: "…as in Davids Holdings and Natalie would have to be aware of the mistake. It wouldn't be sufficient if Natalie in all innocence thought that John was being generous and not mistaken as to his rights. There have to be an element of unconscionability, otherwise it would not be an unjust enrichment case."
3. In support of his claim, John brought forward evidence of various friends who are tradesmen (or retired tradesmen), who gave general evidence about having carried out renovation work at the property "for John". The evidence of these various witnesses are outlined below.
4. First, George Shulgin was an unlicenced gyprocker and friend of the family for about 35 years. He gave evidence about having carried out some works at the property at John's request and having been paid "directly by John". The only evidence of payments to Mr Shulgin around the relevant time were $2,500 from Titles Strata Management's bank account. However, the bank records do not record where the work paid for was carried out, nor the details of the work done.
5. Secondly, John Dimov described himself as a "construction worker" who had known John for many years. He said John asked him to do some cladding and other work, which he did with his sons in early 2012. He said he had not found any paperwork to do with the works but recalled "the costs was about $20,000". However, in cross-examination he conceded that the total price was more likely to be around $9,000-10,000.
6. Thirdly, Tony Arzoumalian is Lena's brother and, before retiring, worked in the construction industry for about 40 years. His evidence was that he constructed a retaining wall and did paving and landscaping works at the property in early 2012. He believed John owned the property. He gave no evidence of value of the work. He was not cross-examined.
7. Fourthly, Milan Rogulj had known John for "many years". He is not a licensed builder. He organised building materials for John on his account to obtain him a discount. He had no paperwork demonstrating the materials provided to John because the relevant company, Metro Fit Interiors, providing the materials was sold in 2014. He accepted that his affidavit is incorrect because it suggests that he continued to manage that company as at the date of his affidavit. At the time, the company was doing work for John's "private things". He recalled the "material cost was about $15,000". He could not remember exactly how much the cost was or the quantity of the materials or what he invoiced. He thought invoices were paid by John, but did not know the details of payments.
8. Based on the available evidence, it is impossible to quantify the value of the works or materials with any certainty; based on the evidence, at most John may have spent $30,000.
9. An earlier submission that John obtained a proprietary interest in the land because of the renovation works that he carried out was sensibly abandoned by John's counsel in final submissions.
10. The remaining basis for the claim was that the renovation works were carried out by John because he held a mistaken belief that he owned the property and that mistaken belief was known to Natalie. However, I have found that there was no intention to create a trust, and consistently it is not possible for John to prove that he held a mistaken belief contrary to that intention more recently asserted. Further, it has not been demonstrated that Natalie took advantage of that mistaken belief, particularly where she did not request the renovation work to be carried out.

Conclusion

1. For the above reasons, the defendant has had substantial success and the plaintiff has failed.

Orders

1. The Court makes the following orders: 1. The parties are to confer and provide short minutes of order reflecting this judgment and the appropriate costs order to my Associate within 7 days of the publication of this judgment. 2. In the event of any dispute as to the form of the orders, each party is to provide their proposed short minutes of order and up to 2 pages of submissions in support of the proposed orders, including as to costs, together with any evidence relied upon as to costs, to my Associate within 7 days of the publication of this judgment.

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: 16 May 2022