1. Pursuant to s 106 of the Taxation Administration Act 1997, the applicants requested referral of the respondent's determination to disallow the applicants' objection to the respondent's assessment in relation to duty pursuant to the Duties Act 2000 of duty in respect of a transfer of land of 20 Dunraven Avenue, Toorak (the property). The sum of the duty was $206,250 which arose as a result of the applicants' two children Louis Lim (Louis) and Jeanette Lim (Jeanette) transferring their interest in the property to the applicants. Such transfer was dated 16 December 2010.

1. The applicants' two children Louis and Jeanette were born on 20 April 1970 and 14 February 1974 respectively.
2. On 25 September 1995, the said children Louis and Jeanette signed a contract to purchase the property for the sum of $505,000. Possession of the property was given to the said children on 20 December 1995 after the purchase was complete. For some time, both the applicants and their children lived in the property. The transfer was registered on 17 March 1996 showing the two children Louis and Jeanette as registered proprietors. Stamp duty in the sum of $26,500 was paid on that transfer.
3. It was desired that the house on the property be demolished and a new house built by "Glenville" who were registered builders. There are two quotations from Glenville - one addressed to "Q and Nancy Lim" in the sum of $382,035 and another addressed to "L and J Lim" in the sum of $379,746. It is unclear which, if either, of those quotations was agreed upon although it does appear that Glenville constructed a new house on the property. In any event, the Lim family all lived together in the house from 1998 until 2007 when Louis, having finished his medical course, moved out. One year later in 2008, Jeanette who had also finished her medical course, moved out.
4. As a result of Louis and Jeanette moving out of the property, it was no longer their principal place of residence and, as a consequence, in 2009 and 2010 land tax assessments were issued. The two children objected to the land tax assessments, arguing that for the purpose of the Land Tax Assessment Act 2005, they held the property on trust for their parents who are the applicants in this proceeding. They said the property was used as the applicants' principal place of residence. Those objections were disallowed by the respondent.
5. Following on from the disallowance of that objection, on 16 December 2010, both children Louis and Jeanette executed a transfer of land in relation to the property in favour of their parents, the applicants in this proceeding. The consideration in the transfer was referred to as "entitlement in equity". The applicants then had the property appraised by RT Edgar Real Estate agents who said the value was between $M3.5 and $M4. Taking a mid-point of these two figures, the respondent then assessed the duty, which I have referred to, at $206,250.

FINANCIAL POSITION OF THE CHILDREN AT THE RELEVANT TIME

1. For the financial year ending 30 June 1995 Jeanette, in her witness statement which was tendered into evidence, stated that she was a medical student and earning $33,000 as a clerical officer. Curiously, her brother Louis stated in his oral evidence that he did not know she had part-time employment. The respondent did not ask to cross-examine Jeanette.
2. In Louis' witness statement, he states :

In 1995 I was working as an intern, and on an annual salary of approximately $55,000 for the 1995 year, and an annual salary of $87,000 for the 1996 year.

1. During the hearing, it became obvious that both children and the applicant Nancy Lim had shares in and were paid dividends from an overseas company in Malaysia. There were very few relevant financial documents produced by the applicants relating to their financial position or their children's financial position in or around 1995 or previously. The one financial document that was produced was a passbook account from the Bank of Melbourne in the name of Louis Lim. Both Kiew Lim and Louis Lim said that Louis was the only person who could withdraw money from that account but others could possibly have paid money into the account.
2. Between 13 August 1991 and 21 January 1993, a total sum of $174,000 was deposited into Louis' account. Much of the sums were quite large being between $16,000 and $44,500. Kiew Lim said he deposited these monies into the account from dividends paid by the company in Malaysia. It would appear that those dividends were as a result of the share holding of Louis in that company. That is, he was entitled to receive those dividends. I infer that, as Jeanette was also a shareholder in that company, it is likely that she would have been paid similar dividends. None of her financial records of the company or records of dividends paid were disclosed.
3. The bank passbook also shows that there were a number of quite large sums between $35,000 and $10,000 withdrawn from the account. Louis Lim was unable to explain where this money went or who withdrew them. Kiew Lim stated that when he wanted some money, Louis would sign the withdrawal form and he (Kiew Lim) would withdraw the money. I find that it is likely that he withdrew that money. That is, Kiew Lim withdrew the money belonging to Louis. It is also likely that such withdrawals would have been made from Jeanette's account.
4. Louis' taxation return for the year ending 30 June 1995 reveals that at that time, he had three bank accounts - one with the Commonwealth Bank and two with the Bank of Melbourne. At the same time, Jeanette's tax return reveals that she had four bank accounts - one with the Commonwealth Bank and three with the Bank of Melbourne. It should be noted that the dividends from the company in Malaysia are not shown in the tax return of either Jeanette or Louis.
5. It would have been a relatively simple matter for the applicants to produce documentary evidence or give evidence as to the precise set up and income received from the Malaysian company. However, that was not done. I only became aware of the Malaysian company as a result of cross-examination by Ms Neskovcin. During such cross-examination, it was revealed that Louis, Jeanette and their mother held shares in the Malaysian company and consequently received income therefrom. The fact that no company documents were produced or no documents were produced showing income that was received by Louis and Jeanette from the Malaysian company, leads me to draw the inference that such evidence would not have assisted the applicants' case. See Jones v Dunkel [1959] 101 CLR 298. Kiew Lim stated that all his relevant documents were destroyed. However, it is difficult to believe all the company documents would have gone missing or there could not have been some explanation relating to payment and use of dividends from the Malaysian company.
6. Bearing in mind the interest of Louis and Jeanette in the Malaysian company, it is likely that their financial position in 1995 was considerably better than what has been stated in their material.

1. The issue in this proceeding concerns the question of whether s 34(1)(b) of the Duties Act 2000 (the Act) applies to exempt from duty the transfer of the property from the applicants' children to the applicants as transferees. This, in turn, will depend on whether the applicants "provided the money for the purchase of the dutiable property" and whether the property was held in trust by the children Louis and Jeanette for the applicants.

1. Section 7(1)(a) of the Act provides :
   1. Imposition of duty on certain transactions concerning dutiable property

(1) Dutiable property is any of the following -

(a) each of the following estates or interests in land in Victoria -

1. Section 20 deals with the dutiable value of dutiable property. It states -

20 What is the dutiable value of dutiable property?

(1) The dutiable value of dutiable property that is the subject of a dutiable transaction is the greater of -

(a) the consideration (if any) for the dutiable transaction (being the amount of a monetary consideration or the value of a non-monetary consideration); and

(b) the unencumbered value of the dutiable property.

22 What is the unencumbered value of dutiable property?

(1) The unencumbered value of dutiable property is the amount for which the property might reasonably have been sold in the open market -

(b) in any other case - at the time the dutiable transaction occurred -

free from any encumbrance to which the property was subject at that time.

(1) No duty is chargeable under this Chapter in respect of -

(b) a transfer of dutiable property or marketable securities referred to in section 10(2) from an apparent purchaser to the real purchaser in a case where dutiable property or marketable securities are vested in an apparent purchaser upon trust for the real purchaser who provided the money for the purchase of the dutiable property or marketable securities.

1. Section 110 of the Taxation Administration Act 1997 provides -

On a review or an appeal, the taxpayer has the onus of proving the taxpayer's case.

WHO PROVIDED THE MONEY FOR THE PURCHASE OF THE PROPERTY?

1. The applicants and their two children all state that the money for the purchase of the property, including the deposit, the entire purchase price and the ad valorem duty and registration fees were all paid by the applicants. Further, it is stated that the cost of building the new home was also paid by the applicants.
2. In cross-examination, Kiew Lim said that most of that money came from funds he had on hand, that is, cash reserves. The balance of the purchase money came from the proceeds of sale of four properties which the applicants both owned in East Burwood, Ashburton, North Melbourne and Box Hill.
3. The construction of the new home was also mainly funded by cash reserves but also came from the proceeds of sale of seven properties owned by both applicants, viz, the former family home in Burwood, Surrey Hills, and three properties in South Yarra, Toorak and Hawthorn.
4. The applicants also rely on a letter from the solicitor who managed the applicants' conveyancing, Michael O'Brien. Such letter is dated 16 October 2009 and Mr O'Brien therein states :

I acted for them (the applicants) on the purchase of 20 Dunraven Avenue, Toorak, in the mid 1990s.

I can verify that the whole of the purchase price paid for the land was provided by the said Kiew Lim and Nancy Lim and there was no contribution at all from their son Louis or their daughter Jeanette.

I can also verify that I acted for Mr and Mrs Lim on the sale of other residential properties in about 1996, the proceeds of which sales went towards the cost of building the new house at 20 Dunraven Avenue.

1. The above letter from Mr O'Brien is quite unsatisfactory. Mr O'Brien does not state how he knew that the funds came from the applicants. He does not state the original source of the funds that made up what the applicants referred to as their cash reserves. It is noted that the applicants did not state in their material what were the source of those funds. Bearing in mind that large sums of money were put into Louis' bank account and drawn out by Kiew Lim, it is not unlikely that part of the cash reserves that were held by the applicants came from that source. Further, it is apparent from the evidence that Jeanette also had shares and received dividends from the Malaysian company. The Tribunal was not told what happened to those funds.

1. As I have previously stated, the applicants were in a position to lead evidence as to the way the funds from the Malaysian company were used by either the individuals or the family. However, no such evidence was led. As I have previously said, it is proper for me to draw the inference that such evidence would not have assisted the applicants.
2. Section 110 of the Taxation and Administration Act 1997 makes it clear that the applicants, as tax payers in this review, have the onus of proving their case. In this particular instance, there is a complete lack of explanation as to what happened to the money that was paid to both Louis and Jeanette from the Malaysian company. It seems likely that, certainly in Louis' case, and probably in the case of Jeanette, the money was taken by Kiew Lim and possibly paid into his own account or used for some other purpose by him. Bearing in mind the sums of money that were involved in the payment of dividends to Louis and by implication to Jeanette, from the Malaysian company, it is likely that a goodly portion of that money would have ended up in what Kiew Lim described as his cash reserves. Such cash reserves being used to pay for the purchase of the property and the building of the house.
3. As Ms Neskovcin has rightly submitted, I do not have to be satisfied as to the source of the purchase money (being from the applicants). What I must be satisfied of, pursuant to s 34(1)(b) of the Act, is that the applicants "provided the money for the purchase of the dutiable property". In this particular instance, as I have found, it is likely that a considerable portion of that money may have come from the children Louis and Jeanette, therefore I cannot be satisfied of the requirement referred to in s 34(1)(b). That is, for the exemption claimed in s 34(1)(b) of the Act, I must be satisfied that the purchase money from the property was provided by the applicants. On the balance of probabilities, on the evidence before me, I cannot be so satisfied.
4. As I am not satisfied that the applicants provided the purchase money for the property, it necessarily follows that they must fail in their application for duty not to be chargeable in respect of the transfer from the children Louis and Jeanette to themselves. However, in case I am wrong about the finding in relation to the applicants not providing the purchase money for the property, it is desirable that I make findings on whether the property was held in trust by the children for the benefit of the applicants.

1. In discussing this issue, it necessarily follows that I must assume that the purchase money was provided by the applicants, even though I have made a specific finding that I am not satisfied that they provided such money.
2. The applicants say that as they provided the purchase money in respect of the property, the property is held on a resulting trust by Jeanette and Louis for the benefit of the applicants. The Commissioner submits that the resulting trust is rebutted in this particular case, because there was a gift from parents to children, which results in a presumption of advancement. That is, the resulting trust is rebutted because of the relationship between the donor of the money and the donee, that is, parents to children. However, the applicants then submitted that the presumption of advancement is rebutted by the fact that the money that was used to purchase the property was never intended to be a gift to the children; alternatively, the property was only intended to be a gift to the children after the lives of the applicants, that is, the applicants held a life interest in the property.
3. The relationship of a resulting trust and a presumption of advancement were discussed by the High Court in Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353 at 363 and 364 where the Court stated :

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

1. The relationship between a resulting trust and a presumption of advancement was also the subject of discussion by Gibbs CJ in Calverley v Green [1984] 55 CLR 242 at 246-247 :

Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship, presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such - not, e.g., as a loan. Consistently with these principles it has been held that if two persons have contributed the purchase money in unequal shares, and the property is purchased in their joint names, there is, again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportions in which they contributed the purchase money: Robinson v. Preston; Ingram v. Ingram and Crisp v. Mullings (a decision of the English Court of Appeal).

As I have indicated, the general rule that in the situations mentioned it is presumed that a resulting trust arises in favour of the purchaser, or in favour of two purchasers in the proportions in which they contributed the purchase money, is subject to the exception created by the presumption of advancement. 'It is called a presumption of advancement but it is rather the absence of any reason for assuming that a trust arose or in other words that the equitable right is not at home with the legal title': Martin v. Martin; in other words, it is 'no more than a circumstance of evidence which may rebut the presumption of resulting trust': Pettitt v. Pettitt. The presumption arises when a husband makes a purchase in the name of his wife, or a father in the name of his child or other person to whom he stands in loco parentis. ...

1. It is clear that for the presumption of advancement to be rebutted, there must be a common intention of the parties that such presumption should be rebutted. In this case, the parties are the applicants and their two children Jeanette and Louis. At p 261 of Calverley v Green Mason J and Brennan J stated -

The next question is whether the equitable presumption applicable when unequal contributors to the purchase price who are not spouses and who take a conveyance to themselves as joint tenants is rebutted or qualified by the circumstances. The equitable presumption can be rebutted or qualified by evidence of a contrary intention common to the contributors of the purchase price. When a common intention is in issue, it is not ordinarily to be found in an uncommunicated state of mind; it is to be inferred from what the parties do or say. (underlining supplied).

1. It will be remembered that in the Grimley case the High Court made it clear that the intention was to be looked at at the time of purchase.
2. The matters which the applicants rely on as to show that there was a common intention between the applicants and their children at the time of purchase are as follows :

A At paragraph [5] of Kiew Lim's statement, he states :

Nancy and I purchased the property ... and we registered the property in the names of our children, Louis and Jeanette. We did this without any proper legal or financial advice. This practice was commonplace in our countries of origin and we assumed that no adverse financial consequences would ensue.

B At paragraph [13] of Kiew Lim's statement, he states :

My wife and I discussed purchasing the property and placing it in the names of our children. Our decision to do this was based on our (erroneous) belief that this would be the best thing to ensure that our children were provided for in the event that my wife and I passed away. This is common Chinese practice and custom.

C At paragraph [17] of Kiew Lim's statement, he states :

It was my wife's and my intention to place the property in the names of our children so that, in the event of our death, our children would have a home.

D At paragraph 31 of Kiew Lim's statement, he states :

Our family intended that the owners of the property were myself and my wife. It was our intention that, only upon our deaths would the property be owned by our children.

1. The evidence of Louis at paragraphs [9-10], [14] and [21] of his statement were as follows :

I did not believe that the property was mine and my sister's or that it was being gifted to us at that time.

At the time I accepted that the property was owned by my parents and they were at all times the owners of the property.

My parents have lived at the property continuously since 1998, and it is has been their home from this date.

I and my sister agreed to transfer the property to our parents as they :

1. Ms Neskovcin points out that the matters referred to my Kiew Lim and his son Louis, which were relied on above by Mr Grace of counsel for the applicants, were not matters contemporaneous with the purchase. They are all matters that were in the applicants' minds, apart from the fact of Louis and Jeanette moving out of the premises and transferring the property to their parents.
2. Ms Neskovcin points to the following facts as showing the objective intention of the applicants and their children at the time the property was purchased :

1. The Contract of Sale of the property was signed by Louis and Jeanette and settled in their own name; 2. The letter from Mr O'Brien, solicitor, notifying of the settlement of the property and requesting payment of costs, was sent to Louis and Jeanette, not the applicants;

1. The property was registered in the names of Louis and Jeanette;

1. At least one of the quotations from Glenville was addressed to Louis and Jeanette; 2. Louis and Jeanette lived in the house until 2007 and 2008 respectively; 3. Rate notices were in the names of Louis and Jeanette; 4. The decision to place the property in the names of the children were made by the applicants and "there was little or no discussion about this" (see Louis' statement paragraph [8]; 5. In paragraph [2] of a statutory declaration declared on 3 April 2009, Kiew Lim states :

My wife and I purchased the property in 1996 and for asset protection and succession planning purposes registered the property in our children's names. ... However , it has become apparent that we were ill-advised to register the property in this way.

1. Mr Grace referred to the case of Macquarie Bank Ltd v Lin [2005] QSC 221 and stated that in that case in the Supreme Court of Queensland, "while the parents had placed a valuable property in the name of their son, they did not intend that the son have the property beneficially". He referred to McMurdo J's decision where his Honour stated :

[38] When this house was purchased, Konrad was a 17 year old school student living with and wholly supported by his parents. The presumption of advancement applies and it is for Mr and Mrs Lin to rebut it. If that presumption is rebutted, it is presumed that their intention was to have Konrad hold the house on trust for them, unless it is established otherwise. It is for Mr and Mrs Lin to rebut the presumption of advancement, and if they do so, it is for Macquarie to rebut the presumption of the resulting trust. There is an overlap between the facts and circumstances which are relevant to those presumptions.

[39] Especially in the context of 1993, an amount of $6,800,000 was a very large sum by any standard to give a 17 year old by way of parental provision, even allowing for the fact that Mr and Mrs Lin were wealthy. ....

[40] Mr and Mrs Lin intended this to be the house in which not only Konrad but the entire family, including Konrad's grandmother, would live. That intention is not in dispute. The Lins argue that they could not have intended Konrad to have been the beneficial as well as the legal owner because that would have put in Konrad's hands the control of an asset which was of particular importance for the welfare of their entire family. Macquarie submits that they intended a gift, but with an expectation that Konrad would be "culturally obliged to respect and obey them" and to "do what his father [said]" in any respect concerning the house. On Macquarie's argument, Konrad was to be the beneficial owner, subject to a moral but not legal obligation that he would act in relation to the house in the way which was directed by his parents. ...

[41] ... Mr Lin was an experienced businessman whose fortune was self made, and who, as I see him, was unlikely to have intended to give away the beneficial ownership of such an important and valuable asset to a schoolboy son who had no business experience or demonstrated acumen. Whatever faith he might have had in Konrad, it is my view of him that he would not be inclined to empower Konrad to deal with the house. That view is fortified by the Lins' keeping the certificates of title in their possession, in the safe to which Konrad did not have access.

[42] Clearly a house such as this was going to require considerable upkeep and other expenditure for things such as rates and insurance. .... Of course Mr and Mrs Lin cannot rely on the evidence of their own contributions to the maintenance and improvement of the house, as evidence of their intention at the earlier point when the house was purchased. But the point is that at that time, Konrad had no apparent means of meeting the substantial costs of the house's ownership. That makes it less likely that he was intended to be the beneficial owner. ...

[44] I accept that there were no discussions between Konrad and his parents as to who would be the beneficial owner. That is another circumstance which makes it more likely that there was no intended gift. Had the Lins been giving the house to Konrad, it is likely that they would have told him, so as to promote his loyalty and sense of obligation. Instead they said nothing, because in their own minds the house would remain theirs. ....

[45] ...[The Lins] said they put the house in Konrad's name because they believed that it would bring them good fortune to do so because of the coincidence of the "KLB" on the plaque. Macquarie submits that I should reject that explanation as contrived. I have accepted the evidence of Mr Hsu, the real estate agent, that Mr Lin was impressed by the plaque and saw it as some favourable sign. Ultimately, I accept the Lins' evidence that it was for this reason that the house was put in Konrad's name. That evidence, of course, is considered with everything else and what I see as a number of circumstances which make it improbable that they intended to give Konrad the house. ... Whilst Mr Lin was prepared to put very valuable assets in the names of others, my view of him is that he was unlikely to have seen fit to give away the family house to his schoolboy son.

[46] In my conclusion the Lins have proved that they did not intend to provide this house by way of advancement. There is then a resulting trust in their favour unless Macquarie can rebut it. ...

[47] Subject to the bank's estoppel case, Mr and Mrs Lin have proved that Konrad holds the house upon a resulting trust for them.

1. Mr Grace submitted that that decision was almost on all fours with the present case and I should decide the present case the same way as McMurdo J decided in the Macquarie Bank case.
2. However, in my view, that case is distinguishable from the present situation for the following reasons :

1. Both children were earning in this particular instance and had the prospect of earnings increasing very considerably in the near future. I make this inference as Louis had already passed his medical course and within a very short while his earnings would be very substantial. Jeanette was well into her medical course and she was earning $38,000 per year as a clerical assistant at that time. In the Macquarie Bank case, the child in question was only 17 and had no earning capacity whatsoever and could not pay the costs associated with keeping the property. This was not the case here. The applicants' children would have been able to pay the costs of the upkeep of the property because of their earning capacity. It is also noted that the applicants' children had shares in the Malaysian company which were producing an income. 2. Both children here were of majority being over the age of 18. The child in question in the Macquarie Bank case was a minor.

1. The amount of the purchase price here was only a small fraction of the purchase price of the property in the Macquarie Bank case. Here, the purchase price of the property was a bit over $500,000 and even with the new construction to be performed was still under $M1, closer to $900,000. However, in the Macquarie Bank case, the purchase price of the property was not far under $M7.

1. In the Macquarie Bank case the house was placed in child's name to bring the parents good fortune. In this particular instance, on the applicants' own evidence, the house was placed in the children's names for estate planning purposes, asset protection and as a result of Chinese custom.
2. It seems to me that the acts of both the applicants and the children at the time of purchase and very soon thereafter, point to the fact that the presumption of advancement should apply. In Shephard v Cartwright [1954] UKHL 2; (1955) AC 431 at 445, Viscount Simonds accepted what was stated in the 24th Edition at p 153 of Snell's Equity where the author stated :

The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration ... But subsequent declarations are admissible as evidence only against the party who made them, not in his favour.

The acts relied upon by the applicants are not contemporaneous or objective.

1. Mr Grace submitted that the fact that both Louis and Jeanette stated that the property was always considered to be the parents and treated as such should be looked at as a declaration made against their interest. He relied on the statement by Viscount Simonds in Shephard's case at 449 :

I conceive it is possible, and this view is supported by authority, that there might be such a course of conduct by a child after a presumed advancement as to constitute an admission by him of his parents original intention, though such evidence should be regarded jealously.

1. In this particular instance, the admission by the children are not in fact against their interests. It is the children's interests, for the purpose of this proceeding are that the parents should not have to pay duty in relation to the transfer that was executed. They are supporting their parents. This is a very different situation to where a child is in litigation against his or her parents. In that situation, a declaration against the interest of the child would have more weight.
2. Ms Neskovcin also points to the fact that it was only after Jeanette and Louis received the land tax assessment for years 2009 and 2010 that the property was transferred into the parents' names. The property became subject to land tax when Jeanette and Louis moved out and, as a consequence, was not their principal place of residence.
3. It is also apparent that where assets are transferred by one party to another, for a taxation advantage, the person who transferred the assets cannot allege that the asset was transferred purely for tax advantage and therefore did not belong to the transferee. In Martin v Martin [1959] HCA 62; (1959) 110 CLR 297, the High Court rejected the submission that a beneficial interest remained in a party who had assigned the legal interest for the purpose of minimising taxation. At p 305, it stated :

... that the reason or motive for causing the property to be purchased in the name of the wife was to make it possible to avoid tax or to escape some provision of the law must often be amphibolous. For it may be relied upon as a ground for saying that since tax could not lawfully be avoided or the provision of the law escaped lawfully unless the beneficial ownership was conferred with the legal property, the presumption is strengthened that it was so intended.

1. This proposition has been adopted in several cases in family law and in particular in Elias v Elias [1977] FamCA 61; (1977) FLC 90-267 at p. 67 424 where Golstein J stated :

I thus have to consider when approaching the matter of alteration of property interest whether the husband can be heard to say to the Commissioner of Taxation that the business is half his and half his wife's and yet say to her and this court that it is all his.

His Honour then held that the minimising of income tax may provide a very sound reason for the assignment of property. So in the common husband and wife partnership situation if the husband was paying tax on the whole of the income of the partnership himself the tax would be much greater and the amount left over for reinvestment would be much less. Therefore, his Honour held that the transferor cannot claim back the interest which was transferred.

1. The current situation is analogous to a gift for taxation purposes. Here, the applicants have stated that the property was put into the children's name for "asset protection and succession planning purposes". It necessarily follows applying what was said in Martin's case, it is now not open, given these circumstances, for the applicants to say that the property was held on trust by their children for them either in respect of the whole estate or a life estate. For the purposes of asset protection, it was necessary for the applicants to divest themselves of the purchase price and/or property and possibly for estate planning purposes. Thus, they cannot "have their cake and eat it too".
2. Weighing all these factors up, in my view, the balance weighs very strongly in favour of the factors relied upon by Ms Neskovcin as showing that the common intention of the parties was at all times, up to receiving the land tax assessment, that Louis and Jeanette were to be both the legal and beneficial owners of the property. That is, the purchase money for the property was a gift from the applicants to their children Louis and Jeanette. This being the case, the presumption of advancement has not been rebutted.

1. Mr Grace referred to Ford and Lee: The Law of Trusts (Online Edition) as at 16 August 2012 [21.140] where the author stated :

A resulting trust does not necessarily entitle the transferor or purchaser to the entire equitable interest in the property. The evidence against the resulting trust may show that there was an intention to benefit the transferee not absolutely but only by way of an interest for life or, in other cases, by way of an interest in remainder expectant on the death of the transferor or purchaser. ....

Sometimes, as in Re Kerrigan; Ex parte Jones .... and Russell v Scott ... when a person transfers property to or directs a transfer to a younger person, the intention is that the transferee is to have the beneficial interest only on the death of the person transferring or directing.

1. Mr Grace also referred to Dullow v Dullow (1985) 3 NSWLR 531 where the New South Wales Court of Appeal made it clear that a transfer of a property to a child, can be for the remainder, after the life of the transferor if it is clear the transferor intended to have the property for her life.
2. In support of Ms Neskovcin's proposition that s 34(1)(b) of the Act did not apply to exempt transfers where there was a reservation of a life interest, Ms Neskovcin referred to Commissioner of State Revenue v Pattison [2001] 3 VR at 520 where Hansen J considered whether the forerunner to the present section applied to the transfer of lots resulting from the subdivision. At p 523, his Honour held that there should be identity between the real property and the nominee or trustee first purchases and then transfers, and the beneficial owner must have paid the whole of the purchase monies. Hansen J reached the above conclusion after referring to Extra Nominees Pty Ltd v Comptroller of Stamps (Vic) (1990) 90 ATC 2021 where a trustee held land on behalf of 4 joint venturers (including the applicant) and where land was later transferred to the applicant. The applicant claimed that the exemption applied, (per G Nettle as he was then) rejected the applicant's claim holding at [26] and [33] that the exemption was meant to apply where there was no change in beneficial entitlements. In other words, the applicant was not entitled to the exemption because he was not previously beneficially entitled to the whole of the property and there was no provision for apportionment.
3. In Gleeson v Commissioner of State Revenue [2009] 28 VR 607, Mandie J held at 614 [32] that while the language of s 34(1)(b) had exemption and the exemption in the Stamps Act were different, the result was the same.
4. I agree with Ms Neskovcin that at the time the children transferred the property to the applicants, even if the applicants had a life interest in the property, that interest would have been merged in the interest transferred which was the entire interest in the property, and thus after the transfer the applicants' equitable interest in the property changed from a life interest to the entire interest of the property and, accordingly, the exemption under s 34(1)(b) did not apply.

1. In conclusion, I am not persuaded that the applicants provided the "money for the purchase of the dutiable property". Further, the applicants have failed to rebut the presumption of advancement of the entire property and thus a resulting trust does not apply. Further, I am not satisfied that the property was intended to be held by the applicants for life as that would be contrary to "asset protection". Even if it was such life interest as that the applicants may have had, such interest was merged in the transfer of the whole of the property. In any event, as the property was in the names of Louis and Jeanette for estate planning purposes and/or asset protection, the applicants cannot now be heard to say that they maintain an interest in the property, either a whole beneficial interest, or a beneficial interest for the purpose of a life interest. Given those circumstances, the decision of the respondent will be affirmed.