Papas v Co - [2018] NSWSC 1404 - NSWSC 2018 case summary — Zoe

NSWNSWSC

Papas v Co

[2018] NSWSC 1404

Supreme Court of NSW|2018-06-21|Before: Hallen J, Tamberlin J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-06-21

Before

Hallen J, Tamberlin J

Catchwords

EQUITY - Trusts and trustees - Resulting trusts - Purchase money trust

Source

Original judgment source is linked above.

Catchwords

EQUITY - Trusts and trustees - Resulting trusts - Purchase money trust

Judgment (23 paragraphs)

[1]

BPR 17,339 Hintze v Tsering [2018] NSWSC 1190 Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413 Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep) Lucas v Lucas [2018] NSWSC 962 McEvoy v McEvoy [2012] NSWSC 1494 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 National Commercial Banking Corporation of Australia Ltd v Hedley (1984) 3 BPR 9477 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Ogilvie v Adams [1981] VR 1041 Onassis v Vergottis [1968] 2 Lloyd's Rep 403 Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280; (2013) 304 ALR 651; [2013] SASCFC 57 Plunkett v Bull (1915) 19 CLR 544 Potter v Potter [2003] 3 NZLR 145 Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 [2012] NSWSC 1548 Re Hodgson (1885) 31 Ch D 177 Russo v Bendigo Bank Ltd [1999] 3 VR 376; [1999] VSCA 108 Ryan v Ryan [2012] NSWSC 636 Sammut v Kleemann [2012] NSWSC 1030 Sansom v Westpac Banking Corporation (1996) 7 BPR 14615 Shepherd v Doolan [2005] NSWSC 42 St George Bank v Meredith; Ghabrial v Meredith [2017] NSWSC 961 Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Vlahos Pty Ltd v Vlahos [2017] VSCA 166 Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 Warner v Hung; Re Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Weeks v Hrubala [2008] NSWSC 162 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Yeshiva Properties No 1 Pty Limited v Marshall [2005] NSWCA 23 Ying v Song [2010] NSWSC 1500 Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51 Texts Cited: M J Leeming and J D Heydon, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) N Skead and P Carruthers, "Fraud against the Registrar - An Unnecessary, Unhelpful and Perhaps, No Longer Relevant Complication in the Law on Fraud under the Torrens System" (2014) 40(3) Monash University Law Review 821 P Butt, Land Law (6th ed, 2010, Thomson Reuters) W Swadling, "Explaining Resulting Trusts" (2008) 124 Law Quarterly Review 72 Category: Principal judgment Parties: Stephanie Papas (Plaintiff) Vinh Tran Co (first Defendant) Jessie Rattanathip (second Defendant) Representation: Counsel: Mr E White (Plaintiff) Mr K Morrissey (Defendants)

[3]

Introduction

HIS HONOUR: These proceedings were commenced by the Plaintiff, Stephanie Papas, by Summons filed in the Family Provision List on 23 December 2016. On the first return date of the Summons, which was 3 February 2017, this Court ordered that the matter proceed by pleadings.
On 9 February 2017, the Plaintiff filed a Statement of Claim in which she sought, in broad summary, the following relief: 1. a declaration that the Defendants hold the property, situated at and known as XXX Talbot Road, Guildford ("the Guildford property") on trust for her; 2. a family provision order under Part 3.2 of the Succession Act 2006 (NSW) ("the Act") from the estate of her father, Van Chi Co ("the deceased"); 3. a claim for repayment of a debt of $30,000, said to be owed by the second Defendant, to her, together with interest thereon; 4. an order for costs.
The Defendants named in the Statement of Claim are Vinh Tran Co, the first Defendant, and Jessie Rattanathip, the second Defendant, each of whom is a sibling of the Plaintiff.
Without intending any disrespect, I shall, hereafter, adopt the preferred names used by the parties during the hearing, and for other family members, after introduction.
Van Chi Co ("the deceased") died on 18 January 2016, at the age of 74. Each of the parties is the child of the deceased. Vinh was born in June 1973, in Vietnam, and is now aged 45 years; Jessie was born in September 1975, in Vietnam, and is now aged almost 43 years; and Stephanie was born in January 1984, in New Zealand, and is now aged 34 years. There was a fourth child of the deceased, Simon, who was born, in New Zealand, in May 1986. Simon had played no part in the proceedings prior to his death in March 2018.
The first Defendant filed a Defence on 16 March 2017 and the second Defendant filed a Defence on 17 March 2017. By the date of the hearing, reliance was placed on the fourth Amended Defence of the first Defendant and the Amended Defence of the second Defendant. In circumstances to which I shall come, the first Defendant also relied upon a Cross-Claim.
The Defendants denied that Stephanie was entitled to any relief and they sought the dismissal of the Statement of Claim in its entirety. The hearing occupied three full days of Court time.
It is fair to say that a generally adversarial approach to the litigation, despite the family relationship of the parties, was taken throughout the proceedings on both sides. Several opportunities were given to them to resolve their disputes, both before, and after, the hearing commenced, all of which proved unsuccessful. It would seem that one, or all, of them, adopted an intractable position. What has been written is not a criticism, but as will be read, the natural consequence has been that the costs that have been incurred are disproportionate to the value of the claims being made on each side. Furthermore, the resentment and animosity between the protagonists, on public display, will, unavoidably, be destructive of any continuation of what was, at one time, a close the familial relationship (at least between Stephanie and Vinh).
Whilst many matters were in dispute, in relation to the claim for the family provision order, it was not in dispute that: 1. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. 2. The Plaintiff commenced the proceedings within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased): s 58(2) of the Act. 3. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order. As a child of the deceased, the Plaintiff is an eligible person within s 57(1)(c) of the Act. The language of the sub-section is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. 4. There is no scope for the operation of the intestacy rules (so that it is only necessary to refer hereafter to the Will of the deceased). 5. In the event that Jessie held the whole of the deceased's interest in the Guildford property on trust for Vinh, there is no other estate out of which a family provision order may be made, with the result that Stephanie's claim under the Act must be dismissed. 6. A family provision order may be made in relation to property that is not part of the deceased person's estate, but is designated as "notional estate" of the deceased person by an order under Part 3.3 of the Act: s 63(5). There is no property that may be designated as notional estate.
(Although not expressly referred to as property that could be designated as notional estate, there was no dispute that $6,617, comprising the member's account balance of the deceased ($1,817) and an insured benefit ($4,800), was distributed to Vinh, by the Trustee of the HESTA Industry Super Fund, after the commencement of the proceedings: Ex SP10. Clearly, even if designated as notional estate, that amount would not provide the fund from which additional provision, as sought, could be made for Stephanie.)

[4]

Procedural Matters

On 8 February 2018, the matter was listed, for hearing, for two days commencing in the Family Provision Running List, on 21 June 2018. Upon receipt by the Court, shortly before the hearing, of three folders that were said to comprise the Court Book and the documents upon which the parties intended to rely, and having briefly considered the nature of the proceedings, the Court formed the view that the case could not be completed within two days. The response, from each counsel, when an email was sent enquiring whether the matter would be completed within the allotted time, was somewhat equivocal.
At the commencement of the hearing, after some debate, the legal representatives, with apparent reluctance, confirmed that the case might not conclude within the allotted time. (In the events that have happened, the hearing did, in fact, take three full days.)
The parties were then told that the Court would commence the hearing for one day, and then adjourn the hearing, part heard, to 16 and 17 July 2018. That is what has occurred.
The Court requires the assistance of legal practitioners, to provide accurate estimates of hearing duration. This is particularly important in the Family Provision Running List when, based upon estimates provided by legal practitioners, a number of matters are listed for hearing consecutively.
During the course of the opening addresses, counsel for the Defendants stated that "our case is that … the real owner of the [Guildford property] is Vinh Co [the first Defendant]. So, on one view, there is no [actual] estate": T2.45 - T2.49.
A short time later, the following discussion took place between the Bench and counsel: T34 - T37. Although it is extensive, it is necessary to set it out as it assisted in the determination of the procedural problem that was raised: "HIS HONOUR: Mr Morrissey, there's been no cross‑claim filed by Vinh... MORRISSEY: No. HIS HONOUR: That's a bit of a problem, isn't it? Because I thought you have told me that he says the property held is on trust for him, but he hasn't made that assertion. MORRISSEY: No, he made that a deliberate decision. He wants to remain on good terms with his sister. HIS HONOUR: Which sister? MORRISSEY: With Jessie. HIS HONOUR: So he is not propounding a trust claim? He's saying it might be relevant to the issue of consideration in a family provision matter but he is not propounding a resulting trust? MORRISSEY: Yes, part of his defence is the resulting trust, but he is not propounding it by way of a cause of action, no, that's deliberate. HIS HONOUR: Mr Morrissey, it won't work that way, because if he is not asserting a resulting trust then the property, as to 95%, forms part of the estate of the deceased. It may be that his contributions to the property purchase will be relevant to how the burden of any additional provision is borne, but you need to consider that aspect as well because if one leaves out the 5% share passing to the Plaintiff under the Will, you then have 55% passing to the first Defendant and 35% passing to the second Defendant. Is it going to be asserted, for example, that the first Defendant's share of the estate does not bear the burden of any provision; or is it going to be that some other process is going to be followed for bearing the burden of provision? MORRISSEY: Any burden for provision would come from the second defendant because she has not put forward her personal financial circumstances. HIS HONOUR: No, but is that something that she consents to? MORRISSEY: She decided not to put forward her personal‑‑ HIS HONOUR: No, has she consented to bearing the burden of any additional provision that is made for the Plaintiff out of the estate of the deceased? MORRISSEY: I'll take some instructions. … HIS HONOUR: A conscious decision has been made by the first Defendant to not assert a resulting trust, but to rely on his contributions to the purchase price of the Guildford property. MORRISSEY: And the matters pleaded in his fourth amended defence. HIS HONOUR: And other matters in defence of the claims made by the plaintiff, is that right? MORRISSEY: That's right, your Honour. HIS HONOUR: Is that as you understood it, Mr White? WHITE: Yes. … MORRISSEY: Your Honour, as your Honour knows, still has under Uniform Civil Procedure, is it, s 26 power to make orders arising from the facts. HIS HONOUR: Yes, but I can't make an order that has not been sought. That's why I need to be absolutely sure about what is going on, Mr Morrissey, because what you've now told me seems to me, I may have misunderstood you, but what you are telling me now is slightly inconsistent with what you told me previously, which caused me to note that there was a trust claim being made by the first Defendant. MORRISSEY: Paragraph 32 of the defence he says, 'In the events which had occurred the first defendant...on or about 22 April.' The normal way in which that would be done is to put on a cross‑claim. I've been down this road before some time ago with the Defendants. Perhaps I could have a moment to discuss it with them again? HIS HONOUR: Yes. You see the point, there may not be $900,000 in the estate, there may be nothing in the estate. MORRISSEY: In fact that's our case. That's right. HIS HONOUR: That has to be asserted, Mr Morrissey, by way of a cross‑claim. Could you get some instructions so that I understand it? … HIS HONOUR: Mr Morrissey, I'm not being critical, but in fairness to Mr White if the estate is worth $900,000 that's one thing and presumably that's what he is basing his advice on, if the estate is actually worth $450,000 or less or nothing, then he will have to give consideration as to what advice he gives the Plaintiff. … MORRISSEY: Of course. With no disrespect to the Plaintiff and her advisors, the case has been run from the first affidavit sworn by Vinh on the basis that he paid for and owned Guildford. It's not new. It's carefully detailed in his May affidavit with supporting evidence. HIS HONOUR: Mr Morrissey, the events that occurred this morning may save the issue because if that's the position ‑ Mr White, that seems to be the position or not? WHITE: Your Honour, we don't dispute the first Defendant made contributions. We didn't see that as a resulting trust, that certainly has never been pleaded against us. We do take issue with some of the contributions and we do take issue with the timing of the contributions."
The matter of a Cross-Claim was raised again, following the long adjournment, when counsel for the Defendants stated, at T52.17 - T52.30: "MORRISSEY: I haven't had a chance to raise it with my friend but I'm instructed to indicate that the first Defendant wishes to file a cross-claim. If the first Defendant made a conscientious decision before today on that, the solicitors have written instructions on that, but both Defendants having heard what your Honour had to say this morning, over lunchtime they've instructed me that he wants to make a cross claim. I can tell you that it can be filed by Monday. And the second Defendant has indicated she will consent to the orders subject to some arrangement as to costs, but will consent to the orders. HIS HONOUR: With the result that she receives no part. MORRISSEY: That's right. That's right."
Again, at T94.06, counsel for the Defendants repeated that the proposed Cross-Claim would be served "by Monday" (which was 25 June 2018).
In fact, a copy of the proposed Cross-Claim was not provided to the legal representatives of Stephanie until 11 July 2018, that is, 2 working days before the adjourned date for hearing.
The Plaintiff did not consent to the proposed Cross-Claim being filed.
Section 22(1) of the Civil Procedure Act 2005 (NSW), the chapeau to which is the "Defendant's right to cross-claim", relevantly, provides for the bringing of a cross-claim: "22 Defendant's right to cross-claim (1) Subject to subsection (2), the court may grant to the defendant in any proceedings (the first proceedings) such relief against any person (whether or not a plaintiff in the proceedings) as the court might grant against that person in separate proceedings commenced by the defendant for that purpose."
(Sub-section (2), which relates to relief sought against a person who is not a plaintiff in the first proceedings, does not apply.)
The procedural rules relating to cross-claims are contained in the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Part 9. Other procedural rules, which are relevant to the question before the Court, are contained in UCPR, Parts 1 and 14.
UCPR rule 9.1 provides: "9.1 Making of cross-claim (1) A party (the cross-claimant), may make a cross-claim: (a) in proceedings commenced by statement of claim, within the time limited for the party to file a defence; or (b) in proceedings commenced by summons, before the return day specified in the summons, or within such further time as the court may allow."
UCPR, rule 9.1(3), provides that subject to Part 9, the UCPR applies to a cross-claim in the same way that the rules apply to a statement of claim. A defence to a statement of claim is to be filed within 28 days after service on the Defendant of the statement of claim, or such other time as the Court directs: UCPR, rule 14.3.
UCPR, rule 1.12 provides: "1.12 Extension and abridgment of time (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. (2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires."
As no Cross-Claim had been made in accordance with UCPR rule 9.1, Vinh required an order extending the time for the making of the Cross-Claim. It was for him, as the party seeking the extension of time, to satisfy the Court that it was appropriate to make the order.
In determining whether to exercise its power to extend the time for the making of the Cross-Claim, the Court must have regard to the mandatory considerations identified in Part 6 of the Civil Procedure Act. In particular, the Court was required, in accordance with s 58 of the Act, to seek to act in accordance with the dictates of justice. For the purpose of deciding what the "dictates of justice" are in a particular case, the Court must have regard to sections 56 and 57 of the Civil Procedure Act and may have regard to the matters in s 58(2)(b) and give effect to the overriding purpose of the Act referred to in s 56(1), which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440, Price J (as his Honour then was), at [14].
As the discussion between Bench and counsel at the commencement of the proceedings demonstrates, the explanation for the Cross-Claim not having been brought at an earlier time was that Vinh made a conscious decision to not make a Cross-Claim because of the good relationship that he had with Jessie. It was not a matter of inadvertence, or inattention, but rather a deliberate choice that he made.
Why the Cross-Claim was sought to be made subsequently, was not the subject of evidence brought on the application, although counsel for Vinh stated from the Bar table, without objection, that Jessie had conceded Vinh's claim, and that there was no likelihood of a disagreement between them and that there would be no effect on their relationship if the claim were made: T97.36 - T98.09.
In relation to the potential conflict of interest that would arise as between the Defendants, as Jessie is the sole executrix named in the Will of the deceased, she was named as the first Cross-Defendant in the proposed Cross-Claim. As counsel stated that she would not oppose the grant of relief sought by Vinh it appeared that there was no need for her to be separately represented.
In the course of argument, counsel for the Plaintiff was asked to elaborate on the reasons why Stephanie did not consent to the filing of the proposed Cross-Claim. The primary bases stated were its late service and Vinh's express disavowal to rely upon a Cross-Claim stated earlier in the proceedings.
Importantly, it was not suggested by counsel for Stephanie that granting leave to file the Cross-Claim would require her to serve further evidence, or that it would jeopardise the hearing being concluded within the time allocated. There was no submission made that there would be any disruption involved in the orderly continuation of the hearing.
Counsel for Stephanie raised the possibility that documents would need to be tendered, but doing so would not lengthen the proceedings. He required confirmation, from counsel for the Defendants, which was given, that no additional evidence from Vinh, in support of the proposed Cross-Claim, would be necessary.
Subject to one matter to which I shall next refer, it is clear that the issues raised in Stephanie's proceedings, and by Vinh, in the proposed Cross-Claim, are part of the broad dispute between the parties that, as will be read, had been boiling since, at least, early 2011. Stephanie's counsel did not submit to the contrary. To the extent that it is relevant, he did not suggest that the facts alleged were not related to, or connected with, the subject matter of Stephanie's claims for relief.
There is little doubt that the Cross-Claim could well have been brought considerably earlier. It is to be noted, in this regard, that these proceedings had been before the Court on 10 occasions before, on 8 February 2018, it was set down for hearing. There was then a pre-trial directions hearing on 21 May 2018. At the time the proposed Cross-Claim was provided to the legal representatives of Stephanie, the proceedings were part heard.
Having considered the form of the proposed Cross-Claim, it raised, for the most part, matters that had been the subject of detailed affidavit evidence that had been read, documentation that formed part of the evidence that had been tendered, and by the time it was dealt with on 16 July 2018, also matters upon which the Plaintiff had already been cross-examined.
The usual approach taken by the Court, so far as is practicable, is to determine all aspects of the controversy in the same suit. This approach, sometimes, is "expressed in the obscure maxim 'Equity delights to do justice', which alludes to the Court's wish to resolve the whole controversy and give effect to all equities of all persons involved in the controversy. The same policy is expressed in s 60 and in s 63 of the Supreme Court Act 1970": Yeshiva Properties No 1 Pty Limited v Marshall [2005] NSWCA 23, Bryson JA, at [77]; Across Australia Finance Pty Ltd v Kalls [2008] NSWSC 783, per Bryson AJ, at [26].
It is also necessary to remember UCPR, rule 36.1, which states: "36.1 General relief At any stage of proceedings, the court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion."
As will be read, there was material before the Court that established that there may be substance, at least to part, of the proposed Cross-Claim, namely the financial contributions made by Vinh to the purchase of the Guildford property. In the circumstances, a viable Cross-Claim should be able to be brought, albeit that it has been brought as late as it had.
One further matter, favouring the extension of the time to file the proposed Cross-Claim, was the Court's general reluctance to preclude a party from litigating a cause of action that he wishes to litigate, especially in the circumstance where counsel for the other party has not been able to articulate any prejudice that cannot be remedied by costs. A just resolution of proceedings remains the paramount purpose of s 56 of the Civil Procedure Act. It is, principally, because the Plaintiff has not been prejudiced that leave to file a Cross-Claim has been granted. In other circumstances, the application could well have disrupted the court proceedings and been procedurally unfair to the Plaintiff.
Yet, there was one aspect of the proposed Cross-Claim that was not the subject of evidence, and that was what is alleged in Paragraph 14, namely that: "In or about February 2009, Vinh and [the deceased] came to an agreement about the transfer of the Guildford property."
It was said that one term of which agreement was that the deceased would "leave his interest in the property on his death to Vinh". There were also some particulars of the alleged agreement that had not been raised: for example, particulars (v), (vi), and (vii), each of which I shall not repeat.
The agreement alleged to have been made between Vinh and the deceased is also relevant to Jessie, since, she would have needed to obtain advice about the merits of the allegation and whether she would be able to make a claim for a family provision order out of the estate of the deceased if that claim were advanced.
This was not a matter raised in the fourth Amended Defence, or so it would appear, otherwise, by Vinh. In all the circumstances, I concluded that the claim for relief that depended on Paragraph 14 of the proposed Cross-Claim (Paragraphs 2 and 3 of the relief claimed in the proposed Cross-Claim), relating to an alleged agreement between him and the deceased, should not be permitted to be advanced at the late stage of the proceedings.
At the conclusion of the argument, I indicated that subject to seeing a proposed form of Cross-Claim that did not include the allegation about an agreement between Vinh and the deceased, and without the relief sought on the basis of such an agreement, Vinh would be permitted to file the Cross-Claim out of time.
However, I permitted Vinh to include, in the proposed Cross-Claim, the amounts alleged to have been contributed by him to the Guildford property, both at the time of its purchase in 2005, and then, in early 2009, when title to the Guildford property was transferred from Stephanie to the deceased and Vinh in order to give meaning to the resulting trust claim.
In this way, the Court has to consider whether, if proved, the allegations made, give rise to any form of equitable relief to which Vinh would be entitled, such as a resulting trust.
On the morning of the third day of the hearing, a form of Cross-Claim was produced. Having considered it, and as there were no further submissions, by counsel for Stephanie, against the filing of the form of the Cross-Claim, the Court granted leave to Vinh to file and serve the Cross-Claim. This was done during the course of the third day of the hearing.
Of course, Stephanie did not have any opportunity to file a Defence to the Cross-Claim. I have treated the allegations made in the Cross-Claim as either not admitted, or denied, by Stephanie, bearing in mind the evidence already read, and also bearing in mind the cross-examination of Vinh, which was in progress when the final version of the Cross-Claim was produced.
Stephanie's counsel having raised the issue previously, the first Defendant was reminded by the Court that there were likely to be costs consequences by the decision having been taken as late as it was to serving the proposed Cross-Claim and obtaining leave to file the Cross-Claim. (In light of my conclusions and the costs order that was agreed in the event of those conclusions, the costs thrown away do not arise.)
Since Jessie did not oppose the filing of the Cross-Claim, I have treated her response to it as a submitting one.

[5]

Some General Matters

The Court is required to determine, on the balance of probabilities, taking into account the matters enumerated in s 140(2) of the Evidence Act 1995 (NSW), which version of events that are in contest is the more likely and plausible. Those matters are (a) the nature of the cause of action or defence, (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
It is also necessary to bear in mind the careful scrutiny to which evidence about conversations with, or between, one, or other, of the parties, and the deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544, per Isaacs J, at 548-549. This is because he is unavailable, at the hearing, to admit, or directly deny, specific allegations.
McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].
It is also necessary to remember the oft-cited dictum of McLelland CJ in Eq from Watson v Foxman (1995) 49 NSWLR 315 at 319: "Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
This dictum is relevant in the circumstances of this case when one also has the added sub-stratum of a cordial familial relationship that existed between Stephanie and Vinh, particularly between 2005 and 2009.
Also, a Court, in cases involving events, some of which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160, at [157] (Martin J); Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) at [15] - [22].
More recently, the Court of Appeal in Queensland wrote, in Guirguis Pty Ltd v Michel's Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83, at [50]-[51]: "Most experienced judges subscribe to the view expressed by Goff LJ in Armagas Ltd v Mundogas SA (The "Ocean Frost") that it is essential 'when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities'. Goff LJ was referring to cases of fraud, but the statement is of general application. As Goff LJ observed in the same passage: 'It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.' This is not a recent revelation. About 60 years earlier, for example, Atkin LJ, after observing that 'an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour', confirmed that trial judges were encouraged 'to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events'. The primary judge's failure to consider and make findings about many aspects of the evidence, including evidence relevant to causation, deprived his Honour of those important tools for judging the credibility and reliability of the contentious oral evidence." (Citations omitted)
I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, at 431: "'Credibility' involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
The circumstances of this case, also make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122-123 (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15, at [15]), appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time."
In this case, because of the view I take of Stephanie's evidence, and also, in one particular respect, of Vinh's evidence, I shall place much more reliance on contemporaneous documents, as, in my view, those documents reveal a much more probable account of the events that had occurred and assists in assessing the reliability of the evidence given by Stephanie and by Vinh.
Also, because it may be relevant, particularly to both Stephanie's and Vinh's evidence, what O'Loughlin J had written in Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; (2000) 103 FCR 1, at [118] and [121] is relevant: "Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions. … A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected."
In other words, a lie does not necessarily prove the opposite of the lie even though, depending on the subject matter and its significance in the case, it may indicate a consciousness on the part of the witness that the truth would not have assisted her or his case, or may amount to evidence that is corroborative of other evidence: Tobin v Ezekiel (2012) 83 NSWLR 757 at 775; [2012] NSWCA 285, at [60].
What Kirby J, although in dissent, wrote in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48, at [119]-[120], must be remembered: "… Some judges in the past regarded untruthful evidence - even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that the falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned. Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law." (Footnotes omitted)
Also, as was written by Emmett J (as his Honour then was) in Warner v Hung; Re Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56 at [48]: "... When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2)."
In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, also expressed the view, at [44] - [52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with "a probability in excess of 50%". His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426, at [126].
In reaching my conclusions, I have considered the inherent probabilities, aided by contemporaneous documents that are not disputed, circumstantial evidence tending to support one account as opposed to the other, and the overall impression of the witnesses.
As will be read, there was a flurry of communications between lawyers for Stephanie and for Vinh in 2011, following which Stephanie did nothing to assert a claim until a caveat was lodged in 2016. She asserted a lack of financial capacity to do so.
Recently, in Hintze v Tsering [2018] NSWSC 1190, Sackar J dealt with the issue of remaining silent when speech could have been expected, or failing to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected. In this case, the allegations of not having signed the Transfer, and of not being aware of the transfer of the Guildford property out of her name, are matters of some significance.
I respectfully adopt what his Honour wrote at [58] - [61]: "It is well established that remaining silent when speech could have been expected, or failing to raise a matter in correspondence where the relationship between the parties is such that a particular reply might be expected, may amount to an admission, and is at least relevant evidence. A failure to complain regarding breach after becoming aware of the true facts may enable the court to infer that the conduct was not relied on. A failure to complain may adversely affect the credibility of a witness. A failure to complain may also be relevant for the element of reliance in estoppel, or the adoption of the relevant assumption." (Citations omitted)
In relation to the arrangements or agreements between family members, I have remembered what was written by Brereton J (as his Honour then was) in Ashton v Pratt (No 2) [2012] NSWSC 3 at [29] - [36].
In relation to what is said to have been agreed between Stephanie and Vinh, regarding the payment of $30,000, in respect of the Guildford property, and the repayment of the loan of $30,000 and $5,000 of interest, whilst there is a rebuttable presumption of fact that arrangements, or agreements, made in a family, are not intended to have legal force (see, Darmanin v Cowan [2010] NSWSC 1118, at [206]), as will be read, I am satisfied that at the time of making the agreement, in each case, the parties did regard their arrangements in terms of legal consequences.

[6]

Background Facts

Next, I set out a chronology of the background facts that are not substantially in issue, or which I am satisfied, based upon the evidence, is established on the balance of probabilities.
The deceased was born in Haiphong, Vietnam, in April 1941. He was of Chinese ethnicity.
On a date not disclosed in the evidence, he formed a relationship with Thuan Thi Tran ("Tran"), who was also born in Haiphong, Vietnam. She was born in February 1952. The four children of their relationship have been referred to above.
(There is a dispute about whether the deceased and Tran were married, Stephanie asserting that she understood that they were, whilst Jessie says that they were not. Nothing turns on this dispute of fact, as all parties agreed that Tran was an eligible person in relation to Stephanie's claim for a family provision order.)
In 1979, the deceased, Vinh, and Jessie, left Vietnam and moved, as refugees, to Hong Kong. It was necessary for the deceased to sell all of the family's possessions and to obtain a loan to purchase, and reserve, four seats on the boat. (Subsequently, Tran refused to, or did not, leave Vietnam. Again, the dispute about this fact is irrelevant to the determination of these proceedings.)
They were granted refugee status, in about 1980, in New Zealand. In about 1982, Tran joined the rest of the family in New Zealand. There, as stated previously, two of the children were born. In about 1987, the whole family moved to Australia.
Initially, after moving to Sydney, the family lived in Marrickville, where they lived in rented accommodation. In about 1989 or 1990, they moved to other rented accommodation in Punchbowl, and then, in 1993, to Croydon Park, where they also lived in rented accommodation.
The deceased and Tran were said to be not well educated. The deceased's English was poor, but he spoke the Cantonese, Mandarin and Vietnamese languages.
The deceased was employed, casually, as a Community Volunteer for the Ashfield Community Centre working one day a fortnight providing assistance to elderly people in the Chinese community on outings, or by assisting them with medical appointments or shopping trips.
Stephanie stated that, during her childhood and school years, she did not remember the deceased working in paid employment on a regular basis. She did recall his volunteer work.
Jessie gave oral evidence that the deceased suffered from a number of medical conditions which resulted in his inability to work more than casually: T215.45 - T215.50. (She was not cross-examined on this evidence.)
How the deceased came to be a member of the HESTA Superannuation Fund was not the subject of any evidence. In any event, subject to what I shall say later regarding Stephanie's evidence on this topic, which evidence I do not accept, it seemed to have been accepted, by all the parties, that, for almost all of his time in Sydney, he, and whilst they were together, Tran, was each in receipt of social security benefits.
There is evidence that the deceased received, in the financial year ending 30 June 2005, by way of disability support pension, the amount of $10,607.88; that he received, in the financial year ending 30 June 2006, by way of disability support pension, the amount of $8,112, and by way of age pension, the amount of $2,533; that he received, in the financial year ending 30 June 2007, by way of age pension, the amount of $11,404; that he received, in the financial year ending 30 June 2008, by way of age pension, the amount of $11,397; that, he received, in the financial year ending 30 June 2009, by way of age pension, the amount of $12,803; that he received, in the financial year ending 30 June 2010, by way of age pension, the amount of $16,771; that he received, in the financial year ending 30 June 2011, by way of age pension, the amount of $17,177; that he received, in the financial year ending 30 June 2012, by way of age pension, the amount of $18,381; that he received, in the financial year ending 30 June 2013, by way of age pension, the amount of $19,095; that he received, in the financial year ending 30 June 2014,by way of age pension, the amount of $20,079; that he received, in the financial year ending 30 June 2015, by way of age pension, the amount of $20,733; and that he received, in the financial year ending 30 June 2016, by way of age pension, the amount of $12,931.
Tran, it would seem, was not employed and attended to the household duties. Stephanie said that Tran "would work, from time to time, for friends - the work was casual and irregular and I believe that the pay was minimal".
Jessie gave poignant evidence, stating that: "[M]oney was tight and on occasion we would receive assistance from the Smith family for clothing … Although we were not financially well off, we had all the necessities through [the deceased's] careful budgeting. ... [The deceased] gave us spending money to cover reasonable expenses such as movie tickets, meals and sometimes a little extra for miscellaneous."
In 1999, after an argument with the deceased, Tran left the family home. The family members did not know to where she went, or where she remained, for about a year. Then, she and the deceased met, unexpectedly, and Tran agreed to return to the Croydon home.
When she returned, the deceased moved in, for a short time, with Vinh, who was living in a property at Bankstown, which he and Jessie had purchased together. A short time later, the deceased moved back to the rented accommodation at Croydon.
Stephanie commenced working part-time in 1998, at the age of 14 years 9 months at a fish and chip shop. She worked, on Thursday nights, for about 4 hours, and sometimes on the weekend.
Stephanie left school, whilst in Year 11, in about 2000, and then began working, full-time, as a cashier at Woolworths, and then as a shop assistant. She moved away from the home of her parents in early 2004 and lived in rented accommodation with a man called Gene: T66.11 - T67.04.
Stephanie moved back to live with her parents, at Croydon in 2005: T67.50 - T68.01.
In 2008, Stephanie began a relationship with a Greek Australian, Anthony Papas. She moved to Brisbane, meeting him there, in late February 2009. They were married, in Sydney, in 2011: T39.42 - T39.49.
Tran is still alive, but has played no part in these proceedings. Indeed, Jessie wrote in an affidavit sworn on 22 May 2017, and confirmed that she has not had any contact with Tran (or with Stephanie) "for over 10 years", including, in respect of Stephanie, "in the last couple of years that she lived with [her] father at the Guildford house": T212.28 - T212.38.
Stephanie, who appears to have maintained contact with Tran, indicated by her counsel, that "Tran resides in Sydney; that she is aware of these proceedings but does not wish to be involved or make a claim against [the deceased's] estate; [and] [s]he does not wish to disclose her address to the Defendants": T106.31 - T106.46.
The deceased left a duly executed Will that he made on 15 December 2015. In that Will, he appointed Jessie to be the sole executor of his Will and sole trustee of his estate. This Court granted Probate of that Will to Jessie on 8 September 2016.
By Clause 5 of the Will, the deceased left the whole of his estate on trust to sell, call in, and convert it into money; to pay all debts, funeral and testamentary expenses, including all duties and taxes payable in respect of the estate; and, then, gave the residue, as to 55 per cent, to Vinh; 35 per cent to Jessie; 5 per cent to Stephanie and 5 per cent to Simon.
Since Simon died more than 30 days after the deceased, he attained a vested interest in the deceased's estate: Clause 4 of the Will. The parties agreed that in the event an order for provision is made for Stephanie, that Simon's share of the residue should not bear any part of the burden of that provision: T31.38 - T31.44. (That concession was subject to the determination of the Cross-Claim filed by Vinh: T221; T255.45 - T256.04.)
In the Inventory of Property attached to, and placed inside, the Probate document, there was no property said to be solely owned by the deceased at the date of his death. However, the Guildford property was disclosed as being owned by the deceased (as to 95 per cent) and Vinh (as to 5 per cent) as tenants in common.
The value of the Guildford property, as disclosed in the Inventory of Property, was said to be $850,000. Accordingly, as disclosed on title, the deceased's percentage share would have had a gross value of $807,500 (without any costs and disbursements of sale).
At the hearing, the parties, ultimately, agreed that, subject to the competing claims as to beneficial ownership, what was said to be the deceased's 95 per cent share of the Guildford property was the only asset of the deceased's actual estate and that the total value of the Guildford property, at the date of hearing, should be taken to be $940,000.
It was also agreed that the estimated costs and expenses of sale of the Guildford property were $27,500, with the result that the percentage share of the deceased in the Guildford property would have a value of $866,875 (being 95 per cent of $912,500): T103.23 - T104.01.
From that amount, the debts of the deceased's estate ($29,521) would also have to be paid, leaving an estate with an estimated value of $837,354, before the costs of the proceedings, if an order for costs is made, are deducted: T104.03 - T104.12.
As set out above, subject to the Cross-Claim, the parties also agreed that Simon's share (5 per cent) of the estate, before costs are deducted, should be paid to his estate. That share, if the deceased's interest in the Guildford property remained as part of his actual estate, equates to $41,867.
Taking all these deductions into account, the net value of the deceased's estate, if any, without any costs of the proceedings being deducted, would be $795,487.
The parties agreed that if both trust claims failed, and if a family provision order were made, it should be by way of an increased percentage of the residue of the estate (bearing in mind she is entitled to 5 per cent of residue under the Will of the deceased): T19.10 - T19.22; T31.
I am satisfied, should it be necessary, that this is an appropriate way to proceed as there is a dispute about the true market value of the Guildford property.
(In coming to the conclusion as to the method of calculating any family provision order, if any is to be made in favour of the Plaintiff, I have remembered that McDougall J in Bouttell v Rapisarda [2014] NSWSC 1192, at [96], raised the concern that "to make provision by way of a share, the value of which can only be ascertained until after realisation of all the estate's assets, runs the very real risk of under-providing (or over-providing) for [the applicant's] needs".
Whilst this is undoubtedly true, it seems to me that in some cases, for example where the estate has a value that cannot be precisely determined because of the volatility of the real estate market, to make a lump sum order will not be the most appropriate way of determining what is "proper" in all the circumstances of the case. In this way, both the Plaintiff and the beneficiaries would benefit if the Guildford property were sold for a price greater than had been agreed for the purposes of the hearing, and each would be detrimentally affected if it sold for less than the agreed figure. There would also be certainty of the price, the costs and the expenses upon which calculations could be made. It cannot be forgotten that the actual value of the estate is a relevant consideration in determining the adequacy and propriety of the provision. Furthermore, the Act, in s 65(2), specifies the ways in which provision may be made, and includes, "in any other manner the Court thinks fit".)
The only eligible persons are the three children of the deceased and Tran, who is described by Jessie as the "former de facto partner of the deceased". Only the Plaintiff has made a claim for a family provision order.
There was no evidence that Simon, or Tran had been served with a notice of the Plaintiff's application and of the Court's power to disregard his, or her, interests, in the manner and form prescribed by the regulations or rules of Court. In regard to Simon, that omission has not caused a problem as he has died and there is an agreement between the parties that his share of residue will not bear part, or all, of the provision, if any, made for Stephanie.
In view of the statement made by counsel for Stephanie, which was treated as an agreed fact, in all the circumstances, the Court will disregard the interests of Tran, as a person by, or in respect of whom, an application for a family provision order may be made but who has not made an application as service of the prescribed form of notice upon her is unnecessary.
Jessie, whose affidavits were read, and who was cross-examined, did not disclose any information about her financial resources and needs in her affidavits, but did provide evidence regarding why she had a legitimate claim on the bounty of the deceased.
As I have stated in other cases, a beneficiary is entitled to elect to remain silent about her financial resources and needs and simply look to the Court to not disregard the deceased's freedom of testamentary disposition and his preferable disposition to her as a beneficiary regardless of her financial resources or needs. The Act specifically provides that her, interests, as a beneficiary, cannot be disregarded, even though she has not made a claim: s 61(1). She is entitled to rely, as a chosen object of the deceased's testamentary bounty, upon the terms of the Will.
Recently, in Amos v Hogg [2018] NSWSC 1226, at [33] - [42], I summarised the relevant principles, and, also, I repeated what I had written in Sammut v Kleemann [2012] NSWSC 1030, at [137] - [140], on this topic. In summary, the Court is entitled to infer that the beneficiary has adequate resources upon which to live and that she does not wish to advance a competing financial claim upon the bounty of the deceased. However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind.
Thus, even if the Court may infer that the beneficiary has no need for provision from the estate of the deceased, and, that, on a comparative basis, she is better off than the Plaintiff, her silence does not mean that her competing claim should not be evaluated. What is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the financial circumstances of the parties and of the beneficiaries.

[7]

Costs and Disbursements of the Proceedings

Usually, in calculating the value of the deceased's estate available out of which a family provision order may be made, the costs of proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the proceedings, normally, will be entitled to an order that her and his costs, calculated on the indemnity basis, should be paid out of the estate.
As Basten JA put it in Chan v Chan [2016] NSWCA 222, at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
However, as I have repeated many times, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.
In an affidavit affirmed on 26 June 2018, by Mr S J G Nicolau, the Plaintiff's costs and disbursements, including the costs of mediation, to the conclusion of a 2 day hearing, calculated on the ordinary basis, were estimated to be "approximately $100,000". Mr Nicolau also estimated that "approximately 40% of the costs have been incurred devoted to matters arising out of a claim for family provision and 60% of the costs have been devoted to the other issues raised in the proceedings".
(As the hearing, in fact, took 3 days, and Mr Nicolau's affidavit was affirmed after the first day of the hearing, presumably he was intending to provide an estimate of the Plaintiff's costs to the conclusion of that 3 day hearing. Regardless, on the second day of the hearing, counsel for the Plaintiff and for the Defendants each accepted that the costs of the Plaintiff were estimated to be $100,000: T104.36 - T104.47.)
Mr Nicolau gave no evidence that his firm had entered into a conditional costs agreement with Stephanie. Indeed, no hint of such an agreement in relation to her costs was given at any time, until Stephanie, herself gave evidence of her belief that she would not have to pay costs to her solicitors if she was unsuccessful: T121.10 - T121.38.
On the third day of the hearing, having made enquiries of his instructing solicitor, counsel for Stephanie informed the Court that there was, in fact, "no conditional costs agreement between the Plaintiff and her legal representatives. The understanding between them is that, in the event she has to pay her own costs, she will not be sued to recover those costs by her own legal representatives": T199.00 - T199.05.
In an affidavit sworn on 14 June 2018, by Ms N Audisho, the Defendants' costs and disbursements, including the costs of mediation, to the conclusion of a 2 day hearing, calculated on the indemnity basis, were estimated to be $133,180.
No affidavit was relied upon updating the costs and disbursements as the hearing took 3 days. However, the Court was informed, without objection, by counsel for the Defendants, that the estimated costs and disbursements for the extra day of hearing would be $6,820, making the total estimated costs and disbursements $140,000
Not all of the Defendants' costs and disbursements, would, necessarily, be payable out of the deceased's estate, as only Jessie, as the executrix to whom Probate has been granted, is the party representing the estate of the deceased. Furthermore, Vinh, by his Cross-Claim is making a claim against the deceased's estate and one that seeks to protect his own interests.
Whilst the estimates that have been given provide some basis for calculating the total of the legal costs and disbursements that may have to be paid out of the deceased's estate before any distribution of that estate can take place, it is to be remembered that they are estimates only.
In this case, the parties' legal representatives made submissions on the question of costs as neither party had served an Offer of Compromise or a Calderbank offer. I shall, therefore, deal with the issue of costs later in these reasons.
The parties also agreed, subject to the competing trust claims, that, in the event the costs estimates prove accurate, and if an order is made that the costs are to be paid out of the deceased's estate, and if the deceased's interest in the Guildford property does form part of his estate, the value of the estate, out of which an order could be made, would be about $555,487: T105.14 - T105.33.
Accordingly, if the trust claims fail, this is an estate of modest value, particularly if the costs estimates prove accurate and an order for the costs to come out of the estate is made.
By the conclusion of the submissions, it became clear that Stephanie's case would be determined by reference to the claims made in relation to the beneficial ownership of the Guildford property and upon the amount, if any, to be repaid to Stephanie by reason of her agreement with Vinh for reimbursement of amounts paid towards the mortgage debt secured on the Guildford property ($30,000) and the loan made to her in August 2009 ($30,000) and interest ($5,000) on that loan.
It was accepted that if Vinh was successful on his claim for a resulting trust, there would be no estate out of which an order for additional provision could be made for Stephanie because the beneficial ownership of the Guildford property would be held for him. It was not suggested that the Guildford property, or any part of it, if held on trust for Vinh, could be designated as notional estate of the deceased, or that there was any other property, of sufficient value, that could be so designated, to enable an order for additional provision to be made in her favour.
Vinh and Jessie also agreed that in the event that Stephanie failed completely, neither would seek an order for costs to be paid by her: T255.12 - T255.20.

[8]

The Pleadings

Leaving aside the claim for a family provision order, Stephanie's claim that the Guildford property was held in trust for her was based upon the registration of the Transfer in 2009 "by fraudulent means". It was put, in Stephanie's opening written submissions, that: "22. The Deceased and the first defendant forged the plaintiff's signature on the subject Transfer which was subsequently 'witnessed' by a person the plaintiff had not seen since about 1995. It is understood that the defendants concede that the 'witness' to the Transfer was not present at the time the plaintiff allegedly signed the Transfer. 23. The circumstances under which the Transfer was registered amounts to 'fraud' as a recognised exception to s42 of the Real Property Act 1900 and the interests of a bona fide purchaser or mortgagee without notice are not affected."
Stephanie also pleaded that: 1. She had not received any consideration for the Transfer of the Guildford property to the deceased and Vinh; 2. She had not agreed to transfer her interest in the Guildford property to the deceased and Vinh; 3. She had not authorised registration of the Transfer or any transfer by which she was deprived of her interest in the Guildford property; 4. In the circumstances, the deceased and Vinh held, and hold, their respective interests in the Guildford property on trust for her.
These, and other allegations relating to the financial contributions by Stephanie to the purchase of the Guildford property, were the subject of evidence by Stephanie. I shall deal with these allegations as it is necessary to determine whether she has established the allegations and also in order to calculate the contributions to the purchase price of the Guildford property made by the parties as part of the determination of the Cross-Claim.
No submissions were made concerning the allegation in the Statement of Claim, that between 1998 and 2005, "the deceased represented and promised to the Plaintiff that if the Plaintiff gave money she earned to the deceased, the deceased would buy real estate for the Plaintiff", and that "[o]n many occasions from the time the Plaintiff first obtained casual employment in about 1998 until about 2005 and in reliance on the promise made by the deceased, the Plaintiff gave money she earned to the deceased".
Presumably, this was because there was simply no evidence of any such promise made by the deceased, with the result that such a claim, if persisted with, undoubtedly, would have failed. That aspect of Stephanie's claim could not succeed and it may be ignored.
In defence of Stephanie's trust claim, and in support of his trust claim, Vinh relied upon the payments that he said he had made, and which Stephanie did not admit, to the purchase of the Guildford property at the time of its initial purchase in 2005, his payment of the amount due under a mortgage secured on title to the Guildford property, which mortgage debt Stephanie would have been obliged to repay, and payments made by him after the transfer of the Guildford property into the name of the deceased and himself in 2009.
Vinh also asserted that Stephanie was estopped, by her conduct, from denying that he and the deceased held the legal and beneficial interest in the Guildford property after its transfer to them. He relied upon "laches and delay".
In relation to the loan of $30,000, Vinh did not dispute that Stephanie had lent him $30,000 in about August 2009. He also admitted that he had agreed to pay $5,000 by way of interest to her. He did not admit that the amount borrowed was to be repaid by the end of the 2009 calendar year or that the loan was to attract interest "at the rate [Stephanie] would have received if [the amount] had remained on deposit with Rabobank Australia Limited in a 'Rabodirect High Interest Savings Account'".
By way of defence to Stephanie's claims for the loan and interest amounts, Vinh also asserted that the claim for repayment of the loan was not maintainable as the claim was brought more than 6 years from which the loan was made. In addition, he pleaded "laches and delay". He simply denied that in breach of the loan agreement, he "had refused, failed or neglected to make the payments required at the end of the 2009 calendar year or at all".
(It should be noted that the agreement for the loan of $30,000 and the $5,000 interest payable in respect thereof, made in about August 2009, was different from the amount of $30,000 that Vinh had agreed to pay to Stephanie in about April 2009, as reimbursement for part of the payments she had made towards principal and interest between the date of the purchase of the Guildford property and the date of its transfer out of her name into the name of the deceased and himself, after taking into account the value of the accommodation that she had received.)
Jessie's amended Defence to the Statement of Claim broadly echoed Vinh's defence.

[9]

The Purchase of the Guildford Property

The following matters should be regarded as the factual findings of the Court. Some are not in dispute between the parties, but to the extent that any are, I have carefully considered all of the evidence, particularly the documentary evidence, in stating what follows, as the findings of the Court.
The deceased encouraged his children to purchase property as a means of getting a start in life. In about 1995, the deceased organised for Vinh and Jessie to purchase a property, at Bankstown, for $184,000: T181.18 - T181.20. They obtained a loan for $120,000. Following its purchase, Vinh occupied the property and continued to do so until it was sold. The property was registered in their names. Vinh and Jessie were working and they shared the mortgage debt repayments.
How the balance of the purchase price of the Bankstown property was made up is not precisely known. The Defendants' submissions, at Paragraph 12, state that "the balance [was] from savings that Vinh and Jessie had accumulated". Nothing turns on this omission.
Whilst Vinh denied that their parents contributed the balance, he did not identify the source of the balance: T181.28 - T181.33.
This property at Bankstown was sold in about May 2014 for $649,000. After adjustment of council rates ($317) and water rates ($191), the payment of legal costs ($873) and a debt to the ANZ Banking Group Limited ($204,737.36), the amount of $410,423 was sent to Vinh and Jessie. Vinh gave evidence that of that amount, he paid Jessie $50,000 and used part of the balance to pay off the mortgage debt on the Guildford property: T182.03 - T182.16. He did not disclose how the amount paid to Jessie was calculated.
In about 2004, the deceased told Jessie and Vinh that he was going to encourage Stephanie and Simon to purchase a property. Later, the deceased told Vinh that he had spoken to them, that they had agreed to do so, that he would look for a property for them to purchase, and that they would be responsible for the repayment of the mortgage debt secured on the title to any property that was purchased.
The deceased also told Vinh that he (Vinh) would have to pay the deposit and also be the guarantor for the loan to be obtained by Stephanie. He said that the three would have an interest in any property that was purchased as Vinh "is putting himself at financial risk by being a guarantor".
The deceased also said that the property would be purchased in Stephanie's name, alone, as she would be entitled to the First Home Owner's Grant. He said that, later on, a property would be purchased by Simon, who, then, also would be entitled to the First Home Owner's Grant.
Vinh agreed to help in the purchase, by providing the deposit and giving a guarantee. Neither Vinh's, nor Jessie's, evidence, on these matters, was challenged and, in any event, are supported by what actually occurred.
Counsel for Stephanie asked Vinh, and also, Jessie, a number of questions regarding the deceased "organising" the purchase of property for his children: T181.18 - T181.20; T213.11 - T213.21. When each answered that the deceased had done so, counsel did not ask any further questions about what steps the deceased had performed.
When Jessie gave her evidence, the Court enquired of her what the deceased had done in relation to the purchase by her and Vinh of the Bankstown property and she said that in relation to the property purchase, that included "looking for properties … going with Vinh to inspect properties, and attending a solicitor's office to arrange the sale of the property and going to the bank": T215.22 - T215.24.
Jessie also gave the following evidence at T215.32 - T215.43: "Q. Did you know anything about the steps that your father took in relation to the purchase of the Guildford property from your own knowledge? A. From my knowledge. He was looking in newspapers. Asked Vinh to go and inspect properties and arranging the transfer again, the solicitor's office and also attending the bank, the same steps. Q. Anything else? A. No. Q. Did your father ever tell you that he had made any financial contribution to the purchase of the Guildford property? A. No."
In about May 2005, the deceased located the Guildford property and suggested that it be purchased. The purchase price was $430,000. He told Stephanie about the Guildford property but she did not go to inspect it.
The acquisition of the Guildford property appears to have been fairly straightforward. There is in evidence, a copy of a Trust Account Receipt dated 2 June 2005, from L J Hooker, Guildford, addressed to "Stephanie Co and Simon Co", showing the receipt of $43,000, "by cash", which was described as the deposit of 10% on the Guildford property. The receipt states that the money was received from Stephanie and Simon, but it was not suggested by Stephanie that either she, or Simon, had actually paid, or otherwise contributed to, the deposit. The name of the vendor and her solicitor, and the name of "the Purchaser's solicitors", Andresakis & Associates, were identified.
Also in evidence is a handwritten "Deposit Receipt", dated 8 July 2005, from the Commonwealth Bank, Ashfield, the account name being "Stephanie Co", the account identification number being shown, and $110,000, shown as the amount of the deposit. (There is a corresponding deposit in Stephanie's Streamline Account with the Commonwealth Bank, showing $110,000.)
Vinh says, and his evidence was not challenged, that the deposit receipt was in his handwriting. He also said that he paid the whole of the amount at the Commonwealth Bank Ashfield, into Stephanie's account.
Vinh's evidence on the topic of the source of the deposit and the amount of $110,000 was vague in the extreme. He said, in relation to the deposit, that it had come from cash withdrawals that he had made from his income which had been deposited in the bank.
He had been served with two notices to produce (Ex. SP 8), in each of which he was required to produce "any document identifying the source or sources from which you obtained the cash in the sum of $43,000 … and the cash in the sum of $110,000".
On the third day of the hearing, in re-examination, he produced some documents, which had not previously been produced, in response to the notices to produce, going to the source of the payments. In one, (Ex. VTC 8), being a Savings Maximiser Statement, in his name, for the period from 1 April 2005 to 30 June 2005, there was a withdrawal of $20,000 on 21 June 2005. Other documents (Ex. VTC 9), being a Streamline Account in his name, for different periods, most of which were in 2005, showed withdrawals of $800 (particularly in 2003) from the account. In the period 1 March 2005 to 31 May 2005, there transfers to another account of $1,500, $2,000, $2,000, $1,500, $2,000, $1,500 and $2,000 (a total of $12,500) and between 1 June 2005 and 4 August 2005, withdrawals of $2,500, $1,000, $1,500, $1,500, $1,200, and $2,000 (a total of $9,700). (I have omitted the reference to the withdrawal of $20,000 which was transferred into the account from the Savings Maximiser Statement.)
Whilst it is clear that these documents do not show withdrawals that total $153,000, Vinh maintained that he paid that total amount. Whilst he was asked questions about the source of the funds, it was not put to him, specifically, that he did not make the payments.
Had the matter been left there, there may have been a real question about whether Vinh had satisfied the Court that he had made the payments. But the matter was not left there. There is simply no other person who would have been able, and likely, to contribute to the purchase price of the Guildford property, other than Vinh.
Stephanie did not establish that she had contributed more than the amount of her borrowing, or that she had caused anyone else to contribute to the balance of the purchase price on her behalf. Her suggestion that the deceased had contributed is only speculation, and it is inconsistent with Jessie's evidence, which I accept, that the deceased did not tell her that he had made any contribution to the purchase price of the Guildford property.
Furthermore, Stephanie's evidence that, as a teenager, she had paid all of the income that she had earned from part time work to the deceased, which he had used to build up a fund, is implausible in the extreme. Even if she did give the deceased all of her wages, from part time work, it is highly unlikely that her earnings, as a teenager, working part time, would have amounted to anything like $153,000. (In this regard, it is to be remembered that Stephanie, in 2005, was only 21 years old.)
She had stated in her affidavit in reply that Simon "did not ever make or contribute to the mortgage payments or make any payment in the nature of rent".
Jessie did not give any evidence that she had done so.
Whilst there is no direct trail of withdrawals, and there is an absence of complete documentation, that shows the path of $43,000 and $110,000 from Vinh, I am satisfied, on the balance of probabilities, that Vinh contributed these amounts to the purchase price of the Guildford property. In this regard, I am prepared to accept Vinh's evidence.
A contract for the purchase of the Guildford property was dated 28 June 2005.
Stephanie borrowed the amount of $280,000 from the Commonwealth Bank. A copy of the stamped Mortgage, dated 25 July 2005, given by Stephanie to the Commonwealth Bank, forms part of Ex. SP2. It was accepted by her that her only contribution to the purchase price of the Guildford property was the amount she borrowed ($280,000), the amount of the First Home Owner's Grant ($7,000) and the stamp duty (which had not been paid).
A Home Loan Application to Colonial (which was then a part of the Commonwealth Bank) was made by Stephanie, and also by Vinh, on a date in 2005 that is not decipherable on the documents tendered: Ex. VTC 6. In the Application, Stephanie's occupation was described as "retail manager", whilst Vinh's was described as computer operator.
Vinh signed a document, dated 29 June 2005, headed "Guarantor's Acknowledgement that Guarantor's Income is required to Service and/or Repay the Facility". On the same date, Stephanie signed a document headed "Borrower's Acknowledgement that Guarantor's Income is required to Service and/or Repay the Facility".
Andresakis & Associates, Solicitors & Attorneys, a firm located at Parramatta, wrote a letter dated 21 July 2005, to Colonial, confirming that the firm acted for Stephanie; that Contracts for the purchase of the Guildford property had been exchanged on 28 June 2005; and noted that the Contract provided for settlement on or before 29 July 2005.
Vinh, as agreed, provided a guarantee for the repayment of that loan amount. Despite the guarantee, at all relevant times, the legal liability under the Mortgage remained with Stephanie.
Andresakis & Associates sent a settlement letter dated 4 August 2005 (Ex. SP 6), addressed to Stephanie. In that document, there were adjustments of rates, council and water and some costs and disbursements identified. The "amount secured by Mortgage to Commonwealth Bank of Australia" was "$277,984.50". As well, the letter noted that no stamp duty on the Transfer had been paid and that the "First Home Owners grant paid on settlement" was $7,000. The "balance paid on settlement" was shown to be "$104,520.51".
There is a withdrawal of $103,006.46 on 5 August 2005, from Stephanie's Commonwealth Bank Streamline Account. (It is clear that this amount is part of the $110,000, which I am satisfied was deposited into her account, by Vinh, on 8 July 2005.)
There is also a deposit into her account of $1,061, on 12 August 2005, which is described as "Stamping Refund", which I infer is the amount of stamp duty that was repaid to Stephanie.
There is in evidence a copy of a stamped Transfer, dated 5 August 2005, that relates to the Guildford property, which shows Stephanie as the Transferee, the name of the Transferor, and the consideration of $430,000. The Transfer is not signed by Stephanie but by "Ping Lee, Solicitor for the Transferee". (Ms Lee was a solicitor employed at Andresakis & Associates between 2001 and 2011.)
It appears that the Transfer and the Mortgage were registered on the title to the Guildford property on about 17 August 2005: see, copy of a NSW Land and Property Information title search obtained on 23 April 2009, Ex. SP1/24.
There is a letter dated 9 August 2005, from Colonial, addressed to Stephanie, which disclosed that "your loan was funded on 5 August 2005" and that it was disbursed as follows: "Bank Cheque(s) … per solicitor's direction to pay $ 284,957.50 Bank cheque fee $ 27.00 Fee(s) paid [summarised and in total] $ 2,015.50 $ 287,000.00
I should note that when cross-examined, Stephanie admitted that: 1. In early 2005, the deceased spoke to her about she and Simon buying a property, because Jessie had, by then, moved out, she had married Marcus and they were living at Blare Athol; 2. She knew that Vinh and Jessie had bought the property in Bankstown about 9 years or so before that; 3. The deceased was concerned that, aged 20, she was not making any progress in terms of putting something down for the future; 4. The main reason that the Guildford property was registered in her name alone on the title, was that she, as a first homebuyer, would receive a first home buyer's grant and an exemption for stamp duty; 5. She had a low income, that she would not be able to look to her parents to give her anything as, they, themselves, had nothing and that one chance of advancing her position in life was to buy real estate; 6. Whilst she said she did not know what role Vinh had played in locating the Guildford property, she did know that he was the guarantor for the amount that was to be borrowed by her and secured on the Guildford property; 7. She knew that if a property was purchased and money was borrowed to enable the purchase, the amount borrowed and interest, would have to be repaid; that if her name appeared on the title, she would have to make some contribution to the repayment of principal and interest; that if there was a difference between the purchase price and the amount borrowed from the bank, someone would have had to provide that difference to enable the purchase to proceed; and that she did not have anything like $150,000, which was the difference between the amount borrowed and the purchase price. 8. She did not know whether Vinh had paid the deposit of $43,000 and the additional amount of $110,000 as he had asserted in his affidavits, but that "the family" had contributed it. Yet, she was unable to say, because she did not know, how much, if anything, the deceased had contributed or how much her mother had contributed (they being the family members to whom she had referred). 9. Later, in her evidence, she said: "Thinking back on it, my father contributed that money": T77.10 - T77.12. (She did not give any evidence of the source of the amounts that he was said to have contributed.) 10. When asked whether she was putting that the deceased had saved $150,000 by 2005, which he contributed to the purchase price of the Guildford property she said "Not the whole entire amount": T77.22 - T77.24. 11. Nowhere, in her oral evidence, did she say that she had made any direct contribution to the difference between the purchase price and the amount borrowed.
Following completion of the purchase of the Guildford property, Stephanie moved into the Guildford property, as did the deceased, and for a period of time, as did Simon.
In her first affidavit, Stephanie stated that: "An arrangement was made after the purchase of the Property for repayments of the loan to come out of my bank account. The repayments were about $2,200 each month. Once this started there was very little if any money left for my own purposes. In addition I had to budget for and pay all the outgoings such as council rates water rates electricity, so sometimes I did not have enough money to meet all of my expenses. If I asked my father for assistance he bluntly refused even though he and other family members were living in the Property. By this time, I was working full time as a shop assistant but was earning only a modest income."
Despite her evidence that the "repayments were $2,200 per month", Stephanie's documentary evidence, including bank records, showed that between 2005 and 2009, the monthly mortgage repayment that she made, between September 2005 and July 2006, was $1,762; between August 2006 and January 2007, was $1,807; between February 2007 and January 2008, was $1,970; between February 2008 and July 2008, was $2,066; and between August 2008 and April 2009, was $2,236. Her total payments were said to be $84,050: Ex. SP4.
Other evidence reveals that: 1. In the financial year ending 30 June 2004, Stephanie's gross assessable income was $25,212, from which income tax of $4,088 was deducted, leaving a net income of $21,124. In addition, she received a meal allowance of $36 (Ex. VTC 4). Excluding allowances, this equates to income of about $1,760 per month. 2. In the financial year ending 30 June 2005, Stephanie's gross assessable income was $32,042, from which income tax of $6,370 was deducted, leaving a net income of $25,672. In addition, she received meal and travel allowances which, in total, were $959 (Ex. VTC 4). Excluding allowances, this equates to income of about $2,139 per month. 3. In the financial year ending 30 June 2006, Stephanie's gross assessable income was $41,929, from which income tax of $9,127 was deducted, leaving a net income of $32,802. In addition, she received meal and travel allowances which, in total, were $1,635 (Ex. VTC 4). Excluding allowances, this equates to income of about $2,733 per month. 4. In the financial year ending 30 June 2007, Stephanie's gross assessable income was $33,965, from which income tax of $9,903 was deducted, leaving a net income of $24,062 (Ex. VTC 3 and also Ex. VTC 5). This equates to income of about $2,005 per month.
There is no evidence that Stephanie was assisted, financially, in meeting the mortgage repayments by anyone else, including her then partner, and now husband, Anthony Papas.
Vinh gave evidence that was not disputed by Stephanie, that he had assisted her financially in a number of ways. His evidence disclosed that between 8 November 2005 and 7 May 2009, he had transferred into one, or other, bank account, in Stephanie's name, amounts totalling $42,000, which were payments on Stephanie's behalf to her mortgage and interest: T228.23 - T229.16.
The conclusion that I draw from this evidence is that over the period between November 2005 and April 2009, Stephanie's contributions to the mortgage repayments totalled in the order of $42,050.
There were other amounts paid by Vinh to, or on behalf of, or for, Stephanie, which, in total, amounted to $39,562.84. The amounts which make up the total were identified and were supported by documents in evidence. It is unnecessary to descend into the detail of Stephanie's expenditure paid for by Vinh. Whilst counsel submitted that some of the amounts that had been included in reaching the amount were not admitted by Stephanie, I am satisfied, overall, that Vinh provided sufficient evidence to lead the view that I should accept that amount as having been paid for, or on her behalf, or to her, by Vinh.

[10]

The Transfer of the Guildford Property from the Plaintiff

In 2008, there was a falling out between the deceased and Stephanie and, in late February, 2009, she moved out of the Guildford property, and went to live in Brisbane with Anthony.
(The causes of the disputes between them do not warrant detailed repetition. It appears that the deceased believed that Anthony was not being respectful. Jessie denied that the cause of the dispute had anything to do with the deceased's disappointment that Stephanie was not in a relationship with a man of Chinese, or Vietnamese, ethnicity, although she did accept that the dispute concerning Anthony was "a cultural thing": T214.04 - T214.10.)
There was no dispute that Stephanie did not see, or communicate with, the deceased after she left the Guildford house in early 2009. There is also no dispute that following her departure from the Guildford property, the deceased continued to live there.
On 12 November 2008, Stephanie sent an email to Vinh, which was in the following terms: "Hi Vin I have been considering what you've told mum to tell me and I think it is too complicated. I don't want to carry the loan anymore. I have come up with a couple of suggestions. I want totally out of the current situation, the house is costing me too much and it owes me a fair bit over the past 3years. …"
(What Vinh had told Tran is not the subject of evidence in the proceedings.)
Stephanie sent another email to Vinh on 15 December 2008, in the following terms: "I've done some calculations and the total [that I have paid] comes to $50,000 over the last 3yrs. I can give you a breakdown of my calculations… I will send you photocopies of everything. I think this amount is fair. You are going to have the whole house with Simon after all. I hope this can be resolved before the end of January as I do not want to drag it out much longer. Thank you."
Stephanie stated that she did not receive any reply to her emails. However, she did not dispute that following the emails, she had spoken with Vinh saying that she "wanted to get out of the mortgage, because it was being taken out at …a bit over $2,000 a month", and that she was not "living at Guilford, and [was] planning to make a new life in Queensland with Anthony": T82.13 - T82.16.
It was agreed that he would borrow funds to pay out the mortgage debt and pay her "for the money [Stephanie had] put into the Guildford house". They subsequently discussed how much Vinh should pay her and she said "I already worked it out to be $40,000". (Coincidentally, this is very close to the amount that has been calculated above as to her contribution to mortgage repayments.)
Vinh said that he was "happy" to repay her $30,000, explaining that she had been living in the Guildford property since its purchase. According to Vinh's evidence, which I accept, Stephanie agreed, but said that "this needs to be done urgently. I don't want to keep paying the Home Loan because I don't live there and I am paying rent here".
I accept Vinh's evidence on this topic because when it was put to Stephanie that the agreement was that Vinh would pay to Stephanie "around about $30,000", Stephanie, initially, replied "I don't remember, but I think, quite possibly": T84.15 - T84.17. Later, Stephanie sought to change her oral evidence, but I do not accept her evidence in this regard. I shall refer to the reasons why later in these reasons.
There is in evidence a copy of a number of diary entries that were obtained from the diary of Ms Lee (Ex. VTC2) that are in the following terms: 1. Diary entry for 18 February 2009: "11AM Stephanie Ko (Transfer)" 1. Diary entry for 19 February 2009: "10.30 Co (transfer)" 1. Diary entry on 15 April 2009: "10.30AM Van Co (re transfer)"
It was not suggested that Stephanie attended either of these meetings with Ms Lee.
Ms Lee was not a witness in the proceedings. No criticism was made of the failure of the Defendants to call Ms Lee.
In late March 2009, Lisa Susino, a secretary who was employed by a firm called Andresakis & Associates, sent a Discharge/Refinance Authority addressed to the Commonwealth Bank to Stephanie.
Stephanie sent, by facsimile transmission, from Brisbane, the signed Discharge/Refinance Authority back on 30 March 2009. In it there was a box ticked which stated "Property sold, with expected settlement date 31/3/09". The solicitor identified as acting was Ms Lee of Andresakis & Associates.
Stephanie accepted that the Discharge/Refinance Authority was "an important document": T88.45 - T88.46. Despite this acknowledgement, she said she did not go and speak to anybody about the document, or even show it to Anthony: T88.41 - T88.43.
On 16 April 2009, Vinh set an email to Stephanie in the following terms: "Hi Steph, Commbank is being silly. Can you call them to tell them to close your home loan account because you have sold the house and that Westpac wants to take over the loan. You have to give authority for the Commbank to do this. In the meantime, I am paying too much interest when this rubbish is going on. Please do it today. Thanks Vinh"
There is a copy of the Transfer, from Stephanie to the deceased and Vinh, (on which no stamp duty was paid, as the deceased obtained the First Home Plus Grant), and which was stamped, as such, on 24 March 2009. The consideration shown was $1.00. The Transfer form made provision for witnessing the signatures of the transferor and the transferees, and each signature was shown as having been witnessed. (Apart from signatures, and the print on the document, the Transfer included the information for inclusion as typed, not in handwriting. This suggests that the Transfer was prepared in the office of Andresakis & Associates.)
Although the copy Transfer purports to bear the signature of Stephanie, she denied that she signed the original document.
There is no dispute that the witness to her signature, Yu Hua Mo, was not present when Stephanie was said to have signed the Transfer. Vinh agreed that "the person whose signature appears as the witness to what allegedly is the Plaintiff's signature on the Transfer was not present at the time": T159.23 - T159.26. He was not asked any questions about when, or how, he came to find that out. Importantly, it was not put to him that he had anything to do with arranging Stephanie's signature on the document to be witnessed. Nor was it put to him that he had forged her signature on the document, or that he knew that her signature had been forged by someone else. Finally, there was no evidence that either he or the deceased had any skill in imitating a signature.
The written statement of Yu Hua Mo, which was in evidence, made clear that her conversations regarding the Transfer were with the deceased and not with Vinh. Indeed, she specifically identified the deceased as the person who "asked me to sign".
Settlement of the "sale" of the Guildford property, pursuant to which the deceased and Vinh came to be registered on title as to 95 per cent for the deceased and 5 per cent to Vinh, appears to have been completed on 22 April 2009. The discussions relating to the proportions to be held by the deceased and by Vinh, in circumstances where Vinh was the only borrower were not disclosed.
The Settlement letter dated 5 May 2009, addressed to Stephanie, Vinh and the deceased, sent from Andresakis & Associates to the address of the Guildford property, shows that the amount of $279,237 had been borrowed from Westpac Bank, and that $270,202.69 had been repaid to the Commonwealth Bank. It also notes that that the "Balance paid to you on settlement" was $7,669.21.
Stephanie said that she did not receive a copy of the letter. Vinh accepted that he did not send her a copy of it. Whilst she may not have received a copy of the letter, I do not accept her assertion that she did not know of the Transfer of the Guildford property and what was being done to relieve her of her obligations under the Mortgage. Her assertion that "I understood that he was just going to take over the repayments of the loan; not to transfer anything else over to him" lacks credibility in circumstances where her purpose was to "get out of the mortgage".
As a result of Vinh having obtained finance, Stephanie's debt, secured by the mortgage over the Guildford property, was paid out and her mortgage was discharged. Stephanie, thereafter, was no longer obliged to make the monthly, or any, payments in respect of the Guildford property and she did not do so.
Stephanie agreed that she did not repay, in 2009, or subsequently, any amount to discharge the debt secured by the mortgage in her name that had been registered on the title to the Guildford property. She also accepted that thereafter, that "money stopped coming out of [her] account", that she "didn't have to pay or didn't pay rates anymore for the house … or any insurance … or any expenses": T90.24 - T90.33.
Vinh gave evidence of a conversation in about May 2009, which although denied by Stephanie, I consider is more likely than not to have occurred. The conversation as deposed to by Vinh was: "Vinh: 'Stephanie, the house transfer is all done now. The title is now with Westpac in dad's name and my name.' Stephanie: 'Yeah, about time.' Vinh: 'Dad has arranged a cheque for you for nearly $8,000.00. That's payment to you for the title transfer. Can you speak to dad to arrange with him when you want to pick up the cheque?' Stephanie: 'Not $8,000. It's supposed to be $30,000.00.' Vinh: 'Yeah I know. I am going to honour my agreement with you about the $30,000. You know you are using my credit card, and I am paying your phone bill, so it's not like I haven't been giving you anything yet. You still have the credit card so you can still keep spending on it, and I am going to pay the phone bill each month. And that money is extra that dad wanted to give you anyway.' Stephanie: 'Do you know what I have spent all up?' Vinh: 'I'm not sure. I haven't had the chance to check yet.' Stephanie: 'Can you let me know soon.' "
Vinh was cross-examined on the conversation and maintained that it had occurred: T159 - T160.
Whilst what occurred relating to the cheque of "nearly $8,000" subsequently, suggests dishonesty on his part, I tend to the view that the conversation to which he deposed did occur. After all, the conversation makes statements that are adverse to his interests (agreeing to honour the repayment of $30,000).
Perhaps, more importantly, it is this very conversation that led to his cross-examination on the topic of the cheque and my findings regarding his credit on that topic which I deal with next.
There is in Stephanie's evidence, a copy of a Bank cheque, dated 23 April 2009, made payable to Stephanie, in the sum of $7,669.21. On the copy that is in evidence, there is a statement "Please pay Vinh Co the sum on this cheque". The statement bears the date 15/05/09 and purports to bear Stephanie's signature. There is no doubt that it is not her signature, a matter to which I shall refer to when dealing with the credit of the parties.
On 29 April 2009, title to the Guildford property was registered in the names of the deceased and Vinh in the proportions earlier referred to. The Mortgage given to the Westpac Bank was also registered on the title.
In May 2009, Tran moved out of the Guildford property. Vinh gave evidence that she was doing so without a fuss, because "Stephanie spoke to her already and explained the property has been transferred".
On 17 June 2009, Stephanie posted a comment, on Facebook, responding to a "status update" that was posted by Vinh, in the following terms: "hey bro, hope d weather is nyc & hot & u enjoy ur tym away take care! xo"
Following the transfer of the Guildford property into the names of the deceased and Vinh, there have been repairs and maintenance, costing, in total, $21,776 spent (between September 2012 and July 2018): Ex. VTC7.

[11]

Expert Evidence about the signature on the Transfer

The person who was said to have witnessed Stephanie's signature on the Transfer was Yu Hua Mo, of Claremont Street, Campsie. She refused to provide an affidavit, and was served with a subpoena to give evidence. A statement of the evidence that she was said to be prepared to give was served upon the solicitors for the Defendants, who did not require her attendance and accepted that she was not present as a witness to the signature on the Transfer.
In further support of Stephanie's assertion that she did not sign the original Transfer, she tendered a report dated 23 August 2017 of Stephen Dubedat of Document Services Pty Limited (Ex. SP2). The report was said to have been requested "to determine the authenticity of a questioned 'Stephanie Co' signature reproduced on a Transfer document" and whether this signature was written by the same person who signed other documents provided to Mr Dubedat (which Stephanie said that she had signed).
In his report, Mr Dubedat set out his methodology, his observations and his conclusions. He acknowledged that: "[A] detailed assessment of the line quality and other finer details in these signatures is restricted by the quality of the reproductions. This has limited the comparison of these signatures to their pictorial features only, and which may preclude an unqualified opinion to be expressed as to whether or not the writer of the specimen signatures also wrote the questioned signature."
Ultimately, he concluded that: "Although there is no significant evidence to suggest that the questioned 'Stephanie Co' signature on the document Q1 is the product of a tracing or simulation type process, the poor quality of the copy has not enabled a more detailed examination to be conducted on the line quality of this signature. I have therefore been unable to conclude with any certainty whether the questioned 'Stephanie Co' signature reproduced on [the copy Transfer] is genuine or not".
The Defendants' solicitors obtained the services of Michelle Novotny, a senior forensic document and handwriting examiner with Forensic Document Services Pty Ltd. Before preparing any report, and upon the basis that the original Transfer was not available because it was said to have been destroyed, Ms Novotny advised that "[T]his presents a significant limitation to the examination and, therefore, to the strength of the conclusion that can be reached." Ms Novotny also stated that the estimated cost of preparing a report would be between $8,800 and $11,100.
The Defendants' legal representatives decided that they "did not see any point paying between $8,800 and $11,100 for an inconclusive report".
To accept that Stephanie did not sign the Transfer would require the conclusion that her signature thereon was forged (as she asserted it had been). Whilst such an allegation can be established on the balance of probabilities, as previously stated, where, in civil proceedings, an allegation is made of criminal misconduct, that standard should be applied flexibly, taking into account s 140(2) of the Evidence Act.
In the present case, the burden rests on Stephanie to establish the forgery. Cogent evidence of forgery is required. Mere suspicion cannot be elevated to proof of forgery. In my view, she has not satisfied that burden.
In any event, I do not accept Stephanie's evidence that she did not sign the original Transfer. However, her signature on the Transfer was not, in fact, witnessed by the person who signed it as an attesting witness.
In coming to the conclusion regarding Stephanie's claim, the Court must look at the whole course of dealing between, and the conduct of, Stephanie and Vinh. The reasons for not accepting Stephanie's denial that she signed the Transfer are as follows: 1. It was Stephanie who wished to avoid having to continue to make the mortgage repayments on the Mortgage registered on title to the Guildford property in her name; the method chosen to achieve this was for Vinh to pay out the mortgage debt. If as I have found, he paid $153,000 towards the purchase price, for reasons to which I shall come, Stephanie held part of the Guildford property on resulting trust for him. 2. She had reached an agreement with Vinh as to the repayment of the balance of the principal and interest, and that he would reimburse $30,000 to her, for part of her contribution to the mortgage debt; the total amount that she had paid was reduced because she had lived in the Guildford property since its purchase over 3 years earlier; effectively, the agreement that she reached was that she would be in a similar position, as she would have been, had the Guildford property not been purchased. 3. There was no reason for Stephanie to mislead the Bank about the nature of the transaction when she sent it the document on 30 March 2009. After all, she was seeking to discharge the Mortgage and pay out the entirety of the debt. I am satisfied that the document, which she did not dispute that she signed, revealed her true intentions and those of Vinh in relation to the Guildford property. It is highly unlikely that she was under any misapprehension about the nature of the transaction. 4. Stephanie had no reason not to sign the Transfer. As she indicated to the Commonwealth Bank, there was to be a sale of the Guildford property. The sale would have required a Transfer to have been signed by her. 5. Stephanie admitted that the signature "looks like my signature but it's, yeah, it's not something I signed": T123.21 - T123.23. That evidence is less than emphatic. However, in her first affidavit she had not denied having signed the Transfer but had written "I do not believe that I ever signed such a transfer". That statement, in my view, also lacked conviction. 6. Following the events of 2009, there was a general lack of activity by Stephanie in relation to the Guildford property. By the time the demand was made, in mid-2011, for the repayment of the loan made to Vinh in August 2009, her solicitor had obtained a title search and had informed Stephanie that the Guildford property was no longer in her name, and that it had been transferred into the names of the deceased and Vinh. (Stephanie gave evidence of having seen documents that led her to know that Vinh had borrowed money and paid out the debt secured on the Guildford property: T91.13 - T91.32.) 7. Her assertion was that "in the course of consulting [with the solicitor], I stated that I was the owner of [the Guildford property]". It would have been extraordinary for her solicitor to not assert Stephanie's lack of knowledge of the transfer of the Guildford property, if, having been told about the contents of the title search, Stephanie had said to the solicitor that she was unaware that a Transfer of the Guildford property had occurred. Similarly, her statement that "I did not ever agree to transfer my interest to anyone for one dollar" was probably correct (as to the part relation to the amount), but it was untrue in relation to the agreement to transfer the Guildford property. 1. Yet, despite her assertions, and what she was told by her solicitor, in the correspondence sent by her solicitor, it was not asserted that Stephanie was unaware of the Transfer of the Guildford property to the deceased and Vinh or that she believed that she was the owner of the Guildford property. (Counsel accepted that Stephanie had known about how the title of the Guildford property was held in July 2011: T242.36 - T242.47.) Nor was there any suggestion made that she had not signed a Transfer of the Guildford property. It would be highly improbable for the solicitor, now, to have made the assertion had she been given instructions that permitted the assertion to be made at that earlier point in time. 1. The solicitor, Ms Pham, was not called as a witness in Stephanie's case. Other than the correspondence, to which reference has been made, none of the solicitor's file was put into evidence. 2. The statement in Stephanie's first affidavit that in 2011, she "was not in a financial position to attempt to investigate transactions, to litigate or otherwise resolve matters with [Vinh] or to ascertain and enforce my rights" does not explain why her asserted lack of knowledge of the Transfer was not made known to the deceased and Vinh in 2011. Indeed, it was only asserted, for the first time, after the death of the deceased, and about 5 years after her solicitor had obtained the title search and had told her that the Guildford property was no longer in her name and had been transferred into the names of the deceased and Vinh. 3. There was no evidence given concerning whether Yu Hua Mo, or for that matter, the deceased, or Vinh, knew of the significance of the attestation of Stephanie's signature on the Transfer or even that the Transfer was to be submitted for registration.
In all the circumstances, I am satisfied that Stephanie did sign the Transfer and return it to the solicitors who were acting on the transaction, with knowledge of the meaning and effect of the Transfer. I find her statement that she did not sign the Transfer to be inherently improbable.

[12]

Loan made by Stephanie to Vinh

There was no contemporaneous written document setting out the agreement between Stephanie and Vinh about the loan and its repayment. This is hardly surprising bearing in mind the sibling relationship that they had in 2009.
In about August 2009, Vinh asked Stephanie to loan him $30,000. He said that he would repay that amount, by the end of 2009, and would also give her $5,000, for interest on the borrowing.
Stephanie gave evidence of a conversation regarding interest on the loan. Her evidence was: "Vinh: 'I'm in a bit of financial trouble right now, Do you have any money you could lend me to offset the home loan at Bankstown and Guildford? [Stephanie]: 'How much do you need?' Vinh: 'As much as you can lend me.' [Stephanie]: 'I have $30,000 exactly.' Vinh: 'Well if you don't need it straight away, can you lend it to me?' [Stephanie]: 'How long do you need it for?' Vinh: 'Whenever you want it back, just let me know. The longer you can lend it to me the better. I'll pay interest into your account monthly. Whatever you would normally get.' [Stephanie]: 'Rabo direct pays 6%. It's a high interest saver account.' Vinh: 'Can we just say about $5,000 till the end of the year as I don't think I can afford 6% interest.' [Stephanie]: 'So will you pay it back by the end of the year?' Vinh: 'Yes I'm your brother you can trust me.' [Stephanie]: 'OK, I will transfer the money in the next few days I will need to ring the bank to transfer a large amount.'"
Vinh set out his version of the conversation which did not significantly differ from Stephanie's version. He did not refer to any interest by reference to Rabobank, but simply to the payment of $5,000 in interest.
Stephanie's bank records reveal that, on 3 August 2009, there was a "netbank" transfer of $30,000 to Vinh. He admits receiving the amount: T184.36 - T184.38.
Stephanie said that she had a conversation with Vinh "in about December 2010, when he promised to pay by December". He denied this conversation, although he admitted a conversation had occurred in December 2009. He says that he told Stephanie that he could not afford to repay her as "I am paying two home loans, all the utility bills, council rates, credit cards, and phone bills. Some of these expenses are also your expenses on the credit card and phone bills."
He also wrote, in the same conversation, he said "Stephanie, you still owe me money from your expenses on my credit card and the mobile phone bills" and that although he could not provide how much she owed him, she said: "Okay. I owe you. But I need my money now."
On 6 June 2011, Stephanie sent an email to Vinh which was in the following terms: "I was just wondering when you are going to pay my money back. I originally asked for it in Dec 10 and you asked for an extension to pay me back in May 11. It is now June 11, can you please pay me the $30,000 with the $5000 interest you agreed to within the next 14days. I am needing this back urgently. It has been 22months since I lent you this money." Please pay back by 20/6/11. Thank you"
On 7 June 2011, Vinh replied by email to Stephanie: "Why do you not answer the phone when I ring you?"
By letter dated 20 June 2011, from Stephanie's solicitors, AKN & Associates, a demand was made, on behalf of Stephanie, for $35,000 "plus [$110] for the cost of this letter". The letter concluded with the threat that if the amounts claimed were not paid "within 28 days of the date of this letter, we are instructed to commence legal proceedings to recover the principle [sic], interest as well as legal costs and any further court costs".
By letter dated 27 June 2011, from Stephanie's solicitors to Vinh, a demand was, again, made for $35,000, of which $30,000 was said to be a loan made by Stephanie to him on 3 August 2009 and $5,000 was said to be the amount of interest that he had agreed to pay.
In neither letter, was anything written about the Guildford property.
The demand for $35,000 was again made in a letter dated 19 July 2011 from Stephanie's solicitor to Vinh. Again, nothing was written about the Guildford property in this letter.
In a letter dated 27 July 2011, from the solicitors then acting for Vinh, to Stephanie's solicitors, Vinh admitted that Stephanie had loaned him $30,000 and that he had agreed to pay interest of $5,000.
In the letter, the following passage appears: "We are instructed that … another agreement was made in 2005 between [Vinh] and [Stephanie]. The agreement was that [Vinh] agreed to loan $30,000 to [Stephanie], in turn, [Stephanie] agreed to transfer the title of a property under the names of [Vinh] and his father Mr Van Chi Co…"
That assertion, on any view was incorrect. On Vinh's case, he had agreed to reimburse Stephanie for at least part of the amount that she had paid towards the principal and interest due on her mortgage.
Be that as it may, the letter went on to assert that "during the period of 2005 and 2011, the total amount [that] was spent by [Stephanie] is $73,214.98" and that Vinh required her to repay an amount to him ($8,214.98). (This amount comprising the amount she was said to have spent that exceeded $65,000, which was described in the letter as "the agreed loan amount by the parties".)
In a letter dated 28 July 2011, from Stephanie's solicitors to Vinh's solicitors, the solicitors "deny that such an agreement was made". A request was made for "a copy of all credit card statements in relation to the matter mentioned in your letter".
Next, there is a letter dated 3 August 2011, from solicitors then acting for Stephanie to the solicitors acting for Vinh. In this letter, there was a denial of "debts owing to your client".
The letter also stated: "Please be advised that if we don't receive a response from you within 14 days we are instructed to commence proceedings to recover the outstanding debts, interest, costs and to annul the transfer of the title of the [Guildford Property]".
The reference to the transfer demonstrates, beyond all question, that Stephanie and her solicitors were aware of the Transfer having been registered. Yet, there was no assertion that Stephanie disputed an agreement to transfer the Guildford property, or that she had not signed the Transfer pursuant to which the deceased and Vinh were registered on title.
By letter dated 4 August 2011, Vinh's solicitors wrote to Stephanie's solicitors and provided "a summary of payment that [sic] prepared by our client …The detailed evidence, including bank statements, phone bills, will be admitted to the Court should a proceeding is [sic] instituted".
The document which was headed "Attachment A Summary" referred to and identified various amounts, including "ANZ Cash Transfer and Misc Cash" ($44,309.86), mobile phone bills ($3,961.35), one other mobile phone bill ($819), ANZ credit card payments ($15,764.64) and Citibank credit card payments ($8,360.13).
Nothing happened, thereafter, in regard to the claims and counterclaims that had been made in the correspondence that had passed between the solicitors for each of Stephanie and Vinh.
Importantly, as stated, at no time prior to the death of the deceased, did Stephanie assert that she had been unaware of the Transfer of the Guildford property into the names of the deceased and Vinh. Nor did she assert that she had not signed any Transfer pursuant to which title came to be registered in their names.
Vinh had every reason to treat the matters raised in 2011 as closed.

[13]

Credit of the Parties

Next, I shall deal with the credit of the major witnesses, as this issue loomed large during the course of the case. This case is one that is particularly fact sensitive. Findings of fact, the assessment of the credibility of the witnesses, and the reliability of the evidence are extremely important. It is necessary to form an assessment of whether to accept each of the competing witnesses as a witness of truth, as there are many facts, as well as a number of important conversations, that are the subject of dispute.
The only witness who was entirely credible was Jessie. She was hardly cross-examined, and her evidence, overall, was given frankly, calmly, and, in my view, honestly. It was not suggested to her that she was favouring Vinh in the evidence that she had given, or that, otherwise, she had not given a frank account of her knowledge of the events. Where her evidence conflicts with that of Stephanie, I prefer the evidence of Jessie.
I found Stephanie, generally, to be an unreliable witness. I treat some of her evidence, where it is not corroborated by contemporaneous documents, or otherwise, with considerable caution. At times, she was prepared to make some claims either that she must have known were incorrect, or that she did not know to be true (as to both of which I shall return).
I have already dealt with some aspects of her evidence that I do not accept. I shall next deal with other aspects of her evidence that I find difficult to accept.
Stephanie stated that she gave all of her money from her part-time work in a fish shop "Ocean Masters" to the deceased. She said that she worked on Thursday nights and on Saturday and Sunday during school, and worked "most days" during school holidays. She stated that "I gave him [my] pay packet without taking any money for myself".
Later, she referred to amounts "that [came] out of my pay" which seems to suggest that she had not given the deceased all of her wages.
She also maintained that after she left school in 1999, and had started full time work, she "continued to give [the deceased] all of the money I earned. It wasn't until I left home for the first time [in about 2004], that I operated and maintained my own accounts and had financial independence".
Stephanie did not give evidence of how she was able to purchase things for herself that she would have needed, particularly after she commenced full time work, other than to say, that in relation to some things, she was given some money by her mother: T49.31 - T49.43.
Stephanie also gave evidence that, in about 2004 or 2005, the deceased had said to her: "You know all the money that I have been saving for you… I still have it… We should now go and buy that property we always spoke about we will buy it in your name." Her response was simply "OK".
Stephanie had given no evidence, previously, of the deceased telling her that he was saving money for her, except for one conversation she had said that she had with the deceased, when she began working casually, in about 1998, in which he is alleged to have said "I will put all the money [you earn] together to buy a nice house." This conversation seems highly improbable bearing in mind her age and what she was, then, likely to be earning.
Nor, did she give evidence of her asking the deceased, at the time of the conversation occurring in about 2004 or 2005, how much he had saved. I found her evidence on this topic particularly unconvincing.
Stephanie did not say very much in her affidavits about how the purchase price (other than the mortgage amount and the First Home Owner's Grant) of the Guildford property was raised. However, she asserted in her first affidavit: "…my father told me that I was to purchase the [Guildford property]. My father asked me how much money I had and insisted I give it to him to put towards buying the Property. I did as he asked. I was not given any choice as to which property if any I was to purchase. I had not seen the Property did not know its price and had no idea how much it would cost or where the money would come from when my father took me to see a solicitor in Campsie and I signed papers as requested by my father and the solicitor. I didn't understand the documents other than that they related to buying the Property and obtaining a loan from a bank secured by a mortgage of the Property."
Stephanie went on to write that "the Property was put in my name alone in recognition of the amounts that had come out of my pay over several years, the savings I had contributed and because I signed the papers to pay the Commonwealth Bank". Again, she did not identify the amounts that "had come out of my pay" or "the savings that I had contributed". Furthermore, she did not say how much, if anything, she gave to the deceased following her conversation with him about the purchase.
Her evidence on the topic of the purchase of the Guildford property is quite implausible and inconsistent with the evidence of all three children about the family's straitened financial circumstances during her, and his, respective childhood. Even if she did give the deceased all of her wages, the probability of those wages, in whole or in part, being saved, rather than used, to meet Stephanie's, or other family, expenses, is highly unlikely.
Furthermore, it is highly unlikely that Stephanie's wages between 1999 and 2004 would have enabled "a large amount" to have been saved, or that such an amount was contributed to the purchase price of the Guildford property. If Stephanie's saved wages had been saved and had been used to contribute to the purchase price, the deceased was likely to have said something to Vinh, or to Jessie about that. There is no evidence that he did so. Indeed, Jessie gave evidence that he did not.
Importantly, Stephanie's evidence is inconsistent with Jessie's evidence that: "As a result of Stephanie working [casually] at Ocean Masters, she had her own spending money and I noticed that she went shopping frequently, went out frequently with her friends and had a lot of new clothes, shoes and makeup. … As far as I am aware, Stephanie did not hand all her earnings or savings to [the deceased]." Jessie was not cross-examined on these observations.
Furthermore, Stephanie wrote in her first affidavit that she had continued to give all her wages to the deceased until about 2004, when she "left home for the first time". However, in reply to Jessie's affidavit, Stephanie wrote that she left home when she was about 19 years old (2003) and "after leaving home this [passing over her wages] stopped and I began saving for myself, to the extent that I could on the low income I earned". This is inconsistent with her evidence to which I have referred above.
In her affidavit in reply, Stephanie said she did not know of Vinh's role as a guarantor of her debt to the Commonwealth Bank and that "[u]ntil I read Vinh's affidavit, nobody, not my father, nor Vinh, nor anybody else, has ever suggested or said to me that any part of the money to be used to buy the [Guildford] property would come from Vinh, or had come from Vinh". She also maintained that she always believed that the money used to buy the Guildford property, "apart from the amount borrowed from the Commonwealth Bank, came from me and from the money kept as cash accumulated by my father over many years which included a large amount I had contributed."
It is equally implausible that she did not know about the need for Vinh to guarantee her repayment of the mortgage debt. As stated, her net income, in the financial year ending 30 June 2006, was $32,802. More importantly, her statements that she did not know of Vinh's involvement, particularly as a guarantor, are also difficult to reconcile with her having signed the document headed "Borrower's Acknowledgement that Guarantor's Income is required to Service and/or Repay the Facility" on 29 June 2005 which refers to Vinh as the guarantor and contains the following acknowledgements that: "• [T]he income of the Guarantor/s will be required to service and/or repay the facility which may be provided to me/us. • [T]he Bank considers that I/we will be reliant on the assistance of the Guarantor/s and without such assistance I/we will not be able to service and/or repay the facility or may not be able to do so without substantial financial hardship."
In her affidavit, Stephanie had stated that she had made "a lump sum contribution at the time of purchase" of the Guildford property. There was no evidence of such a lump sum payment and counsel did not submit that such a lump sum payment, in fact, had been made.
(In her verified Statement of Claim, Stephanie had asserted that in 2005 she had made "a further payment to the deceased in an amount of about $30,000" (Paragraph 10). Shortly after the start of the hearing, Stephanie's counsel stated that the Paragraph "should not be there" and that the Paragraph "needs to come out": T95.50 - T96.06.)
By the time of submissions, it seemed to be accepted that the evidence demonstrated that her only contribution was the amount borrowed, the amount of the First Home Owner's Grant and the saving of stamp duty.
Stephanie's evidence about not becoming financially independent until 2004, is also inconsistent with documentary evidence, which shows that in 2002, Stephanie applied for an Australian Business Number registration which was granted, and which became effective from 13 February 2002, and that she became registered, on that day, as a sole trader with the Australian Business Register.
By Deed of Assignment and Consent, dated 8 November 2002, Stephanie obtained the assignment of a Lease for premises, being premises, at Campbell Street, Berala, from where she operated a chicken shop. The Transfer of Lease is dated 12 November 2002.
There is a document, in Stephanie's handwriting, which is undated, which clearly relates to the Lease and the business, and another, also undated but in her handwriting, which is a message to customers informing them that the shop would be closed between 28 December 2003 and 5 January 2004.
When cross-examined on these documents, despite the evidence in her first affidavit about the deceased not having been engaged in any work, Stephanie, initially, gave evidence that she owned the chicken shop business in Berala (T58.15 - T58.16). Later, after being pressed on a number of details referred to above, she said that it "wasn't actually myself. It was actually on my father's request. He told me to sign papers. I didn't understand I was taking out a chicken shop business": T60.41 - T60.44.
In answer to what had happened to the chicken shop, she said, "I had nothing to do with the chicken shop so I am not entirely sure what actually happened even to today": T61.01 - T61.07.
In relation to the undated handwritten note, it was suggested to Stephanie that "it was a check list for yourself, wasn't it, for things to do" to which she responded "Not for myself, no. It is for my father": T61.09 - T61.24.
Her evidence was shown to be even more unlikely when she was shown a copy of a letter, dated 1 July 2004, in which she wrote that "the claim made against me is completely wrong and unjustified". In this letter, the reason for her assertions was not said to be that it was not her business, or that it was the business of the deceased. Indeed, the deceased was not mentioned at all. To the contrary, there was a reference to "I was only able to report the incident to the Landlord's agent", that the landlord had failed to repair the damage within a reasonable time "after I repeatedly requested the landlord's agent to do so", that "My business is a chicken shop", that "I lost my business", that "I suffered a loss of income and my business is ruined", that "If I was able to re-open and run my business", that "my business would still have value and I could sell it if I ever wanted to", and that "resulted in the loss of my business".
This letter is also inconsistent with Stephanie's affidavit in reply, in which she had written, after referring to the possibility that the chicken shop was set up in her name, that "If so, it was not done with my agreement and I received nothing from the business."
In answer to questions from the Bench, Stephanie stated that all of the matters referred to above in the letter were false: T63 - T66. Even if they were, the fact that she was prepared to make such statements, knowing them to be false, does not assist her on credit.
She was also shown a copy of a letter dated 8 November 2004, in her handwriting and signed by her, addressed to a barrister (Mr D Roberts), which related to a mention in a Court, involving a suit brought against Stephanie, at which Court mention she had appeared. She referred to a subpoena, to supplying "all necessary documentation (as it has been a bit of a hassle having my accountant on holidays)", wishing to have the matter transferred to the "Administrative Decisions Tribunal", and stating that "Should you wish to discuss this with me any further, I am contactable" and provided a mobile telephone number. Finally, she thanked the barrister "for your help, it is very appreciated by both my father and I [sic]". She maintained that the barrister had been acting for the deceased, not for her: T62.06 - T62.10.
I should mention that in her affidavit in reply sworn in June 2017, Stephanie had written that she "now [recalled] that my parents also ran a shop selling fresh chicken. I think it was in about 2002 and that they probably had the business for a year." When she gave her oral evidence, she made no mention of Tran's involvement in the business. (Stephanie did not call Tran to give evidence corroborating her version of the events.)
Because it is relevant to the submissions made in relation to the claim for $30,000 (which was the amount by way of adjustment in respect of the Guildford property to which reference will be made), I refer to Stephanie's evidence regarding Vinh having provided Stephanie with a credit card. In her first affidavit, she wrote that Vinh said: "I will organise a credit card for you… That way I will get the points for the money you spend… You can use the [credit] card whenever you need to … we can sort it out later on if you want to sell the property."
She also said that Vinh had provided the credit card "which I used when I needed to". Despite the reference to the above conversation, Stephanie asserted that Vinh "did not ever say that I would have to repay any amount in relation to credit card charges until 2011, when it was mentioned in a letter from his solicitors."
One might have thought that referring to "we can sort it out later" would have suggested that some repayment was going to be required, or at least some set-off was going to have to be given, for charges made by her on the credit card which Vinh had paid, or was going to pay.
Stephanie asserted in her first affidavit that "I did not receive any payment for the transfer of my interest in the [Guildford] property". Yet, the mortgage debt of $270,202.69 was paid by Vinh which relieved her of the continuing obligations under the Mortgage.
As stated, Stephanie maintained that she had not known about the transfer to the deceased and Vinh of the Guildford property. I have referred to the email sent by Vinh on 16 April 2009, the receipt of which Stephanie acknowledged. In relation to the email, she did not assert that she had not read it, but rather that "it did not register with me that the home was no longer mine. I did [not] pay attention to his use of the words 'because you have sold the house'". This is highly unlikely, particularly as in the document sent to the Commonwealth Bank in March 2009, there was a reference to the sale of the Guildford property.
Even if what she asserted is true, in my view, her inattention to the contents of Vinh's email is unlikely to have been caused by anything other than her understanding of the transaction which she and Vinh had discussed, namely that he would pay out her mortgage debt, and give her $30,000, and that the Guildford property would be transferred out of her name.
I find it inherently improbable that Stephanie and Vinh would have discussed any arrangement under which he would refinance a large amount to repay her mortgage debt and that they would not discuss, and that she would not understand, the need to transfer title to the Guildford home when he paid out her mortgage debt and obtained the discharge of that mortgage. I am more than satisfied that the Guildford property was transferred out of the name of Stephanie with her knowledge and concurrence.
It is also inherently improbable that Vinh would have done what he did without having reached agreement with Stephanie about the consequences of what he was to do. Whilst I have not accepted much of Stephanie's evidence, I have accepted that the arrangement made was that Vinh would pay her $30,000, as part of the transaction (albeit subject to "sorting out" what payments he made, or that he would make in the future, to her, or on her behalf.)
Stephanie asserted that "I did not ever lose sight of the fact that [the deceased] was my father and was entitled to be respected." Yet, when she was informed, by Jessie's husband, Marcus, by email, in November 2015, about the deceased being in palliative care, she acknowledged receipt of the email, saying "It has been a long time since our contact & it's so hard to know what to say". She did not do anything else.
The other aspect of Stephanie's evidence relates to the loan of $30,000 made in August 2009, its repayment by the end of the same year it was made, and payment of interest on the loan. She and Vinh were in agreement that Vinh had promised to pay her $5,000 in interest as well. Her evidence of the conversation referred to interest being paid at 6 per cent (the rate of interest she was receiving from Rabodirect). Of course, at that rate of interest, which equates to $1,800 per annum, Vinh would not have had to pay her anything like $5,000 within a few months. Indeed, he would have had to pay her $600, if he had been asked to at that rate, and if he had repaid the loan by the end of the year (4 months after the amount was loaned to him).
Despite her evidence that the interest of $5,000 was to be paid when the amount was repaid at the end of 2009, in none of the correspondence written by Stephanie's solicitors in June and July 2011, was there any claim for additional interest. All that was sought was the amount of $30,000 and the amount of $5,000 for interest.
Whilst I found Vinh, mostly, to be endeavouring to answer the questions asked of him truthfully, there was one aspect of his conduct, in 2009, which, in my view, was dishonest. That conduct relates to the cheque of "nearly $8,000" which was the subject of his conversation with Stephanie in about May 2009 (which I have earlier accepted occurred).
In cross-examination, Vinh accepted that the amount to which he had referred in his conversation with Stephanie, was actually $7,669.21, which had been referred to, in the settlement letter of 5 May 2009, as "balance paid to you on settlement".
He also agreed that the cheque had been made payable to Stephanie; that it had come into his hands following settlement of the transfer of the Guildford property; and that he had attempted to negotiate the cheque into his own name. He admitted that it was his handwriting on the cheque, but denied that he had signed Stephanie's name under the handwriting. He said he did not know how the signature came to be placed on the cheque. I do not believe his evidence in this regard.
His dishonest conduct was not ameliorated by what followed. He then asked Stephanie to loan him $8,000, which she did, by netbank transfer, on about 2 June 2009. Then, on 9 June 2009, he paid into her account $7,700.21, which he admitted was made up of a cheque for $7,669.21 and $31 in cash: T171.13 - T172.28. On 11 June 2009, he deposited a further $300, making the total repayment of $8,000.21. This was so that the amount advanced to him by Stephanie appeared to have been repaid by him to her.
Despite his denials, I am satisfied that he took these steps dishonestly, and inconsistently with what he had told Stephanie, namely that the deceased wanted her to have "nearly $8,000". In the end result, Stephanie did not receive any part of the amount of the cheque for $7,779.21, as this cheque was used by Vinh to repay the money she had advanced to him. Therefore, because Stephanie advanced $8,000 to him, the majority of which he retained, Vinh received, in effect, the value of the cheque: T174 - T175.
Yet, overall, and despite the matters referred to above, I consider that his evidence was more consistent with the undisputed facts and the documentary evidence to which I have referred. I also remember that the delay in the matter was brought about by Stephanie not commencing the proceedings in or about 2011, or at any time thereafter, whilst the deceased was alive. In relation to not producing some documents, he could not be blamed, entirely, for not doing so. From his point of view, the matter was concluded when he responded, through his solicitors, in the way that he had.
Neither Mr Nicolau nor Ms Audisho was cross-examined. I accept the evidence given by each of them.

[15]

The Written Submissions

The parties' written submissions on the trust claim can be set out verbatim because they were so short. The Plaintiff submitted: "21. The registration of the Property into the names of the Deceased and the first defendant will be overturned if gained by fraudulent means. 22. The Deceased and the first defendant forged the plaintiff's signature on the subject Transfer which was subsequently 'witnessed' by a person the plaintiff had not seen since about 1995. It is understood that the defendants concede that the 'witness' to the Transfer was not present at the time the plaintiff allegedly signed the Transfer. 23. The circumstances under which the Transfer was registered amounts to 'fraud' as a recognised exception to s42 of the Real Property Act 1900 and the interests of a bona fide purchaser or mortgagee without notice are not affected."
It can be seen that whilst "fraud" was referred to, there was no consideration given to the question whether the deceased and/or Vinh really had it in mind to mislead the Registrar-General in a material respect and thereby influence the Registrar-General to do something materially different from what otherwise would have been done, or whether the behaviour of the deceased had the element of dishonesty, or moral turpitude, sometimes said to be necessary for fraud: Davis v Williams [2003] NSWCA 371, per Hodgson JA, at [24].
The Defendants' written submissions were equally brief: "26. The claim must fail because the transfer from the plaintiff of the Guildford property, to Van and Vinh on or about 6.3.2009, was duly registered, see Conveyancing Act S.23C. 27. The plaintiff thereafter, paid no outgoings, and acquiesced in the ownership by Van and Vinh. 28. The plaintiff is estopped by such conduct from denying that Van and Vinh held both the full legal and beneficial interest in the Guildford property. Her conduct formed the basis of that assumption by them, which they acted upon to their detriment, and it would be unconscionable for her to deny that assumption (See: Commonwealth v Verwayen 1990 H.C.A. 39, per Deane J. at 444)."
These submissions did not deal with the question of whether the deceased intended that his action in requesting the attesting witness to sign the Transfer was one taken in order to deprive Stephanie of her interest in the Guildford property or whether the deceased simply took what he wrongly thought was a permissible short cut to achieving the task that Stephanie had herself wished to achieve. Nor did they deal with the fact that Stephanie obtained a benefit from the transaction, namely the discharge of the mortgage that was registered on the Guildford property and the consequential discharge of her liability to repay the debt secured by that mortgage. Nor did they deal with the argument that the event of witnessing the signature on the Transfer had no effect on the underlying agreement to transfer the Guildford property, to have the mortgage thereon discharged, which agreement truly existed.

[16]

Beneficial interests in the Guildford Property

Having identified the relevant factual matrix, the Court's findings about who holds the beneficial interest in land will be made with the assistance of presumptions. It will be necessary to consider the position as at the time of the purchase of the Guildford property in 2005, and then again, in 2009, when it was transferred out of Stephanie's name into the name of the deceased and Vinh.
The first relevant presumption is that the prima facie position is the "beneficial ownership of real property is commensurate with the legal title": Currie v Hamilton (1984) 1 NSWLR 687, 690, per McLelland J. Using this presumption alone, Stephanie was the sole registered proprietor after the property was purchased in 2005, and, therefore, her beneficial interest was commensurate with the legal title.
Sometimes, the presumption referred to above is displaced by a presumption of a resulting trust. That presumption involves a "legal presumption", in that there is a presumption of a trust (see Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) at [12-10]; W Swadling, "Explaining Resulting Trusts" (2008) 124 Law Quarterly Review 72), referred to, with approval, by Ward CJ in Eq., in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495, at [162]. This type of trust is also called a "presumed resulting trust" or a "purchase money resulting trust "because the catalyst for its creation is the acquisition of property": Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413, at [391].
Where the legal title does not reflect the contributions of the persons who made them, then (at least where there are no countervailing facts, for example, of advancement, or when the presumption is rebutted, or qualified, by evidence of the intention of the party paying the purchase price, or of the common intention of the parties who contribute that price), it will be presumed that the parties take a beneficial interest in the property as tenants in common in shares that are proportionate to their respective financial contributions to the purchase price. In other words, and relevant to the facts of the present case, where two or more persons make unequal financial contributions to the purchase price, but the property is conveyed into the name of only one of them, there is a presumption that the persons take a beneficial interest in the property as tenants in common in shares that are proportionate to their respective financial contributions to the purchase price: Calverley v Green (1984) 155 CLR 242; [1984] HCA 81, at 246-7 (Gibbs CJ), 258, 262 (Mason and Brennan JJ), 266-7, 269-70 (Deane J).
Thus, the beneficial interests under a resulting trust are ascertained by the process of identifying the person, or persons, who provided the purchase money to acquire the property and, if more than one person is identified as having done so, by ascertaining the respective amounts provided.
As held in Dyer v Dyer (1788) 2 Cox Eq Cas 92, at 93; 30 ER 42 at 43, "the trust of a legal estate … results to the man who advances the purchase-money … It is the established doctrine of a Court of equity, that this resulting trust may be rebutted by circumstances in evidence."
Mason and Brennan JJ, in Calverley v Green, at 262, (in a portion of the judgment with which Gibbs CJ agreed, at 251, and Deane J agreed, at 269) applied a principle referred to in Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; [1956] HCA 28, at 365, to identify the evidence that can rebut the presumption of a resulting trust: "The presumption can be rebutted or qualified by evidence which manifests an intention to the contrary. Apart from admissions the only evidence that is relevant and admissible comprises the acts and declarations of the parties before or at the time of the purchase ... or so immediately thereafter as to constitute a part of the transaction. If that evidence is insufficient to rebut the presumption the beneficial gift, absolute or subject only to qualifications imposed upon it at the time, is complete and no subsequent changes of mind or dealings with the property inconsistent with the trust by the donor can as between himself and the donees alter the beneficial interest."
In Shepherd v Doolan [2005] NSWSC 42, White J (as his Honour then was), at [23]), noted: "Ordinarily, the presumption of a resulting trust arises at the time the property is acquired. If the presumption is not displaced, then, unless there is a later agreement to alter the equitable interests in the property acquired, or the beneficial interests arising under the resulting trust are displaced by an interest arising under a constructive trust, the interests are not changed by later contributions to the conservation or improvement of the property. (Currie v Hamilton [1984] 1 NSWLR 687 at 691; Calverley v Green at 262-3). If the evidence establishes that it was the intention of the parties that their respective interests should be in accordance with something other than their contributions to the purchase price, such as their contributions to the purchase of the land and discharge of a mortgage, effect will be given to that intention so that although the trust will arise at the time of purchase, the quantum of their interests will fluctuate in accordance with that intention. (Bloch v Bloch (1981) 55 ALJR 701 at 704; Currie v Hamilton at 692; Calverley v Green at 262-263)."
In Ong v Lottwo Pty Ltd (in liq) (2013) 116 SASR 280; (2013) 304 ALR 651; [2013] SASCFC 57, a useful description of what is required was described as follows at [28] - [30]: "There is no doubt that for a resulting trust to arise the moneys contributed must bear the character of purchase moneys. A resulting trust will not arise where money is provided by way of gift or by way of loan or on some other commercial basis such as, for example, pursuant to a contractual obligation which is independent of the use to which the money might be put by the recipient. Ultimately, the court must be satisfied that the money has been provided with the requisite character … It will be sufficient, if an applicant were to plead, as the appellants have done in this case, the fact of the provision of moneys and the fact that they were used by the recipient as part of the price for the purchase of the relevant property in the recipient's name. In those circumstances, a presumption of a resulting trust will arise. The presumption will apply or prevail unless the presumption is rebutted. It, ultimately, may be rebutted if the circumstances also give rise to a presumption of advancement or if the person in whose name the title has been registered demonstrates, on the facts, that the true character of the moneys provided was not by way of purchase but by way of, for example, loan or gift."
In Amit Laundry Pty Ltd v Jain, Ward CJ in Eq, added, at [163] - [168]: "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 … 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)). 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 Cautionary (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)). 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)). 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]). 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). 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))."
(The presumption of advancement, which, in some circumstances, may be relevant, does not apply in the present case, and it may be ignored.)
The onus of establishing the presumption of a resulting trust lies on the person who is asserting the existence of the resulting trust. When the presumption arises, "it performs a similar function to the civil onus of proof by requiring the person against whom the presumption applies to adduce evidence, or to point to other evidence in the case, that rebuts the presumption": Vlahos Pty Ltd v Vlahos [2017] VSCA 166, at 58, in reference to Muschinski v Dodds (1985) 160 CLR 583, at 612; [1985] HCA 78.
As stated, the burden of rebutting the presumption of a resulting trust falls upon the party against whom the presumption is raised (in this case, Stephanie): Ryan v Ryan [2012] NSWSC 636, per Ward J (as her Honour then was) at [57]. The presumption may be rebutted by evidence as to the objective intentions of the parties at the time of the acquisition of the property: Ryan v Ryan, at [75]. In Anderson v McPherson (No 2) [2012] WASC 19; (2012) 8 ASTLR 321, Edelman J (as his Honour then was) noted, at [98], that the intention is an objective, manifest intention (not an unexpressed subjective intention). Evidence of subsequent statements or conduct, as distinct from those which are contemporaneous with the relevant transaction, will only be admissible as admissions against interest: Muschinski v Dodds at 590 (per Gibbs CJ).
A notable example of a case where the presumption would be rebutted is where the transaction is found to be one of gift or loan. There is no suggestion, by Stephanie, that the amounts paid by Vinh towards the purchase price, in 2005, was a gift, or a loan, to her. Nor is there any suggestion that in paying off the whole of the balance of the mortgage debt in 2009, that he intended to provide a gift to her of that amount.
As to the proof of each party's contributions, in Cetojevic v Cetejovic [2006] NSWSC 431, when considering whether there was a resulting trust, Campbell J (as his Honour then was), wrote, at [36]: "… I bear in mind that in an exercise such as this precise accounting is often not to be expected, and that sometimes a broad brush estimate needs to be made to ensure that the onus of proof does not itself become an instrument of injustice. However, it is still necessary for the tribunal of fact to be in a position of being persuaded that, at the least, a certain amount of contributions were made by one particular party, and to be satisfied as to how those contributions relate to the contributions made by the other party."
In this case, during the submissions, the parties appeared to be prepared to take a broad brush and holistic approach.
As stated, Stephanie contributed to the purchase price by paying the money borrowed by her from the Commonwealth Bank, towards the purchase price of the Guildford property, which borrowing she had an obligation to repay. In addition, she contributed the First Home Owner's Grant amount that she received ($7,000). Accordingly, her contribution to the purchase price ($430,000) was $287,000 or 66.74 per cent. (The parties during submissions seemed to be prepared to omit from calculation, the fees, disbursements and other incidental costs of completing the purchase.)
Absent agreement between Stephanie and Vinh, the beneficial interest arising under such a resulting trust would not change by later contributions to the repayment of the mortgage debt or otherwise in respect of the Guildford property. However, Vinh's contribution, in paying out Stephanie's mortgage debt can be taken into account in determining his beneficial interest in 2009.
As has recently been written by Sackville AJA in Lucas v Lucas [2018] NSWSC 962, at [159]: "The general principle is that a contribution to the purchase price of a property for the purposes of the law of resulting trusts must be made prior to the acquisition of the property. Thus payments in reduction of a mortgage debt are not usually relevant in determining the payer's equitable interest in the property, although it may be relevant on an equitable accounting. If the parties intend to acquire land free from a mortgage, as distinct from acquiring title to land subject to a mortgage, the contributions made to discharge the mortgage can be taken into account in determining the parties' respective beneficial interests. Mortgage payments therefore may be considered when quantifying the parties' interests under a resulting trust of a mortgage free investment. However, this will rarely be the case when the property is acquired as a home for one or both parties to live in." (Citations omitted)
There was simply no evidence from which the shared intention of each of Stephanie and Vinh could be discerned that her and his respective interests in the Guildford property would be determined by the contribution, not just to the purchase price, but also by way of repayment of the mortgage debt.
On the authorities set out above, in determining the beneficial interests in the Guildford property, at the time of its purchase in 2005, it is not necessary to, and I do not, take into account the contributions by each to the monthly mortgage repayments after its purchase. They do not constitute direct financial contributions to the purchase price of the Guildford property.
I have earlier concluded that Vinh contributed the balance of the purchase price of about $153,000. I estimate his beneficial interest in the Guildford property to be 33.26 per cent.
The legal title came to be registered in Stephanie's sole name, which did not reflect only what she had contributed to the purchase price. In my view, this is a classic illustration of the creation of a resulting trust upon the basis that the inference is that Vinh intended Stephanie to hold the Guildford property in trust in a proportion corresponding to the proportion of the purchase price which was contributed by him.
During submissions, the above matters were raised and it appears that counsel accepted the mathematical calculations to which I have referred: T217.46 - T218.11; T220.06 - T220.09.
There was virtually no evidence of the value of the Guildford property at the time of its transfer, in 2009. It seems to have been accepted that it should be taken to have a value of $430,000: T218.
Accordingly, at the time of the transfer in April 2009, Stephanie's entitlement, assuming the Guildford property had been sold for that amount, and that there had been no deductions from the gross sale price, would have been to receive $287,000. In fact, she received, at least indirectly, because the debt secured by the mortgage was repaid, the amount of $270,202.69.
I am satisfied that Stephanie and Vinh came to a consensus, in early 2009, that Vinh would pay out the mortgage debt and, subject to working out what he had paid on her behalf, would pay to Stephanie the amount of $30,000 to reimburse her, in part, for the payments she had made towards the repayment of the mortgage debt.
Yet, but for that agreement between her and Vinh regarding the reimbursement of $30,000, she would not have been entitled to any reimbursement of her contributions to the mortgage repayments. She would, however, have been entitled to receive close to $17,000. If she had been paid the amount of $30,000, she would have received more than that to which she was entitled. But she did not receive that amount.
It was not contended that the payment of $30,000 amounted to a condition upon, and subject to, which the Transfer would take place. Nor was it submitted that Vinh, having accepted the Transfer, was bound by a personal equity, falling short of a charge on property, which he was bound to satisfy.
Perhaps, those contentions were not relied upon because the above calculations did not include taking into account the repayments of $42,000 that Vinh had made by paying various amounts into Stephanie's account over the period of her ownership of the Guildford property. There was no evidence that Vinh intended to make a gift to her of the amounts that he paid into her account. Nor do the calculations include the other payments, made on credit cards that Vinh made on Stephanie's behalf.
As stated earlier, Stephanie wrote that Vinh had said: "I will organise a credit card for you… That way I will get the points for the money you spend… You can use the [credit] card whenever you need to … we can sort it out later on if you want to sell the property."
There is the evidence of the payments made by Vinh for, or on behalf of, Stephanie: Ex. VTC1 (Annexure F), which payments were, as mentioned, accepted by counsel for Stephanie (T228.23 - T229.16).
Bearing in mind that Stephanie accepted that there was discussion between her and Vinh to the effect that his payments would be "sorted out later", it seems to me that I should offset the payments made to Stephanie's accounts (which far exceeded $30,000) and treat those amounts in satisfaction of the payment of the amount to reimburse her for her contributions to the repayment of the mortgage instalments. To do otherwise would not be giving effect to what Stephanie and Vinh had discussed and agreed upon.
There was no satisfactory evidence of the deceased having made any contributions at all to the initial purchase price in 2005, or to the borrowing which enabled Stephanie's debt to be repaid in 2009. It follows that any interest that the deceased held in the Guildford property when it was transferred into his name, in 2009, was held on resulting trust for Vinh.
Jessie, as the executrix to whom Probate was granted, did not dispute that this result followed.

[17]

The fraud exception to indefeasibility

Section 41(1) of the Real Property Act 1900 (NSW) provides, in part, that upon registration of a dealing, "the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions and contingencies set forth and specified in such dealing ...".
Section 42(1) provides in part: "Estate of registered proprietor paramount Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates or interests that are not so recorded ...".
The "fraud" spoken of has been described as "statutory fraud".
Section 118 provides that: "Registered proprietor protected except in certain cases (1) Proceedings for the possession or recovery of land do not lie against the registered proprietor of the land, except as follows: … (d) proceedings brought by a person deprived of land by fraud against: (i) a person who has been registered as proprietor of the land through fraud …"
The Real Property Act does not define "fraud". So far as the Real Property Act is concerned, the only assistance that can be derived is from s 43(1) which provides that notice is expressly excluded from the statutory concept. The provision provides, in substance, that a registered transferee of an interest in land is not to be affected by actual or constructive notice of any pre-existing unregistered interest or trust.
It is well settled, however, that the "fraud" spoken of in s 42 is actual fraud, not constructive or equitable fraud, where there is no dishonesty or intention to cheat. The statutory fraud exception arises where there is dishonest conduct on the part of the registered proprietor, or his agent, whose title is challenged. It includes "dishonesty on the part of the registered proprietor in securing his registration as proprietor": Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 614; [1988] HCA 16 (Mason CJ and Dawson J).
In Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101 at 106 - 107, Lord Buckmaster, in delivering the judgment of the Privy Council, wrote: "If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear. It is not, however, necessary or wise to give abstract illustrations of what may constitute fraud in hypothetical conditions, for each case must depend upon its own circumstances. The act must be dishonest, and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest."
In Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202 at 221, Powell JA wrote: " ... the position still remains that, for the purposes of s 42 of the Act, 'fraud' comprehends actual fraud, personal dishonesty or moral turpitude on the part of the registered proprietor of the subject estate or interest or of that registered proprietor's agents: see Bahr v Nicolay [No 2] (at 614) per Mason CJ and Dawson J; (at 631-632) per Wilson J and Toohey J."
In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, at [192], the requirement that there be actual fraud or moral turpitude was confirmed.
Thus, the critical elements of statutory fraud are dishonesty, moral turpitude, a want of probity, and a wilful and conscious seeking to defeat or disregard another's rights.
Of course, as was held by the High Court in Bank of South Australia Ltd v Ferguson (1998) 192 CLR 248; [1998] HCA 12, at [10] - [11]: "[The relevant section] operates to qualify the general principle of indefeasibility only if the case answers the statutory description of 'fraud'. Not all species of fraud which attract equitable remedies will amount to fraud in the statutory sense. … The points of significance for the present litigation are that (i) statutory fraud embraces less, not more, than the species of fraud which, at general law, founds the rescission of a conveyance; and (ii) statutory fraud is not itself directly generative of legal rights and obligations, its role being to qualify the operation of the doctrine of indefeasibility upon what would have been the rights and remedies of the complainant if the land in question were held under unregistered title." (Footnotes omitted)
I turn next to the concept "fraud against the registrar" as a subcategory of statutory fraud. If registration of a document is obtained by a fraud practised on the Registrar-General, that will be fraud for the purposes of s 42 of the Real Property Act which may be sufficient to deprive the registered proprietor of the advantage of registration: Australian Guarantee Corporation Ltd v De Jager [1984] VR 483; National Commercial Banking Corporation of Australia Ltd v Hedley (1984) 3 BPR 9477; Westpac Banking Corporation v Sansom (1994) 6 BPR 13790; Sansom v Westpac Banking Corporation (1996) 7 BPR 14615. Yet, the "fraud" must be "practised with the aim either of depriving someone of an interest in land or of deceiving the Registrar-General": P Butt, Land Law (6th ed, 2010, Thomson Reuters) at [20-73].
I set out some of the above principles in Anderson v Anderson (2016) 18 BPR 36253; [2016] NSWSC 1204, at [363] - [374]. An appeal from this decision was heard and dismissed: Anderson v Anderson [2017] NSWCA 131.
About this type of fraud, Natalie Skead and Penny Carruthers, in "Fraud against the Registrar - An Unnecessary, Unhelpful and Perhaps, No Longer Relevant Complication in the Law on Fraud under the Torrens System" (2014) 40(3) Monash University Law Review 821, at 822, wrote: "Fraud in this sense arises when a person becomes registered pursuant to an instrument and the person has actual knowledge of, or is recklessly indifferent to, the fact that the instrument does not comply with the formalities for the execution and attestation of the instrument. The fraud lies in the misrepresentation to the Registrar that the instrument is a valid document that may properly be acted upon, when in truth the person registering the instrument knows that this is not the case."
In Australian Guarantee Corporation Ltd v De Jager, Tadgell J considered the effect of a mortgage that was caused to be registered, in which the Plaintiff, a mortgagee, through its employees, had knowledge that a signature on the relevant mortgage instrument was not duly attested. In finding there had been a statutory fraud, his Honour rejected that an attesting signature was "no more than a formality", by pointing to the dependency of Torrens title on "the good faith of those presenting instruments for registration": at 496 - 497.
His Honour, then, stated, at 498: "There is evidence that, here, those responsible for the conduct of [the Plaintiff's] … office knew that the due attestation of the execution of a mortgage was a prerequisite to its registration, as indeed it was, having regard to the Titles Office practice as dictated by the provisions of the Transfer of Land Act 1958. A moment's reflection will confirm that, when [the Plaintiff] presented the subject instrument of mortgage for registration, it was representing to the Registrar of Titles, as against the mortgagors, an honest belief that they, and each of them, had executed the instrument in the presence of a witness who, if it came to the point, could be relied on to prove the execution. To lodge an instrument for registration in the knowledge that the attesting witness had not been present at execution must deprive the lodging party of an honest belief that it is a genuine document on which the Registrar can properly act."
Of interest is the decision of Bryson J in Hickey v Powershift Tractors Pty Ltd (1998) 9 BPR 17,339, as, similar to the present case, it involved an untrue attestation, but the Transfer was actually executed by relevant parties.
His Honour stated, at 17,344: "… [T]he view taken by Hodgson J of the effect of a false attestation in National Commercial Banking Corp of Australia Ltd v Hedley (1984) 3 BPR 9477 appears to me to be applicable here: see 9481. In that case the purported signature of the party was forged; that is not so here but I take the same view of the consequence of misrepresentation about witnessing as was taken by Hodgson J; there was actual dishonesty for the purposes of s 42, but it was not directed specifically to dishonestly depriving the mortgagor of her interest in the property. The advantage gained by fraud was registration, and that advantage is vitiated. The events had no effect on the underlying agreement to mortgage the property, which truly existed: cf observations of Powell JA on attestation by an employee in Grgic v Australia & New Zealand Banking Group Ltd (1994) 33 NSWLR 202 at 222 . Reliance by proffering for registration a mortgage with knowledge that the attestation was untrue was treated as fraud for this purpose in Australian Guarantee Corp Ltd v De Jager [1984] VR 483 and in Westpac Banking Corp v Sansom (1994) 6 BPR 13,790 (Rolfe J). On the other hand an attestation which was believed to be true where a forger impersonated a mortgagor was held not to be fraud in Grgic v Australia & New Zealand Banking Group Ltd, above. The present case is unusual, perhaps unique in that the attestation was untrue but the document was in fact executed by the party as purportedly attested. Although the power to refuse to register a dealing is discretionary, it seems very unlikely that the Registrar-General would have registered the mortgage if it had not been given the appearance that Mr Peter Huntingdon actually witnessed Mrs Hickey's signing the document. The fact that she had not signed the annexure pages might have seemed much more important if it had been made known to the Registrar-General that the purported attestation signature on the annexure pages was made by someone who was not in fact a witness. Lodgment of the mortgage in the form which it had when lodged and re-lodged had the obviously intended effect of deceiving the Registrar-General with respect to some facts which related to whether the Registrar-General would in fact decide to register the document, or would refuse to do so, and it is objectively likely that the document would not have been registered if the Registrar-General had known the facts as they truly were. In my view there was a case of fraud such as is referred to in s 42(1) of the Real Property Act and Powershift Tractors is not entitled, as between itself and Mrs Hickey, to any of the advantages otherwise conferred on the proprietor of a registered interest by s 42(1), or the provisions of s 36(11) by which upon registration a dealing has the effect of a deed. Registration is an advantage and a set of facts known to be false was relied on to obtain registration, and hence there was, in my finding, actual fraud, involving turpitude, with respect to the registration. However the vitiating effect of the fraud is not extended by the fact that registration was obtained, and does not extend to the underlying agreement. The deception fell within the reference in s 42(1) to fraud, but it did not relate to the substance of the transaction; it related only to whether it was to be registered or not. Although Powershift Tractors does not have any of the advantages flowing from registration under s 42 or 36(11) it does not appear to me to be in need of any of those advantages. The mortgage is and has the effect of a written agreement by Mrs Hickey to mortgage the land to Powershift Tractors, and is enforceable as such in equity irrespective of whether it was witnessed regularly or irregularly or not at all, and irrespective of whether it was duly registered or was registrable."
Also apt to the circumstances of the present case, in Russo v Bendigo Bank Ltd [1999] 3 VR 376; [1999] VSCA 108, the Court of Appeal in Victoria considered the false attestation by a clerk, employed by a solicitor, who, by virtue of signing the relevant attestation clause, indicated that she had witnessed the mortgagor's signature on the relevant mortgage document. Ormiston JA held (with Winneke P agreeing), at [36] - [38] that although the clerk had made a false statement, there was no direct evidence of a critical element of fraud, that is dishonesty of moral turpitude.
His Honour also considered, at [40], that as a clerk of limited experience and training, she may have been "unaware of the difference her attestation made in the process leading to registration" and, as such, this process was "seen by her as no more than a formal step in the requisite legal chain of procedures". On the evidence available to the Court, although the clerk had made a false statement, this in itself did not show that she had been dishonest: at [41]. (Indeed, Ormiston JA refused to draw the inference that she knew that she was putting the mortgage forward on the path of registration.)
Ormiston JA, then, stated, at [42]: "In the present case it is the conscious impropriety of Miss Gerada [the clerk] which the appellant has failed to make out. It is that element of 'fraud' under the Act which the courts have consistently over the years maintained as essential, that is 'personal dishonesty' or 'moral turpitude' that has not been brought home to Miss Gerada in the present case. She had nothing to gain from her false statement, except possibly some saving of time or trouble. She was not involved in Mr. Halaseh's dishonest schemes. She had no knowledge that Mrs. Russo did not sign and no knowledge that she did not wish to sign the mortgage. In my view it would be a curious consequence that her behaviour should be characterised for this purpose as fraud, for the very essence of that concept is to relieve people from the consequences of indefeasibility only where their behaviour, or the behaviour of those for whom they are responsible, has that element of dishonesty, of conscious moral turpitude or wickedness such as would justify the intervention of a court to set aside the mortgage or other registered estate."
Although it was a case that considered the alteration of a document presented to the Registrar-General, in respect of which the same principles apply, in Davis v Williams (2003) 11 BPR 21,313; [2003] NSWCA 371, Young CJ in Eq, stated at [110]: "Even though anyone who attests a dealing under the Torrens system falsely is in one sense committing fraud against the Registrar General, the cases show that that is not enough. It will be enough if an officer of the interested party which has become registered knowingly or recklessly certifies so that the registration is effected (De Jager, Hedley, Sansom). It will not be enough if some officer of the person who obtains registration without any moral turpitude or intention of depriving a person of an interest in land makes a false attestation (Russo). In all cases it must be shown that there was fraud by the person becoming registered or its agent in obtaining registration so that an interest which would otherwise take priority over that interest has been defeated."
He also wrote at [140] and [142]: "Moral turpitude and dishonesty are required to constitute fraud, and this involves mens rea. Even stupidity is not enough … It would seem that the clerk took a shortcut which she may have conceived to be in some way permissible when it was plainly not, not with a view to personal profit or anything else … … A charge of fraud is a serious one and needs to be properly established. It does not seem to me that in the absence of Ms Moore or any admissions by her of fraudulent intent that one can infer anything more than ignorance, certainly one should not infer any moral turpitude. With great respect, the trial judge seemed to consider that once she had altered the document knowing that it was going to be lodged with the Registrar General, that that was enough. With great respect I do not consider that that is so …"
Hodgson JA, at [25] considered the fact that the registration clerk had not affected a "material misrepresentation, which was such as to influence the Registrar-General to act in a way materially different from what otherwise would have been done, rather than being a mere formality", meant that the registration clerk was not attempting to affect any person's property interests; she was simply making what she thought was a short cut in the registration process.
On the issue of the requirement of moral turpitude, Hodgson JA went on to write, at [26]: "There may also be a further question, namely whether [the registration clerk's] conduct had that element of dishonesty or moral turpitude that is said to be necessary … For my part, however, I do not see that as being, in this case, a requirement distinct from those I have already raised. If the registration clerk made a representation to the Registrar-General, knowing it to be false in a material respect, and intending that the Registrar-General be induced by the representation to act in a way materially different from what otherwise would have been done, then I think that would be sufficient dishonesty or moral turpitude, irrespective of whether she had any intention that anyone be disadvantaged by this. If a lie is material in respects such as these and understood to be so, I do not think that lack of intent to harm can justify treating it as a "white lie" and as excluding dishonesty or moral turpitude." (Citations omitted)
(It bears mentioning that in Davis v Williams, at [253], Gzell J in reaching a differing view, considered that the "false lodgement of the altered document was … enough to constitute fraud. That finding did not depend upon direct evidence that might have been given by the registration clerk as to her state of mind.")
Relevantly, also, in Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 [2012] NSWSC 1548, Sackar J stated, at [95]: "Having considered these authorities it seems to me that they highlight the importance of the presence of what may be described as moral turpitude or an intention of depriving a person of an interest in the land by some dishonest act."
Indeed, what should be drawn from these authorities is fraud practised on the Registrar-General, such is the case with a falsely attested instrument, will constitute fraud in respect of s 42 in circumstances that involve moral turpitude, or intention of depriving a person of an interest in land through a dishonest act, by the person obtaining registration. When it is known to a party to the transaction that his, or her, own dishonesty in obtaining the relevant property interest will directly lead to the other party losing her, or his, interest, it is relatively easy to conclude that moral turpitude has been established. If the other party is not being deprived of her or his interest at the expense of the dishonest party, then it would be much harder to do so.
It is more likely than not that it was the deceased, rather than Vinh, who caused the signature of Yu Hua Mo to be placed, as the witness to Stephanie's signature, on the Transfer. She was, after all, the deceased's friend, not a friend of Vinh. (Furthermore, it was not put to Vinh, that he had orchestrated the signature of the witness on the Transfer.)
I am satisfied that this is not a case of the forgery of Stephanie's signature that has been wrongly attested, since I have not accepted her evidence that she did not sign the Transfer. The present case is somewhat unusual in that the attestation was untrue but the Transfer, as I have found, was, in fact, executed by Stephanie as purportedly attested.
The question that arises is whether what occurred involved a consciousness that what was being done was wrong, or that to take advantage of the relevant situation involved wrongdoing. Without in any way condoning the conduct, it is unlikely, on the facts of the present case, that the deceased, was conscious of any wrongdoing. After all, Stephanie wanted to be relieved of the burden of the mortgage and the mortgage repayments; she, as I have found, signed the Transfer, in Brisbane, and returned it, without her signature thereon having been witnessed; and the way forward, so far as substituting mortgagees, was to transfer the Guildford property out of Stephanie's name. It is likely that the deceased, in asking the witness to attest Stephanie's signature was simply avoiding the trouble and delay in having the Transfer sent back to Stephanie, to have it re-signed by her and her signature thereon witnessed, and having her return the re-executed Transfer for lodgement with the incoming mortgagee.
Furthermore, in having the witness sign the Transfer, neither the deceased nor Vinh, was seeking to deprive Stephanie of her interest in the Guildford property. On my findings, she had agreed to have the Guildford property transferred out of her name, this being the way in which her liability under the registered mortgage would be discharged. She was well aware that Vinh was going to arrange finance to repay the debt secured by the mortgage that was registered in her name.
Also, although the Transfer was presented to the Registrar-General with a false attestation, there is limited evidence from which to draw a conclusion that the deceased and/or Vinh was aware of the significance of the attestation in the process in registration. Nor am I able to infer that the statement, although false, was known to be false in a material respect, so that the Registrar-General would be induced by the representation to act in a way materially different from what otherwise would have been done.
In this regard, I consider that to infer such a finding of actual dishonesty, without this allegation having been put to Vinh, and bearing in mind the limited evidence surrounding the circumstances of the false attestation and the lodgement of the Transfer, should not occur.
Consequently, I cannot find that there was dishonesty in respect of the deceased and/or Vinh because there is significant doubt as to whether either had an appreciation of the significance of the attestation of the Transfer document, and by extension, an appreciation of the representation that such attestation has made on the Registrar General, when remembering the critical fact that Stephanie had signed the Transfer.
Instead, it seems more likely than not, that any false statement was made in the absence of moral turpitude and in the absence of intent to deprive a person of an interest through a dishonest act. In the circumstances, I am satisfied that the false attestation, in the mind of those involved, was executed in order achieve what was believed to be a practical short cut in respect of what was seen as a formality.
Furthermore, even if the Transfer were set aside and the Guildford property were held as it was prior to its registration, and it was held solely for Stephanie, she would hold the Guildford property on resulting trust for Vinh. I have dealt with Vinh's obligation to repay the amount of $30,000, which he had agreed to pay to her as part of the transaction.
In the circumstances, there would be no utility in setting aside the Transfer. As it happens, I am not satisfied that there was fraud in the relevant sense required to have the Transfer set aside.

[19]

The Debt ($30,000) and Interest ($5,000) - August 2009

A loan is ordinarily understood to be an "advance of money coupled with a contract for its repayment": Potter v Potter [2003] 3 NZLR 145, at [13]. The intention of the parties to such a loan, usually, is that ownership in the funds passes to the borrower and the lender is left with an in personam right, secured or unsecured, of repayment: Ying v Song [2010] NSWSC 1500 at [32].
I am satisfied that, despite the close familial relationship that existed in 2009 between Stephanie and Vinh, there was a contractual intention created by the discussion between them pursuant to which Stephanie advanced $30,000 to Vinh, and pursuant to which, he agreed to repay her that amount and interest of $5,000.
Put another way, I am satisfied that the usual presumption, that agreements made in a family are not intended to have legal force, was rebutted, and the parties regarded their arrangement to have legal consequences: Ashton v Pratt (No 2), at [32].
There is little doubt that the debt created was one which was repayable no earlier than the end of 2009. At any time thereafter, Stephanie could have commenced proceedings to recover the debt. A cause of action accrues when all the facts have occurred which give rise to a right to sue: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17, at 245. In this case, it accrued once the date for repayment passed and the debt had not been repaid.
Alternatively, even if the debt was one repayable on demand, the cause of action for the repayment arose immediately the loan was made, that is, in August 2009, not when the first demand was made for repayment, in December 2009: Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51, at 566; Ogilvie v Adams [1981] VR 1041, at 1043; Haller v Ayre [2005] 2 Qd R 410, at [2] (per de Jersey CJ), [20] - [26] (per Keane JA).
Vinh, in accordance with s 68A(1) of the Limitation Act 1969 (NSW) did plead that Stephanie's right or title to claim the debt had been extinguished: Paragraph 28 of the Fourth Amended Defence.
Section 14(1)(a) of the Limitation Act, which is in the following terms, is relevant in either case: "General (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims: (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed."
(In this case, Stephanie's cause of action was in debt, grounded upon a contract made with Vinh.)
Section 63 of the Limitation Act provides: "Debt, damages etc (1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action to recover any debt damages or other money, the right and title of the person formerly having the cause of action to the debt damages or other money is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished."
Section 63(2) is not applicable in the circumstances of this case.
Since the claim was made only upon the filing of the Statement of Claim on 9 February 2017, and since that is more than six years after 31 December 2009, Stephanie's claim is defeated, and the cause of action would, by virtue of s 63(1) of the Limitation Act, be extinguished.
As was pointed out by Pembroke J in McEvoy v McEvoy [2012] NSWSC 1494, at [43]: "The Limitation Act imposes a six year limitation period for the recovery of monies pursuant to a contract. Where monies are 'lent' between family members, this often results in hardship and unfairness, a matter which has been redressed by statute in the United Kingdom. The hardship arises because the informality of the family arrangement and the absence of documentation usually means that the 'loan' is characterised as repayable on demand. In such a case, time starts to run, for limitation purposes, from the date the loan was made: Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560; Sundarjee Bros (Aust) Pty Ltd v Sundarjee Bros (HK) Pty Ltd (in liq) [2004] NSWSC 1158 at [14]."
It is clear that the onus of establishing a limitation defence is on the party setting that defence up, in this case, Vinh.
Stephanie did not file a reply to the defence, or make any submissions, suggesting that the bar to obtaining relief was postponed by reason of s 54 of the Limitation Act as a result of Vinh having confirmed the cause of action. However, I shall deal with that possibility in light of the fact that an opportunity was not given to file an amended Defence to the Cross-Claim.
Section 54 provides: "Confirmation (1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation. (2) For the purposes of this section: (a) a person confirms a cause of action if, but only if, the person: (i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made, or ... (4) An acknowledgment for the purposes of this section must be in writing and signed by the maker."
The onus is on Stephanie to establish the alleged confirmation: St George Bank v Meredith; Ghabrial v Meredith [2017] NSWSC 961, Parker J, at [58].
In Giacci v Giacci Holdings Pty Ltd [2010] WASCA 233, Newnes JA summarised some of the relevant principles at [36] - [39], although his Honour was dealing the Limitation Act 1935 (WA), as follows: "The relevant principles can be stated quite shortly. In order to take a debt out of the operation of s 38 of the Act, it is necessary that there be a promise by the debtor to pay the debt. A promise need not be express and a promise to pay will be implied from an unconditional acknowledgement of the debt... In order to constitute such an acknowledgement there must, upon the fair construction of the words read in the light of the surrounding circumstances, be an admission that the debt is owed... But it is not necessary that the acknowledgement specify the precise amount of the debt so long as it is ascertainable from extrinsic evidence... Nor need the acknowledgement be contained in a single document but a number of documents can be combined to make up an acknowledgement... A promise to pay or acknowledgement of debt must be made to the creditor or the creditor's agent... Such a promise or acknowledgement need not be made direct to the creditor or the creditor's agent but it is sufficient that the debtor intends that it be communicated to the creditor or the creditor's agent as an admission of the debt... It is clear from s 44(3) of the Act that an acknowledgement signed by an agent of the debtor is only effective if the agent is duly authorised to sign it. But it is not necessary that the agent have express authority to do so if it is within the agent's general authority... The authority of the agent is to be determined according to the ordinary principles of agency. Ultimately, what amounts to an acknowledgement is a question of construction in each case and previous cases are therefore of little assistance..." (Citations omitted)
There is no doubt that if what was done by Vinh, through his solicitors, in 2011, was confirmation of the debt, within the meaning of s 54, then it was made prior to the expiry of the limitation period: Stage Club Ltd v Millers Hotels Pty Ltd (1981) 150 CLR 535; [1981] HCA 71, per Brennan J, at 569 - 570. In addition, although the correspondence was not written to Stephanie, it was written to her solicitors, who were her agents, for the purpose of being communicated to Stephanie. Vinh did not make the acknowledgement himself, or sign the correspondence in which the acknowledgement was made. However, there was no suggestion by him that his solicitors did not have express authority to do so.
But, in about July 2011, Vinh's solicitors, whilst stating to Stephanie's solicitors, in writing, that Stephanie had loaned Vinh the amount of $30,000, and that he had agreed to pay it back, with interest of $5,000, also wrote that Vinh was not required to repay the amount that Stephanie claimed.
It is also important to remember what Gibbs CJ wrote in his dissenting judgment in Stage Club Ltd v Millers Hotels Pty Ltd, at 544: "Under the law in force before the Limitation Act 1969 was passed it was necessary, in order to take a debt out of the operation of the statute of James I, that a new promise to pay should be capable of being inferred from the acknowledgment. However, an unconditional acknowledgment was held to imply a promise to pay ... Under the Limitation Act 1969 it is not necessary that any promise to pay should be expressed or implied. What is necessary is an acknowledgment of the existence of the debt - and according to the submission for the appellant it must be an acknowledgment that the debt is existing at the time when the document containing the acknowledgment is signed. It is clear enough that, under the former law, it was necessary that there should be an admission that the liability still existed at the date of the acknowledgment, for one could not ordinarily imply a promise to pay from a statement that a liability had existed in the past. There had to be the admission of a present obligation to pay... Although under the Limitation Act 1969, it is no longer necessary that there should be a promise to pay, it is still necessary, in my opinion, that an acknowledgment should admit or recognize the present existence of a cause of action; in other words, where the claim is for payment of a debt, an acknowledgment, to be sufficient, must recognize the present existence of the debt. I respectfully agree with the statement ... that 'To acknowledge a claim, as a matter of ordinary English, signifies an admission that it is due'. There is no acknowledgment of a debt unless there is 'an admission that there is a debt . . . outstanding and unpaid' ..." (Citations omitted)
Thus, whilst Vinh, by his solicitors, had acknowledged the undisputed relationship of lender and borrower that had existed in 2009, he did not admit, or recognise, the then present existence of the debt in mid-2011. The response was not one that he was unable, for financial reasons, to pay the debt (which had been his response in late 2009, and then again, in 2010), but that he denied any liability to repay. Indeed, he stated that if proceedings were commenced to recover the debt, those proceedings would be defended.
In my opinion, the evidence for Stephanie fails to discharge the onus which lay on her to show that a confirmation occurred after December 31, 2009. The result is that her claim for the $30,000 and $5,000 fails.

Papas v Co

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