Plaintiff v Defendants

47 The question then became whether the $282,820 deposited in the partnership account was partnership property. As a matter of law, unless the contrary intention appears, property brought into a partnership for the purposes of the partnership becomes partnership property to be applied exclusively for the purposes of the partnership and in accordance with the partnership agreement.[25] Unless the contrary intention appears, property bought with money belonging to the partnership is deemed to have been bought on account of the partnership. Consistently with his denial of a partnership, Miller's case was that it was his money that was used to buy the beach house, and that was the basis for his claim that Brabham and Martin held their interest on a resulting or constructive trust. In receiving and examining the evidence about the existence of a denied partnership, the Tribunal was exposed to much objective evidence of acknowledgments by Miller that Brabham and Martin had a one third beneficial interest in the beach house (and other assets) as partners. The starting point to an understanding of the case and the approach of the Tribunal is the evidence concerning the phenomenon of the partnership.

48 The existence of a partnership was sworn to by Martin and Brabham but denied by Miller who said in his witness statement that at no time had he seen or executed a partnership deed. He said that if he used the words 'the partnership' ― which he did over the years ― that was in relation to an entitlement to use certain assets.

7. In my role as Money Market Manager, I was personally dealing with major financial institutions and stock brokering houses.

8. In or about late 1979 I was invited to purchase shares in the initial public offering of a gold mining company in Queensland known as Buddha Gold Mines NL ("Buddha Gold Mine").

9. Following discussions with Brabham and Miller it was decided that we take up the invitation to purchase Buddha Gold Mine shares.

10. I do not remember the exact amount of money we contributed, however I believe it was around $15,000.

11. To the best of my recollection, it was at this point we decided to formalise our partnership and duly completed and executed a Partnership Deed ("the Deed") purchased from a Melbourne CBD legal stationary store. I recall the Deed was light blue/green in colour and A3 size. The partnership was named Brabham, Martin and Miller Partnership ("the partnership").

At one point I held the Partnership Deed but I no longer know of its whereabouts.

12. We incorporated the partnership into Tegal Pty Ltd in the early 1990s.

13. Upon completion of the Partnership Deed we opened a bank account in the name of Braham, Martin & Miller with the Commonwealth Bank Australia.

50 In his witness statement, Brabham said, where relevant:

1. In the early and mid1980s the share market was booming and Miller, Martin and I wanted a piece of the action and as senior financial business people we believed we could make money in speculative investments.
2. Our first main investment together was in or about 1980 purchasing shares in a newly listed company called Buddha Gold Mine NL ('Buddha Gold Mine') which was located in Queensland. ...
3. Buddha Gold Mine issued a prospectus and to the best of my recollection the shares were offered at 5 cents and Miller, Martin and I agreed to take the punt and invest. As I recollect Miller, Martin and I contributed equally to purchase around $5,000 each which would have purchased 100,000 shares each in Buddha Gold Mine. The money I contributed came from my own personal savings and this contribution was the beginning of our investment syndicate.
4. In early 1982 the value of Buddha Gold Mine shares was increasing ... In early 1982 Miller, Martin and I sold our Buddha Gold Mine shares ... and we made a return of approximately $190,000.

1. To the best of my recollection, once we received our capital gain, we decided jointly to create a partnership. I went and purchased a paper partnership agreement ('the Deed') from a stationery shop located in the Melbourne CBD, as a blank document template and we completed and filled in the template and named our partnership simply 'Brabham Martin and Miller', (in order alphabetically). The Deed was signed by myself, Miller and Martin and would have been kept by Miller as the more senior Coles executive. The Deed document was not treated as really important by us as much as the partnership name and allowing us to open a bank account in the name of the partnership legal entity. As business people we believed the formal partnership was good business practice.
2. We would have received a cheque from the broker from the sale. Everything was by cheque in those days. As the partnership did not exist when we purchased the shares the purchase and sale probably would have been in the name of Miller so the broker's cheque payee name would have been so made out. Eventually the proceeds were deposited into the new joint bank account when it was set up and named Brabham, Miller and Martin ('the partnership bank account').

51 Mr Miller's witness statement is replete with details concerning share trading. Confining myself to the Buddha Gold Mine shares, his witness statement said that Brabham and Martin made no contributions whatsoever to the purchase of those shares. He denied that he ever executed any partnership deed. He denied that there was ever an entity known as the Brabham, Martin and Miller partnership. He said that the joint bank account was opened by him on about 31 October 1980 by a deposit of $30 from him; and denied that any profits or funds from the sale of Buddha Gold Mine shares were deposited into the joint account. In his witness statement he stated:

1. On 3 December 1986, I sold 50,000 Coles Myer Ltd ordinary shares for $282,720, through JB Weir & Son, in the name of James Miller trading as New Kapital Investments, a business name registered by me on 15 October 1986. I used New Kapital Investments for recording transactions involving Kmart Corporation.

1. On 5 December 1986, I arranged for the proceeds of $282,720 from the sale of my 50,000 Coles Myer Ltd shares to be deposited into the BMM [i.e., Brabham Martin and Miller] Bank Account for the purpose of funding the purchase of the Property.

1. I decided to deposit the sale proceeds of my 50,000 Coles Myer Ltd shares into the BMM Bank Account because it appeared ideal to manage payments and contributions relating to the Property, thereby providing a single record for determining distributions when the Property was sold.

The balance in the BMM Bank Account at the time was only $14.29. The bank statements for that period of time have not been given to me and they were in the possession of Martin.

52 As for Tegal Pty Ltd, he stated that in April 1988 there was an allocation of four shares to each of Brabham, Martin and himself in that company, but that the beach house formed no part of the Tegal 'partnership' as the company was used for other investments. He says that Martin transferred his Tegal shares to him between 2002 and 2004 and the company was deregistered on 19 February 2015.

53 On the question of the existence of a partnership, there was a striking piece of forensic evidence supporting the evidence of Martin and Brabham about the existence of a partnership deed. In evidence before the Tribunal were the cheque stubs of the joint bank account. The very first cheque stub, dated 31 October 1980, was recorded as being a payment 'To R H Brabham' for $1, leaving a balance of $29. The handwriting on the stub was accepted as Martin's handwriting. Alongside the word 'For' in the place where one would ordinarily expect to see a note of the payee or a description of the payment, there was a thick black patching of the sort recognisable as made by a felt tip marker. When shown that cheque stub by the cross examiner and asked if he had blacked out the notation, Miller said 'I might have'. When further pressed, Miller admitted 'it's blacked out by me'. When asked for an explanation he said:

But I can tell you that at the time that I got the documents from Martin there was no partnership deed. I had never seen a partnership deed and I have never signed a partnership deed. The only document I was given that would seem to correspond to $1 was an investment portfolio dated 1981. I thought that they put the wrong connotation down. Also within the investment portfolio it said Mr Parker was admitted to the partnership and none of those positions were right.

54 The cross-examiner demonstrated to Miller that holding up the stub in the light enabled the words 'Partnership deed' to be seen. When asked again why he blacked out the cheque stub Miller said: 'Because it was wrong. ... It wasn't that I disagreed, it's - I didn't get a document.' He denied blacking out those words to remove something inconsistent with his case. When pressed to explain, he said (with my underlining):

I believed it [the words Partnership deed] was written later. I believe it was written - that by the time I got the cheques in 1988 I had put in $282,000. We had bought - we had settled on Moggs Creek and Imperial Surf. I was concerned if somebody was trying to put into the book that those properties were part of a partnership.

55 A less dramatic piece of forensic evidence, but nevertheless adverse to Miller's case and his credibility, was that the cheque stub for the fifth cheque dated 10 March 1981 was a cheque to Miller for $144.92 for 'partnership expenses'. Miller's evidence was that he did not know what the partnership expenses were. Later he said 'But also as I've said throughout if there is a casual use of the word partnership it relates to only two funds that I've put in. There was no other funds prior to that date put in by anybody else and no funds put in by Brabham and Martin.'

56 In the face of his categorical denial of a partnership, the evidence of the deliberate conduct of blacking out the words 'Partnership Deed' was certainly embarrassing to Miller on such a major issue and its ramifications in the case. To any finder of fact in a case such as this, it had to cast serious aspersions on his credibility, at least without a compelling and verifiable explanation.

57 After the deposit of the $282,820 cheque into the joint account on 5 December 1986, the immediate dealing with money in that account was forensically telling. On the same day, $96,273.05 was withdrawn from the joint account to purchase a bill of exchange from the Commonwealth Bank in the name of Brabham Martin and Miller. On 11 December 1986 a second bank bill was purchased on the joint account in their names for $149,555. When that bill matured on 15 January 1987, $125,000 from the proceeds was then deposited in their names with Australian European Finance Corporation Limited. That deposit was repaid into the joint account on 30 January 1987 which is about the time that payment was made and settlement occurred for the beach house. As the Tribunal posed: If the money was Miller's why pay it into a joint account and then invest it in the names of the partners? And then have it transferred to the three of them as transferees?

58 Then, as the Tribunal reasons recite,[26] on 3 April 1987 Miller paid a deposit of $16,000 for the purchase of a residential unit in Surfers Paradise known as Imperial Surf. There was a dispute whether the cheque for the deposit was drawn on Miller's personal account or whether that came from the partnership. But, the balance of the purchase price was paid from the partnership account on a direction given to the bank signed by Miller and Brabham. Miller said that the money transferred to the vendor from the partnership account was the balance of the funds that had been invested in the bank bills which he said was his money, even though it was in the partnership account. The Tribunal said:

1. Both Mr Martin and Mr Brabham said that they believed that Imperial Surf was registered in Mr Miller's sole name because there was some legal difficulty about registering a title in Queensland in the name of a partnership but there would seem to be no reason why it could not have been registered in their three names. Mr Miller said that it was put into his sole name because he did not believe that Mr Martin or Mr Brabham would be contributing any money towards the purchase.
2. When the property was not used by any of the partners it was rented. Rental statements up to June 1993 were in the name of Mr Miller. After that they were in the names of the three partners. On 5 December 1995 they were in the name of Mr Miller, Mr Martin and Mr Stodgell and then, from 31 January 1996 they reverted to the names of the three partners. The rentals were deposited in the Partnership Account.

59 Years later, Miller sent a signed memorandum dated 13 June 2000 to Martin which said (with my interpolations in italics):

RE: Apartment 30B, Imperial Surf

This memorandum is to confirm that on or about 7 January 1983 [query if that was meant to say 1986], I James Edward Miller acquired the following property.

Certificate of Title

Volume No 6412

Folio No 82

Address: Unit 30B

72-80 The Esplanard

Surfers Paradise Queensland 4217

The beneficial interest in the property is held for myself, Ian Donald Martin and Ross Harold Brabham in equal one-third shares.

60 Miller's explanation of this document is recorded by the Tribunal in this way:

1. ... When asked to explain this during crossexamination, Mr Miller said that, at the time he signed this memorandum, he had not fully considered the contents as he was leaving on an overseas trip to Rome on 16 June, which was three days later. He said that he assumed that the memorandum referred to the entitlement of Mr Brabham and Mr Martin to use Imperial Surf. He said that he provided the document to allow Mr Martin to borrow money. Mr Martin said that he had his solicitor prepare the document so that he would have something in writing to prove that he owned his one-third share in Imperial Surf.
2. Mr Miller is and was at the time an experienced businessman and he would have understood the meaning of the document which is short and unequivocal. If he believed that Mr Martin was intending to use the document in order to secure some borrowing he must have known that the document would have been worthless for that purpose if it was only intended to refer to a right to use the unit.

1. Mr Martin said that this memorandum was prepared by his solicitors in order to record the correct and actual ownership of Imperial Surf and that it was signed by Mr Miller 'after various discussions'. I found Mr Miller's explanation for having signed this document unconvincing.

61 The Tribunal's reasons record that Miller sold the Imperial Surf apartment and kept the money for himself. Neither Martin nor Brabham demanded a share of the proceeds. The Tribunal stated:

1. Mr Martin said that he agreed to this because Mr Miller told him that he needed the money for his property settlement with his wife. He said that he and Mr Miller initially argued about the matter but that he and his wife finally agreed to allow Mr Miller to sell it. He said that he did not know what happened to the funds.
2. Mr Brabham said that he was not consulted about the sale of Imperial Surf. He said that he only became aware that it had been sold when his relatives arrived to stay in the unit and they were informed by someone there that it had been sold. He telephoned Mr Miller who told him that he needed the proceeds of sale to pay debts and that there was no surplus left. Mr Brabham said that he was very upset over the sale but believed that he could do nothing about it because he was not on title.

62 There are other contents of the reasons which refer to other acquisitions of leisure assets including land at Merrijig in north-eastern Victoria which Miller purchased on his personal account but in whose name the land was registered in the names of Brabham, Martin and Miller, for whom Miller held a power of attorney. The dealings with this land appear to be quite complicated as they involved discussions with the Lamberts and the Stodgells. It is sufficient to say it was another example of a joint acquisition, although in this case the payment did not come from the partnership account.

63 The Tribunal's reasons recite the purchase of thoroughbred racehorses by Miller. Ownership of the horses was registered in the names of Brabham Martin and Miller.[27] One of those horses, Rapavan was said by Miller to have been bought by him from his own money, although the Tribunal did not have unequivocal documented evidence of that fact. Other horses were purchased from funds from Tegal Pty Ltd, a company in which the shares were owned by Brabham Martin and Miller.

64 By October 1992, it appears the Brabhams were in the hands of lawyers concerning a financial or property settlement on a dissolution of their marriage. This required them to provide instructions concerning their financial interests. In evidence was a letter from Margaret Brabham (the fourth respondent) to Miller on 14 October 1992 stating:

Dear Jim,

I have been requested by my lawyer to supply information to her re the Partnership, for settlement purposes. I wonder if you can supply me with answers to the following questions please?

1. Is there a 'Deed of Partnership'?

2. When was the partnership set up?

1. Is it a registered Partnership with the Company's office (or Aust equivalent)?
2. What are the entitlements of Ross and myself as of May 23rd 1992 and now?
3. Confirmation, in writing, that the Partners are happy for me to remain in Partnership.
4. What rights do I have to sell my share in the P'Ship in the future?

Jim, I would appreciate your response to the above as soon as possible ...

65 There was no response to that letter in evidence. But there was a response from Miller to Ross Brabham on 26 November 1992 with a document saying (with my explanatory annotations in italics):

1. Moggs Creek Beach House (80% owned by members of partnership). [i.e. allowing for the subsequent 20% share to the added co-owners]
2. 'Lancer 48' Motor cruiser (1/3 interest).
3. Shares (at market) - $50,000.
4. Cash reserve - $30,000.
5. Land - Mansfield, Vic. (housing block).[i.e. the Merrijig Land referred to in paragraphs 95 to 105 of the Reasons, which was also purchased by Miller and registered in their three names]
6. Horses:-

6 y.o. gelding - near end of career (has bleed).

Well performed 4 y.o. gelding (recently broken down).

NOTE:

(a) Unit 30B at Imperial Surf (Gold Coast) is owned by J.E. Miller. The partners (Brabham, Martin & Miller) have been given rights to use the unit at no charge. Rental receipts and operating expenses are credited/charged to the partnership's bank account.

(b) The assets of the partnership were intended to represent quality of life investments, rather than commercial investments for profits. The majority of the funding has been provided by J.E. Miller. The partners entitlement, as agreed by the partners, is to the use of assets for recreational purposes. The partners have agreed that no sale of any partners entitlement, or distribution of funds can be made without the agreement of all partners, except for certain situations in respect of J.E. Miller.

66 Additional material in evidence concerning the Brabhams was a deed made between them for the purposes of a settlement of their financial affairs, dated 11 December 1992. Recital H of that deed stated that:

THE partnership (hereinafter referred to as "the Partnership") is a partnership consisting of the parties hereto, Mr and Mrs Martin and Mr and Mrs Miller and is the subject of a Partnership Deed wherein the parties hereto hold onesixth each interest in the capital and property of the Partnership.

A Statement of Assets attached to that deed stated: 'Partnership holding Moggs Creek house, Imperial Surf Surfers unit, and race horses, etc. is not at issue as both R & M [i.e. Ross and Margaret] both hold equal shares.'

67 Of great significance was the contents of documents in Family Court proceedings between James and Pamela Miller in 1999. After a decree nisi of a dissolution of marriage in August 1999, an order was made by the Family Court on 6 April 2000 approving a deed dated 12 November 1999 made between the Millers in settlement of their financial affairs. Certain recitals in that deed are unequivocal acknowledgments of the equal interests of Brabham and Martin in the beach house. The deed, which is a serious legal document relied on by a Court, and possibly others, concerning people's financial affairs stated in its recitals ―

1. The husband and the wife each have a one sixth interest in property situate at:-
   1. 3 Robyn Road Moggs Creek Victoria ("Robyn Road"); and
   2. Lot 52 Alpine Ridge Drive Merrijig Victoria ("Alpine Ridge Drive").

1. The wife has a 50% interest in property situate at Spring Arbor Michigan in the United States of America ("Spring Arbor"). The husband has a one third interest in property situate at unit 30B Imperial Surf Esplanade Surfers Paradise Queensland ("Imperial Surf"). There is a loan outstanding of $140,000.00 to the National Australia Bank secured against the Imperial Surf property.

1. In summary, the husband and the wife or either of them own or are entitled to the following real and personal property:-

The husband's 33% interest in Imperial Surf

The wife's 50% interest in Spring Arbor

The husband's 50% interest in Wahine Court

The amount of $60,000 for the 27% interest in Robyn Road (Moggs Creek) can only be the value of the one-third beneficial interest as stated in Recital I. Clause 7 of the Deed provided that Miller would retain for his own use and benefit his interest in properties including the beach house at Moggs Creek and the Imperial Surf apartment.

69 Another acknowledgement of coownership from Miller was in a letter from him to the Commissioner of State Revenue dated 2 July 2014 concerning an assessment of land tax for the beach house. The details of that letter and its calculations are not material. But, as the Tribunal noted,[28] the letter acknowledges that all coowners, including Brabham and Martin, were the owners of their respective registered interests in the beach house. The letter concerned assessments Miller had received for 2010, 2011, 2012, 2013 and 2014 about which he said 'To my knowledge, no joint owner had greater than 13.33% of the property ($96,000), and therefore less than the threshold of $250,000 for individual assessment.'

I presume that now that the records of the SRO have been updated to record 10 owners for the property rather than three, I was improperly charged in 2011 and 2012 as the SRO records had not been updated for title changes dating back to 1990.

71 Despite the thrust of the letter being concerned to show there were other owners liable for land tax assessment, another paragraph stated:

... I confirm that at this time, I have not issued proceedings against the other joint owners pursuant to a resulting and/or constructive trust and therefore no order of the court exists or further consent obtained. However, I plan to issue within the year and will keep you informed.

72 On the materials, this seems to be the first written occasion upon which there was any reference to an intended claim by Miller that the beach house was held on trust for him.

73 Some of the grounds of appeal make it necessary to make some reference to the substance of the closing written submissions made to the Tribunal.

74 The principles concerning the creation of a resulting trust look to the intention of the parties at the time of acquisition. In this case, the respondents, who addressed the Tribunal first, contended the intention was manifested by the creation of the partnership, the purchase of the property from partnership funds, and the registration of the three of them as joint tenants in common, faithful to a partnership. They contended: that despite Miller's denials now, a partnership was established by deed between them in 1980; his conduct until the breakdown of the relationship was consistent to show that Miller regarded himself to be in partnership with them; and there were multiple documented acknowledgments (some of which have already been identified in this judgment) that the beach house was acquired as partnership property; and that Brabham and Martin were equal beneficial owners with Miller. Hence, the respondents said, even if the Tribunal was to determine that the money to buy the beach house originated from Miller, that was secondary to the decisive question of intention. They said if Miller contributed more funds into the account than did Brabham or Martin, then that occurred in the context of the partnership, but even then, it was not for the Tribunal to undertake a taking of partnership accounts. In any event, they said there was insufficient evidence to determine the state of accounts as between the three parties. Thus, the respondents contended, it did not matter which of the partners contributed to what amounts to the acquisition of the property. The property was partnership property. Any dispute between partners concerning financial adjustments according to contributions to a partnership undertaking is a matter for the law of partnership and the taking of proceedings to dissolve the partnership and to seek a taking of accounts. But that is an entirely different matter to a claim that they held the property on trust for Miller.

75 On the case for a constructive trust, the respondents' closing submissions contended in essence that there was no basis for declaring a constructive trust, substantive or remedial. There was no evidence that could support a finding that Brabham or Martin did or said anything that induced Miller to agree to register the title of the beach house in their names as joint tenants. The property was acquired in pursuance of a consensual arrangement that it was to be acquired for the purposes of or as part of their partnership. The collapse of that partnership and the failure of their personal relationship did not lead to the imposition of a constructive trust. Any equitable adjustment, or equitable contribution or reimbursement is effected by means of a taking of accounts.

76 In the closing written submissions for Miller at the Tribunal, it was said:[29]

Accordingly, the parameters of this case are one of narrow ambit. Or as the Tribunal succinctly stated, 'The sole question is: who paid the money?' The Points of Claim and the Points of Defence and the witness statements confirm this question to be the issue and the only issue between the parties.

77 Posited as the sole question, as I read the submissions for Miller, his counsel was unconcerned with the question whether there was a partnership. In essence, the closing submissions by Miller reasserted that it was he, Miller, who had purchased the property with his own funds and that the respondents did not pay any money for the purchase. Counsel asserted that the respondents were bound by their pleadings and their evidence that they, Brabham and Martin, contributed to the purchase of the beach house, and that they were to be limited to that proposition. The case in essence was that the evidence could only show that case to be 'incorrect, false and factually impossible' because the funds paid into the partnership account to buy the beach house came from the sale of Miller's shares in Coles Myer, and the respondents had not challenged any of the financial evidence adduced by Miller.

78 I think to pose the sole question as being 'Who paid the money?' was too narrow and simplistic, and certainly incomplete as a matter of established legal principles concerning resulting trusts, about which there was no debate.[30] But Miller's closing submissions did not go outside the purview of that solitary question. A resulting trust is a presumed trust and the question of who paid the money to purchase the trust estate is one question; but not the only question and not necessarily the decisive question. For Miller to confine himself to the contention he paid for the beach house could go only to create a presumption of a trust in his favour when the house was conveyed into the joint names of himself and Brabham and Martin. But that presumption may be confirmed, rebutted or qualified by evidence of his intention.

79 One source of possible confirmation was the alleged unwritten agreement pleaded by Miller as his answer to the allegation of a partnership, merely mentioned in Miller's closing submissions. But that was found by the Tribunal to be not proved.

80 The presumption may be rebutted on evidence that the purchaser intended the others to take beneficially. The respondents closing submission were comprehensive elaborate, but in essence their rebuttal case was the proceeds of sale of the Coles Myer shares were deposited in the partnership account and became a partnership asset. One thing is clear from the respondents' closing submission to the Tribunal: they centred on the question of intention. It was all integral to their case for a partnership. They said for example:

1. A presumption of a resulting trust is only a presumption and it may be displaced if a contrary intention is expressed before or at the time or registration of the party's interest in land. It is for this reason that the question of whether or not the land was acquired for the partnership becomes a highly relevant issue. If the land was acquired for the partnership as contended by the evidence of the Respondents then this displaces any presumption. Of course, the presumption of a resulting trust arises only if Miller was at the time of the purchase of land the sole contributor of the purchase price.
2. The argument has a degree of circularity about it but the circulatory is resolved if the question of intent is clearly addressed. For the reasons set out below, if the property was purchased for the partnership as is contended by the Respondents then the question of who actually contributed money for the purchase price or from what pool of funds the purchase price was taken becomes a secondary consideration. The reason for this is because it is the intention of the parties that is the core point and the source of the funds is a secondary point. The intention is established by the acquisition of the property for the partnership.
3. The intention of Miller can be inferred from his acts and declarations as to the interests of the parties and the relationship between the parties. The evidence of Miller's acts and declarations subsequent to the purchase of the property is admissible against him.

81 So what was the closing submission for Miller on the question on intention? It was essentially a pleadings point, taken in a Tribunal that is not a Court of pleadings. The Points of Defence for Brabham and Miller stated in paragraph 3:

1. Save that the property was purchased in or about late 1986, the Respondents deny paragraph 3 and say that the whole of the purchase price for the purchase of the property derived from partnership funds of the Applicant, the First Respondent and the Third Respondent.

PARTICULARS

In or about 1980 the Applicant, the First Respondent and the Third Respondent formed a partnership known as Brabham, Martin & Miller ('the partnership'), through the execution of a deed that was purchased from a legal stationary store. This deed was held by the Applicant.

Funds were contributed equally to the partnership and each partner held 1/3 interest in the partnership. A bank account was established in the name of the partnership.

The partnership invested in shares including, newly listed Buddha Gold Mine shares, which resulted in profits for the partnership and provided wealth creating opportunity.

The profits were used for further quality of life investments, rather than commercial investments including, investments inter alia a campervan, race horses, overseas vacations, spa baths, real property in Surfers Paradise and in Mansfield as well as the property that is the basis of this application.

82 Miller's written submissions at the Tribunal need special attention. Whilst he conceded that the Tribunal is not a court of pleadings, he said 'It does not permit a wholesale change of story and contradiction of the pleadings.'[31] The relevant parts of the submission said:

... It is submitted that the Respondents are bound by their pleadings and evidenceinchief in that they, or more particularly Messrs Martin and Brabham, contributed to the purchase price of the Moggs Creek property. The Respondents' case is that the Moggs Creek property was paid for out of partnership funds and they are limited to that proposition.

83 The contribution from Brabham and Martin was said by them in their evidencein-chief to have come from profits made from shares in Buddha Gold Mine. Yet, Miller contended, that was 'totally incorrect, false and factually impossible'. The submission went on to say that:

1. Accordingly, despite the submissions of the Respondents it is not open for the Respondents to put forward the rebuttable presumption of the intention of the parties. This is because it is in contradiction to both the pleadings and evidenceinchief and crossexamination of the Respondents.
2. Further, it was not put to the Applicant.
3. At no stage have the Respondents put forward a case that the Applicant and Messrs Martin and Brabham intended that the property be held in equal shares despite the Applicant being the only person to contribute to the purchase price. To the contrary, the case of the Respondents has always been that partnership funds were used to purchase the Moggs Creek property.
4. Indeed, the common intention argument contradicts the pleaded case and evidence of the Respondents, as if partnership funds were used to purchase the Moggs Creek property then the intention of the parties becomes irrelevant as actual contributions have been made.

1. In any event, there is no evidence of such an intention and to the contrary there is evidence of the Applicant and the Respondents did not have a proprietary entitlement until they made a final contribution.

84 It is of particular significance that there was nothing in the submissions of Miller's counsel in the Tribunal to put a case for a constructive trust. The written submissions, proceed on the sole question 'Who paid the money?' That question was posed as being seen as decisive of the case made for a resulting trust and a constructive trust. The closing paragraph states that 'In the event that the Tribunal is persuaded that the first to fourth Respondents do have an interest in the land then there ought be an adjustment against their interests for the contributions made by the Applicant.'

85 The Senior Member concluded that: '...the evidence of the existence of a partnership is overwhelming'.[32] And I think that was no exaggeration. The Senior Member made these findings -

23. At the time the partnership is said to have been entered into, a joint bank account was opened by the three men with the Commonwealth Bank. The first cheque stub of this bank account has the words "Partnership deed" written on it in Mr Martin's handwriting. Mr Martin said that the cheque was written to reimburse Mr Brabham for the purchase of a form of partnership deed from a legal stationer. Mr Miller, who had been given the cheque butts and other records of the three men when Mr Martin left for overseas, has blacked out the works [sic, words] "Partnership deed" on the cheque stub.

24. I accept, that the cheque stub, which is dated 31 October 1980, recorded a cheque drawn for one dollar to repay Mr Brabham for the purchase of a form of partnership agreement from a stationer. Although the words "Partnership deed" on the cheque stub were blackened out by Mr Miller, they can still be read in a good light. Mr Miller did not provide any satisfactorily [sic] explanation for blacking out these words. In the absence of any other explanation, I infer that Mr Miller blacked out the words on the cheque stub for 10 March 1981 because he wanted to conceal evidence that a partnership deed had been purchased.

25. The joint cheque account was operated by the partners up to November 2002 when the last substantial deposit was made. Thereafter only very small amounts were deposited until 29 March 2004 when the account was closed by Mr Miller.

27. Apart from the cheque stub on the joint cheque account the evidence of the existence of a partnership is overwhelming. Mr Miller acknowledged its existence several times and Mrs Martin gave evidence that the partnership was often discussed and that both the partnership and what she described as the "lifestyle assets" that it purchased were spoken about openly.

28. I am satisfied that on or about 31 October 1980 the parties entered into a partnership with a view to buying and selling shares at a profit. I am satisfied that the joint cheque account was opened for the purposes of the partnership and that a formal partnership deed was purchased at the time and signed by the parties although the whereabouts of that document are now unknown.

29. The joint cheque account ("the Partnership Account") was at the Commonwealth Bank. Mr Martin and Mr Brabham said that it was used for the purposes of the partnership. Mr Miller contended that it was simply a joint account in the three names. However, in his email to Mr Brabham on 26 November 1992, he described it as being "... the partnership's bank account" and I think that the weight of the evidence is that it was a bank account opened for the purpose of the partnership and that it was operated as such.

32. The partnership was formed for the purpose of buying and selling shares. It is unclear whether other investments were contemplated at the time.

86 This all culminated in the following findings by the Senior Member:

1. The written acknowledgements of the entitlements of the other parties that Mr Miller provided at various times were never satisfactorily explained. I can understand him saying that the interests of the other two partner would need to be earned by payment of money, although that seems an unusual arrangement, but he makes no reference to that in the acknowledgements. His explanation for signing the acknowledgement in regard to Imperial Surf is difficult to accept, given his level of business sophistication.
2. Mr Miller never explained why he acknowledged that cash and shares were partnership property if in fact they were not. Indeed, he did not satisfactorily explain why he referred on a number of occasions to assets as partnership assets when he now claims they were his. The explanation that they would have to earn their interests does not seem to suit assets other than the three properties.
3. I think on the balance of probabilities that there was a pool of partnership funds derived partly from investments but principally from an unknown source that involved Mr Miller and possibly the other members of his very small team as well. I am satisfied that this pool was regarded by Mr Miller and the other two partners as belonging to the three of them.
4. No partnership accounts were ever kept and at least some of the bank accounts that held partnership funds appear to have been in the name of Mr Miller. Mr Miller appears to have been in charge of the disbursement of the funds of the partnership but they and the assets purchased with them were nonetheless referred to by him and by the other partners as belonging to the partnership.
5. I accept Mr Brabham's evidence that Mr Miller acknowledged to him that he mixed these partnership funds with his own money because that seems likely from the documents. Certainly money held in the accounts referred to in America appear to have been brought back and used for partnership purposes and those accounts were initially in Mr Miller's name.

87 The Tribunal reasons culminated in this finding as the disposition of the case, noticeably concerned with the parties apparent intentions:

1. The amount of $282,820 was paid into the Partnership Account. In view of the admixture of Mr Miller's funds with those of the partnership, the fact that the amount was paid into the Partnership Account and not into Mr Miller's personal account, the fact that Mr Miller acknowledged that the Beach House belonged beneficially to the three partners equally and the fact that after the money was paid in it was used in the purchase of bank bills in the names of all three partners, all lead me to think that it is more probable than not that it was paid in with the intention that it would belong to the three partners. It was then used to purchase investments in the way of bank bills in the names of all three partners and when those bank bills matured the proceeds were paid, not to Mr Miller, but back into the Partnership Account and were ultimately used to pay first for the Beach House and then for Imperial Surf. At the time of those purchases I think that it was partnership money as the respondents contended.

88 The Tribunal found in effect that Miller's alleged unwritten agreement was not proven. It was unsupported by evidence of anything in writing, or by words or conduct or other evidence consistent with the existence of such an agreement. To the contrary, the fact that Brabham and Martin were registered with Miller as tenants in common at the outset was manifestly irreconcilable with such an alleged agreement. It was also irreconcilable with other evidence, some written, that showed Miller truly did regard or acknowledge Martin and Brabham as being in partnership with him or that they had an equal interest in the beach house as owners. The Tribunal's reasons stated:

1. I asked Mr Miller why he put the Beach House in all three names if it was intended that Mr Martin and Mr Brabham would not contribute to the purchase price. Mr Miller's explanation was that he wanted assistance to maintain the Beach House and that he thought that, if they were to earn an interest in the Beach House by a later contribution, it would not be necessary to transfer a share to them at that time if they were already registered as owners.
2. I find this explanation difficult to understand. It is possible to lend one's beach house to one's friends or work colleagues or allow people to use it in exchange for maintenance without putting them on the title. Both Mr Martin and Mr Brabham denied having been asked to make any contribution towards the rates or outgoings on the Beach House and said that the costs of acquisition and subsequent maintenance were paid from the partnership funds. In all the years that followed there is nothing in writing and no evidence of any conversation to the effects that the shares of Mr Martin and Mr Brabham were not held beneficially because they had contributed nothing to the purchase price, outgoings or upkeep of the Beach House.
3. In his email to Mr Brabham of 14 October 1992 referred to above, Mr Miller claims sole ownership of Imperial Surf but he makes no such claim with respect to the Beach House. He said that he made the assertion in his conversation with Mr Martin in 2004. That is disputed by Mr Martin and there appears to have been nothing in writing to a similar effect until the claims that he made that led to this proceeding and his letter to the delegate for the Commissioner for land tax in 2014 foreshadowing such claims.

89 Pausing here, the substantial merits of this case can now be surveyed along these steps:

(a) Miller's case was that he paid for the beach house and subsequent costs of ownership;

(b) his case was although it was his property, there was an unwritten agreement that Brabham and Martin could make recreational use of the house;

(c) any financial contributions by Brabham and Martin to the beach house would be recoverable by them on the ultimate sale of the house;

(d) despite all that, Brabham and Martin were on title as equal coowners from the outset;

(e) Brabham and Martin were never asked to make contributions;

(f) as Brabham and Martin did not make any financial contributions under the unwritten agreement, they hold their interest on resulting trust and therefore any evidence of intention concerning any beneficial ownership is irrelevant;

(g) the Tribunal held there was no such unwritten agreement, a finding not challenged on appeal;

(h) the relationship was attributable to a partnership as a form of association, a partnership that was trading in shares;

(i) the beach house was purchased from funds in a partnership account and there was objective evidence to show an intention or a recognition by Miller that the moneys in that partnership account were partnership moneys, and more pertinently, there were documented instances of acknowledgment by Miller that Brabham and Martin had a onethird beneficial interest in the land;

(j) on that basis, and acting on the whole of the evidence that was before the Tribunal, any presumption of a resulting trust asserted by Miller was rebutted.

90 I turn now to the grounds of appeal in the plaintiff's notice of appeal dated 9 September 2016. Miller's written submissions in this Court are organised conveniently so as to group the grounds of appeal according to a particular error of law as contended, which I shall follow.

The Tribunal erred in law by permitting the defendants' late changes of defence including new allegations of impropriety - Grounds A, B, C, D and L

The Tribunal erred in law regarding the defendants' failure to comply with the rule in Browne v Dunn (Grounds E & F)

91 I shall deal first with the 'new allegations of impropriety' which is common to both contended errors. That is a reference to the evidence of the second defendant Teresa Martin described in paragraphs 175 to 186 of the Tribunal's Reasons.

92 Teresa Martin was being crossexamined by Miller's counsel about her knowledge of the source of funds used to purchase the beach house. It started with her evidence that she was involved in the setup of the partnership. Before she was allowed to complete her answer what she knew back then about the purchase of the beach house, she was asked by cross examining counsel what she knew now. That was the venture that cross examining counsel took. She said 'And now I believe I know where the bulk of the partnership funds came from'.[33] The following evidence immediately ensued:

COUNSEL: Where did they [i.e. the partnership funds] come from?---Well it depends who you ask, but when Mr Miller - when I asked the question why has the partnership produced so many - so much funds, why can we suddenly, you know, Buddha Gold maybe got us Moggs, but how can we also now buy Imperial Surf, Ian told me it was shares. I found this - just shares 'cause there was so many other things that the partnership allowed us and Jim Miller, I had a conversation with Jim Miller and Jim Miller told me where the bulk of the funds came from.

SENIOR MEMBER: What did he tell you?---He told me that he used Coles Myer money to make an investment that he was sure it was going to give a huge return. Now when he went to the then director at Coles Myer saying am I able to make this investment, the director said absolutely not. And Jim told me I'd already made it, it had already made this much money and that was the only reason I know how much - or I know that there was lots of funds in the partnership account.

...

COUNSEL: So you are alleging that the source of funds came from an improper - let's put it in a fairly mutual [query, neutral] sense - an improper investment Mr Miller made?---I'm only telling you what Mr Miller told me.

Yeah, I'm just asking you?---Yep, well that's what he told me, so then it all made sense to me, why we can buy so many things.

But leaving aside how it came in, how the money came in or what - - -?---Yes.

- - - improper investment or otherwise?---Well I didn't know that it was improper.

Well from wherever it came from, it came from Mr Miller thought [query, though] didn't it?Well that's not what Mr Miller said. He said he used Coles Myer funds to make an investment, that's not Mr Miller's money, but he obviously had access to this money. He made the investment. When he went to the relative [query, relevant] authority to say you know, I'd like to take this chance to make some money, he was categorically denied and then he said it was too late, I had all this money and I don't think he told anyone else about it.

Well let's just work this out, Ms Martin. You don't say this in your witness statement, do you?---Well I did put in my witness statement.

Where is it?---Well he's left it out.

SENIOR MEMBER: The lawyers left it out?---Well when I read my witness statement I asked why that was omitted.

COUNSEL: I call for the draft.

93 Cross examining counsel then chose to return to questioning Teresa Martin about the conversation with Miller, and fortifying what she had already said. This was her evidence:[34]

COUNSEL: ... Mr Miller made an investment?---Yes.

Is that right?---Yes.

And you weren't employed at the time by Coles Myer, were you?---No.

And that was using Coles Myer money?---According to Mr Miller.

And he then subsequently asked whether he could make this investment?I believe that's how it went, yes, I believe that is what he told me.

And he was then told he couldn't?---Yes.

But it was all too late because he had already done it, is that right?---That's what he said.

And made a whole lot of money?---Correct.

Okay, so as a result of his investment he's made a profit, is that right?---As a result of yeah that investment.

He's made a profit?---There was money made, yes.

And he put that money into the partnership?---I believe so.

And as a result of that money going into the partnership, the partnership was able to buy all these assets?---I believe so.

94 Then, in reexamination, the follow evidence was adduced:[35]

COUNSEL: Now, Ms Martin, do you have any documents to show that Mr Miller in fact did invest money of Coles or Kmart without their authority and applied the funds to the partnership?---Do I have any documents to show that?

Yes?---No, I don't.

95 In response to the call by cross examining counsel for production of Teresa's Martin's draft witness statement, an e-mail from her to her lawyers was produced which said where relevant:[36]

In my original witness statement I said when I asked Miller where the partnership money was coming from he said he invested some Coles funds without approval and when he sought the approval he was categorically denied it. The investment made a very large profit but as it was unauthorised he couldn't then risk the Coles hierarchy finding out what he had done so he kept the profits. The witness statement also says I was particularly close to Miller's wife Pam, we were close but I would say I was closer and shared more interests with Miller, consequently he shared many very private and personal things with me.

96 This shows what she said was not a recent invention.

97 In his reasons, the Senior Member said (with my underlining):

1. ... I am not prepared to make any finding of unlawful conduct on behalf of anyone without firm evidence that it has occurred and there is no such evidence. However the statement Mr Miller made to Mrs Martin amounts to an admission by him that the money came from an unknown source and not from his own resources.
2. Whatever the source of the money was, Mrs Martin said that she believed that Mr Miller put it into the partnership and it appears more probable than not from the evidence that it was treated by these three men as being a common fund to be spent on their lifestyles.

In the present case if Mr Schlicht had wished to recall Mr Miller to give evidence in response to the allegation that Mrs Martin had made he could have made application to do so and leave would certainly have been granted. There was no application to call him which perhaps explains why her evidence was not challenged during crossexamination. Since there is no reason to disbelieve what she said I accept that the conversation occurred and that Mrs Martin's evidence about it is correct.

99 As Miller was nor recalled to dispute the conversation (in a case where so much was unwritten) the Tribunal was certainly entitled to accept her evidence.

100 Miller submits that the conversation between Miller and Teresa Martin had not been referred to earlier in the evidence, or in the points of defence. And that, 'counsel for the defendants did not apply to amend the Points of Defence to formally make the serious allegation of impropriety now made by the second defendant after the close of the plaintiff's case'.[37] This was said to be an error by the Tribunal.

101 But, the evidence was induced in cross examination. There was no serious allegation of impropriety made by Mrs Martin, or by any other respondent. No finding of impropriety was sought by the defendants. No finding of impropriety was made. The submission that the respondents should have amended their points of defence to make the allegation is therefore incomprehensible.

102 In the same way, it was submitted that in accepting Teresa Martin's evidence (even though the Tribunal explicitly said it was not evidence of unlawful conduct by anyone) the Tribunal 'failed to comply' with the rule in Browne v Dunn.[38] As a rule, a party should put to each of the opposing side's witnesses so much of that party's case as concerns that particular witness. If not, the party will generally be taken to accept the witness' account, and not be allowed in closing submissions to put forward explanations where the witness was not cross examined on the point.[39] As the Tribunal remarked, it is a rule in the interests of procedural fairness. More fully, in Browne v Dunn[40] Lord Herschell LC said:

[I]t seems to me to be absolutely essential to the proper conduct of a cause, whether it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in crossexamination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.

103 If there is non-compliance with the rule, it will usually be unfair to reject evidence on which there has been no crossexamination and where the witness has not otherwise been given an opportunity to deal with the suggestion made for the first time. On application by counsel for the party who called the evidence in which the rule was broken, a court or a tribunal will usually accede to an application to call evidence in rebuttal so that matters not previously put to the witness may be put or explained.

104 I think this ground of appeal is untenable. The rule Browne v Dunn can have very limited application where the evidence said to have been given in breach of the rule was not adduced inchief, but was induced in crossexamination. Teresa Martin's explanation that the conversation with Miller had been deleted from her draft witness statement on advice from her lawyer worked to rebut any inference of recent invention by her. But, above all, no finding of impropriety was sought by the defendants, and no finding of impropriety was made. Any complaint now about the perceived prejudicial effect of the evidence, and any complaint now by Miller that the evidence resulted in the Tribunal accepting that the conversation occurred (but not of any unauthorised conduct) could have been avoided had Miller's counsel applied for leave to further crossexamine Mrs Martin, or to recall Mr Miller.

105 The ground of appeal that the Tribunal 'permitted' late changes in the defence is a repetition of the closing submission in the Tribunal to which I have already referred. I think the pleadings point being taken is a technical evasion. Pleadings are a tool of justice in courts. The Tribunal is not a court, and does not conduct its adjudicative process according to the formalities of pleadings. Points of claim and defence are ordered where the nature of the case calls for a presentation of the material acts in an orderly way to ensure the grounds of establishing or resisting liability are articulated, all the better to enable a party to understand the case to be met. It would be said that by adopting a procedure of de facto pleadings, the Tribunal is bound by the court practice that evidence may not be adduced going outside the purview of the pleadings and the case cannot be decided on the basis of the case not pleaded.

106 But that did not occur here. Miller cannot say he was taken by surprise by a case that he was not pre-prepared to meet. To rebut the case for a resulting trust, the threshold issue was whether there was partnership. The points of defence took the stance that there was a partnership, and the money for the beach house came from partnership funds. There was no departure from that case. True it is, the particulars of defence refer to partnership profits from investment in newly listed Buddha Gold Mine NL shares. The evidence in chief of Brabham and Miller was in essence that their first main investment as a syndicate of three which led to the later formation of the partnership was in shares in Buddha Gold Mine bought from personal savings. But given the Tribunal's strong remarks about the state of the evidence all round, the gist of their evidence was the beach house was bought with 'partnership funds'. There was no departure from that.

107 As I see it, Miller sought to build an edifice on the fact the $282,000 that came into the partnership, and from which the beach house was bought, was the proceeds of sale of shares in Coles Myer and was used to buy the beach house. It was 'his' money because he denied a partnership even though it was paid into the joint account and the title was in three names. Brabham's evidence was accepted that the $282,820 was paid into the partnership account to pay for the beach house but said there was an adjustment later on, although had no records of it. Martin too agreed that the source of the funds was the sale of the shares in Coles Myer but said that the funds were paid into the partnership account in repayment of money that Miller owed the partnership. But these adjustments and repayments could not be verified.

108 As part of the exercise of determining whether a partnership existed, the Tribunal's attention had to turn to ascertaining whether the parties intended the $282,820 to be partnership money. I cannot understand how it could be said that such an enquiry was irrelevant and off the pleadings. Miller's case was put on the basis of a resulting or constructive trust. In both situations, equity is looking to effect a conscientious carrying out of the parties' intentions. What the Tribunal accepted was the objective evidence of the existence of the partnership and the objective evidence concerning the intention that the three of them regarded themselves as entitled to the partnership pool of funds and above all, and explicitly, that Miller regarded Brabham and Martin as equal beneficial owners of the beach house, which is what this case was all about, and how, faithful to principle, it was decided.

109 Accordingly, I reject the submission that the Tribunal 'permitted' the defendants to have a late change of defence.

The Tribunal erred in law by failing to give sufficient reasons- Ground G

If the tribunal gives written reasons, it must include in those reasons its findings on material questions of fact.

111 It has been observed that there are conflicting first instance decisions in this Court as to the circumstances, if any, in which the provisions of inadequate or deficient reasons by a tribunal constitutes an error of law.[41] Questions have arisen whether it is an error of law for an tribunal's reasons not to fully disclose the reasoning process, or, whether it is enough that a failure to provide 'adequate' reasons to constitute an error of law. The difficulty that can arise with the use of imprecise expressions such as 'inadequate reasons' or 'insufficient reasons' has led the Court, faithful to the terms of s 117 of the VCAT Act, to say that where the tribunal fails to give reasons or give reasons which omit a finding on a material question of fact or otherwise fail to disclose its path of reasoning for reaching the decision, it commits a vitiating error of law.[42]

112 But there are important considerations when it comes to the Court's evaluation of the of reasons produced by a tribunal. First, the reasons have to be read fairly, and particular parts have to be read in the context of the reasons as a whole. Secondly, the reasons have to also be read having regard to the way in which the parties conducted the case. Thirdly, depending on the case, courts will not scrutinise reasons with too fastidious an eye for the presence of appealable error.

113 In paragraph 28 of his written submissions, Miller contends the Tribunal did not provide sufficient reasons for the following findings:

(a) That the plaintiff invested Coles/Myer money to make an unauthorised profit.

(b) That the money used to purchase the Beach House came from an unknown source.

(c) That the plaintiff intended that the monies used to purchase the Beach House belonged to the partnership.

(d) That there was a pool of partnership funds.

(e) The rejection of the documentary evidence of the partnership accounts that shows that there were limited funds therein, and that the defendants' had not paid monies therein.

(f) There were profitable investments of the partnership.

(g) The money used to purchase the Beach House came from an unknown source [This repeats paragraph (b)].

114 Miller contends that the reasoning for those findings is absent. He says his case adduced evidence as to the source of the money and the profits of investments, evidence which was unchallenged by any documentary evidence adduced by the respondents. He submits the basis for rejecting the plaintiff's evidence was omitted by the Tribunal, and that vitiates the decision.

115 I reject those submissions. Overall, the submission is oblivious of the basis of the decision, which faithful to principle, looked to whether there was an intention that that moneys paid into the partnership account were intended to be partnership funds with which to purchase assets in which the partners would have a beneficial interest. It is not possible for Miller to sensibly contend that the Tribunal' reasons do not state disclose the evidence and the reasoning by which the Tribunal reached its conclusion about intention. A disapproval of the decision does not mean the reasoning was inadequate.

116 As for finding (a), I have already shown it is incorrect to say that the Tribunal made a finding that Miller invested Coles Myer money to make an unauthorised profit. Associated with that, finding (b) comes from paragraph 184 of the Tribunal's reasons, which states:

In particular, I am not prepared to make any findings of unlawful conduct on behalf of anyone without firm evidence that it has occurred and there is no such evidence. However the statement Mr Miller made to Mrs Martin amounts to an admission by him that the money came from an unknown source and not from his own resources.

117 The Tribunal's reasons for finding (c) and (d) are stated in paragraphs 187 to 202. Miller's submissions on this ground are focussed on saying that he adduced evidence about the source of money and the modest profits of investments, and that evidence was not challenged by the respondents. Therefore, he would say, how can it be said there was an unknown source? This overlooks the Tribunal's stated difficulty in gaining a satisfactory explanation from him about the source of the money. In looking to ascertain 'the large sums of money passing back and forth' the Tribunal said that '... it seems that Mr Miller had substantial money at his disposal that might have been the source of the large sums that appear to have passed back and forth between the parties', yet the absence of a proper set of accounts meant that there was 'very inadequate evidence' from where all this money is likely to have come.[43] The Tribunal was sceptical about Miller's explanation that he was a wealthy man and that he was generous to his friends,[44] and it could not understand why he would spend such substantial sums on others, and buy substantial assets and put them in other people's names.[45] Added to the inadequacy of the evidence was the Tribunals' doubt about Miller's credibility as a witness as a result of the evidence that he had concealed evidence on the cheque stub about the purchase of the partnership deed.

118 What matters I think is the patent reasoning of the Tribunal that, on the evidence as identified, and whatever the source of the funds or the investments , Miller, Martin and Brabham regarded those funds as belonging to the three of them. The Tribunal's reasons for the ultimate conclusion are stated meaningfully in paragraphs 187 to 205.

119 As for finding (e), the reasons for finding that there were profitable investments of the partnership are stated at paragraphs 108 to 123.

The Tribunal denied the plaintiff natural justice - Ground H

120 Miller contends the Tribunal made a number of findings adverse to him which had not been pleaded by the respondents, on matters which were not supported by written or spoken evidence, and in some cases were raised for the first time after he closed his case. This ground overlaps with grounds with which I have already found are not made out. Paragraph 30 to 33 of his submissions concerns the evidence of Teresa Martin. The respondents submitted precisely, and it must be accepted, there can be no denial of natural justice by reason of the evidence which was given by her in cross examination pursued by Miller's counsel, and about which counsel did not seek to recall Miller or seek an adjournment.

121 In paragraph 34 of his written submissions, Miller contends that the Tribunal made the following findings in circumstances in which Miller had no sensible opportunity to meaningfully contradict:

(a) the money used to purchase the beach house came from an unknown source;

(b) Miller intended that the moneys used to purchase the beach house belonged to the partnership;

(c) there was a pool of partnership funds; and

(d) the defendants had an involvement in obtaining the moneys that were used to purchase the beach house (other than a contribution of $5,000 each plus the investment income upon it).

122 There was no finding as stated in (d). The evidence was that the beginning of the investment syndicate occurred when the partners contributed about $5,000 each to purchase shares in Buddha Gold Mine. That was denied by Miller who said that Brabham and Martin made no contributions to those shares.

123 Findings (a) (b) and (c) were all part of the legal elements of the case as I have sought to expose them. The finding of an unknown source was attributable to the inadequate and undocumented state of evidence in the case, unimpressive witnesses, damage to Miller's credibility, and the absence of credible evidence from Miller about the source of the money. As for (b) and (c), the resolute pleaded defence as propounded was that there was a partnership and the beach house was purchased from partnership funds. I think it preposterous to contend that Miller had no sensible opportunity to contradict that case. He denied the partnership, in the face of overwhelming evidence.

The Tribunal failed to make a finding and/or give reasons for any finding in respect of the plaintiff's constructive trust claim and on other submissions worthy of consideration - Grounds I and M

124 Ground M of Mr Miller's proposed notice of appeal states:

The learned senior member erred in law in failing to make a decision on the following matters:

(a) should the property be sold pursuant to s 228 of the Property Law Act and if so, how should the sale proceeds be distributed pursuant to s 233 of the Property Law Act?

(b) what were the terms of the partnership agreement between the parties?

(c) that the Applicant had the right to withdraw his own funds?

125 The Tribunal was not called upon to decide the matters in para (b) and (c), nor was I required for the determination that Brabham Martin and Miller were in a partnership.

126 The defendants agree that an error of law has occurred on ground(a) by the Tribunal's failure to make a determination pursuant to s 228 of the Property Law Act 1958 that the beach house should be sold and how the sale proceeds should be distributed. To that extent only, the appeal will be allowed.

127 In his proposed notice of appeal, Mr Miller contends that the Tribunal erred in law by failing to deal with his claim based on constructive trusts. Ground I of his proposed notice of appeal states:

The learned senior member erred in law by failing to make a finding and/or failing to give reasons for any finding in respect of the Applicant's claim that the Respondents hold their respective interests in the Beach House for him on a constructive trust because:

(a) such a claim was raised for determination by the senior member (Reasons, para 2);

(b) the learned senior member did not state any findings of fact relevant to that claim including whether the applicant intended to vest beneficial ownership in the Respondents or whether the vesting of beneficial ownership was for a purpose which has now failed;

(c) the learned senior member did not refer to any authorities relevant to that claim;

(d) the learned senior member did not consider the evidence relevant to that claim;

(e) if and to the extent the learned senior member had decided the matter adversely to the Applicant, the senior member's reasons do not disclose or explain his process of reasoning.

128 I have already observed the obvious: the Tribunal's reasons do not give any consideration to the claim for a declaration based on a constructive trust. The Tribunal's closing words are: 'Since I am not satisfied on the balance of probabilities that the money used to purchase the Beach House belonged solely to Mr Miller no resulting trust arises and so the application will be dismissed.' But, it is also plain that in the way the case was pleaded, and conducted for Miller, the constructive trust case was not propounded. It fell collaterally on the same basis as the resulting trust case fell; that is, the beach house was partnership property and it was intended, on the evidence, that all three partners take beneficially and equally. Moreover, integral to that determination was the Tribunal's rejection of Miller's antithetical case that the relationship was defined by the unwritten agreement and not a partnership.

129 The allegation in paragraph 14 of the Points of Claim was:

By reason of the matters pleaded in paragraphs 1 to 6 herein, the first and third Respondents (Martin and Brabham) hold their respective interests on resulting trust, alternatively constructive trust, for the Applicant and the second, fourth, fifth, sixth and eighth Respondents hold their respective interests on constructive trust for the Applicant.

130 Paragraphs 1 to 6 of the points of claim, on which that conclusion of law is based, are confined to saying that Miller purchased the beach house and paid all of the purchase price and paid all of the insurance, rates, outgoings and other expenses for the property. Come the points of reply, and not before, Miller alleged the unwritten agreement under which he said the respondents made no contribution and hence gained no proprietary interest. What matters is that there was no distinction in the points of claim between the resulting trust and the constructive trust. Nothing else in the allegations provided any basis for any form of constructive trust. Thus, it is plain that the pleading only raises the issue of whether a trust arose by reason of Miller paying the whole of the purchase price. The closing submissions to the Tribunal were put the same way. They referred only to the principles concerning resulting trusts. There was no consideration given to the constructive trust claim and no reference to principle or authority, yet the written submissions on this appeal see fit to contend error was made by the Tribunal in not doing so.

131 Thus, on the pleadings and on the closing submissions on behalf of Miller the Tribunal member correctly commenced the reasons by saying:

1. By this proceeding the applicant, Mr Miller, seeks a declaration that the respondents hold their respective interests in the beach house for him on a resulting or constructive trust. In the alternative he seeks an order that the beach house be sold and, after the deduction of the selling costs, the whole of the net proceeds be distributed to him.
2. In each case the ground of the claim is that, on Mr Miller's evidence, he provided all the money to purchase the beach house and has also paid all insurance, rates, outgoings and other expenses in respect of it since its purchase.

132 This is not the occasion for an exegesis on the law of constructive trusts. One of the situations in which a constructive trust may be declared is on the basis of:

The general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions had been made in circumstances in which it was not intended that the other party should enjoy them.[46]

133 In Muschinsky v Dodds an unmarried couple purchased land with the intention of renovating a cottage on the land and to erect a house on the land. The woman paid for the land from her own funds and agreed to include the man's name on the title if he undertook to renovate the cottage and pay for the installation of a pre-fabricated house. The land was transferred to them as tenants in common in equal shares. The parties subsequently separated without any renovations or acquiring a house. The woman claims sole beneficial ownership of the land. Although the whole of the purchase price was provided by the woman, on the facts, the presumption of a resulting trust was rebutted on the grounds that there was an intention that the man be on the title and have the benefit as a tenant in common in equal shares. Despite that, a constructive trust though was imposed on the following basis -

Like most of the traditional doctrines of equity, it operates upon legal entitlement to prevent a person from asserting or exercising a legal right in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct [citation omitted] ... Those circumstances [giving rise to the principle] can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that the other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him to do so [citation omitted].[47]

134 Thus, in Muschinsky the circumstances precluded the man from obtaining against the woman a one half ownership of the land to the extent that it would be unconscionable for him so to do. But in this case, once the Tribunal rejected the unwritten agreement, and found there was a partnership, and that the property and improvements were paid for by drawings from the partnership account with the acknowledged intention that Brabham and Miller have the equal beneficial ownership, then there was no basis for the assertion of a constructive trust.

The Tribunal erred in making findings not reasonably open on the evidence before it - Ground J

136 A determination of fact can never give rise to an error of law, but ordinarily it will not be so unless it is shown that the fact finding tribunal arrived at a finding that was simply not open to it. To perceive an error of law in the ultimate conclusion by reason of a totally unsubstantiated finding which is critical to it can rest on the recognition of an unstated premise that the Tribunal will proceed only according to the evidence and not arbitrarily, according to some frolic of its own: see S v Crimes Compensation Tribunal.[48] Secondly, it is said the word 'reasonably' is a distraction. S v Crimes Compensation Tribunal explains that the word reasonably is used to emphasise that when judging what was open and what was not open, one is speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The case says that the danger of using the word 'reasonably' lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to a question of law, simply because that finding is regarded as 'unreasonable'. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.[49]

137 First, Miller contends that it was not reasonably open for the Tribunal to find that the purchase money for the beach house did not solely belong to him. As the respondents submit, this amounts to a submission that the Tribunal erred in not finding that the purchase moneys were solely paid by Miller. That was his allegation and it had to be proved to establish the presumption of the resulting trust.

138 The Tribunal accepted that the amount of $282,820 was deposited into the partnership account, and it was the proceeds of sale of shares in Coles Myer in the name of New Kapital Investments. The relevant conclusion was that the money paid into the partnership account was partnership money. That is what defeated the case for a resulting trust, and collaterally, defeated the case for a constructive trust. The money was paid into the partnership account and then used to buy bank bills in the name of all three partners and then to purchase the beach house and the apartment at Surfers Paradise. The objective evidence to which I have made reference in this judgment made it not only open, but I think compelled the view that there was an evident intention that the beach house was a partnership asset in which Brabham, Martin and Miller had an equal beneficial interest, especially given the Tribunal's rejection of his case concerning the unwritten agreement which, like the conclusion that there truly was a partnership, was not challenged on this appeal.

The Tribunal erred by taking into account irrelevant considerations - Ground K

139 Miller submits that the Tribunal erred in law by taking into account these irrelevant considerations:

(a) moneys spent on race horses after the purchase of the Moggs Creek beach house;

(b) moneys spent on holidays and other real and personal property after the purchase of the Moggs Creek beach house;

(c) moneys deposited in an account owned by Tegal Pty Ltd after the purchase of the Moggs Creek beach house; and

(d) the fact that after the plaintiff's money was paid into a joint bank account it was used in the purchase of bank bills in the names of all three partners.

140 It is said that those matters were irrelevant to the determination of the issue of the ultimate source of the funds for the purchase of the beach house, and, they were irrelevant to the determination of the issue whether there was evidence of an intention on Miller's part to transfer a beneficial interest in the beach house to Brabham and Martin.

141 The Tribunal's reasons state that the racehorse, Rapavan, was purchased by Miller in January 1988 for $62,000 by a cheque drawn on his personal account. He said he paid for Rapavan from his winnings of $101,107.80 at the Melbourne Cup in November 1987, a winning which Brabham and Martin acknowledged had occurred. Miller said the other horses were purchased using funds from Tegal Pty Ltd a company in which the shares were owned by the three partners. Rapavan and the other horses were registered in the names of all three partners. The Tribunal said:

When Mr Miller was asked why he did this if the horses were not purchased from partnership funds he said that it was in order that Mr Martin and Mr Brabham could enjoy free access to race meetings as owners. He did not say whether they attended race meetings and according to Mr Martin's evidence he was not interested in horse racing. Expenses with respect to the horses appear to have been met, at least partially, from the Partnership Account.

142 The relevance of this, and other evidence, is evident in paragraph 194 of the Tribunal's reasons in which the Tribunal sets out a litany of matters revealing the basis on which the Senior Member had 'a number of concerns' that gave reason not to believe Miller's evidence on the question whether the money going into the partnership account was all of Miller's personal money and that his conduct in allowing assets to be put in the names of all three of them was explicable because he was a wealthy man and was generous to his friends. The fact that the three partners were registered as owners of the race horses was of itself not decisive of the ultimate question, but it was plainly relevant to show, as part of the exercise of looking at the evidence as a whole and not in a piece meal way, that as a consistent modus operandi in this relationship there were a number of assets that were in the names of all three partners.

143 The same can be said for the evidence of the money spent on holidays and other real and personal property after the purchase of the beach house. That too was part of the body of circumstantial evidence to which the Tribunal looked to judge the plausibility of Miller's explanation that all money going into the partnership was his money because he was wealthy and generous to his friends. Most importantly, as the respondents emphasise, the Imperial Surf property was funded from the same partnership account using the balance of funds that had been invested in the bank bills which had been deposited into the partnership account shortly before the acquisition of the beach house.

144 The third matter said to be irrelevant concerns moneys deposited in an account owned by Tegal Pty Ltd. That was dealt with by the Tribunal at 124 to 134 of its reasons. In evaluating that evidence, the Tribunal concluded that the evidence was equivocal and it does not appear to form any part of the process of reasoning for the Tribunal's ultimate conclusion.

145 The fourth fact, contended to be irrelevant, was the payment of the $282,820 into a joint bank account and then used to purchase bank bills in the name of all three partners. I think it is simply fanciful to say that this matter was not relevant. To the contrary, it was not only relevant but quite probative, with other facts, in ascertaining whether or not the funds were intended to be partnership property from which to acquire partnership assets.

146 Accordingly, in my view apart from Ground M none of the grounds of appeal are made out and apart from that ground the appeal ought be dismissed. Before stating proposed orders, I wish to return for completeness to the question of jurisdiction.

147 In his first written submissions on the subject, Miller stated:

1. ...I don't see jurisdiction as the major issue in this case, the major issue is the multiple use of chains of false evidence to achieve the findings in Reasons dated 3 June 2016, which would be critical independent of jurisdiction.
2. I prefer not to charge my former friends in criminal proceedings, if I eventually get natural justice, and if the injustice against me is found.

148 Subsequently, the Court received from Miller written submissions on jurisdiction dated 5 April 2017 which appear to have been composed by a lawyer and which attended to the question.

149 The defendants provided written submissions dated 24 April 2017.

150 The commencement point is that VCAT is a creature of statute and does not have a general equitable jurisdiction. It is assumed that once VCAT's original jurisdiction is invoked on a matter within its original jurisdiction, it does not have accrued jurisdiction as occurs in the federal context in which a matter within jurisdiction may include a cause of action arising under another non-federal law as long as it arises out of a common transaction or facts, and is not severable from the federal claim. [50] But it is open to Parliament, expressly or by implication, to give the power or ― if the Tribunal has a duty to act according to law ― give it the duty to recognise and apply equitable doctrines, defences and remedies.[51]

151 Miller's points of claim included a claim under s 228 of the Act that the beach house be sold and an order under s 223 of the Act that the net proceeds of sale be distributed to him, or alternatively in such proportions as the Tribunal shall determine. There can be no doubt that the Tribunal had the jurisdiction to hear and determine those claims, brought by a person who was a co-owner as defined under the Act. And he was entitled to invoke the original jurisdiction of the Tribunal under Part IV and apply for orders for the sale of the land and the division of proceeds among the co-owners. Once a co-owner makes such a claim, the Tribunal's jurisdiction under s 228 is to make any order it thinks fit to ensure that a 'just and fair' sale or division of land or division of proceeds occur. In that regard, under s 233(2)(c) in determining whether to make an order, the Tribunal must take into account amongst other things -

(a) any amount that a co-owner has reasonably spent in improving the land or goods;

(b) any costs reasonably incurred by a co-owner in the maintenance or insurance of the land or goods;

(c) the payment by a co-owner of more than that co-owner's proportionate share of rates (in the case of land), mortgage repayments, purchase money, instalments or other outgoings in respect of that land or goods for which all the co-owners are liable; ...

152 In exercising jurisdiction under Part IV of the Act and considering what order ought be made 'to ensure that a just and fair sale or division of land or goods occurs' there will be a necessity intrinsic to that task, to be decided according to law, to determine the nature and extent of existing interests in the co-owned property be they at law or in equity. That is, in order to carry out and properly adjudicate the conferred jurisdiction, the Tribunal may have to consider the nature and extent of the interests that exist to decide if adjustments are to be made to a co-owners interest and to carry out the statutory jurisdiction to order a just and fair sale or division of land. It will be quite a different matter, of course, if a co-owner applied to VCAT not under Part IV of the Act, but in some other way for the declarations of trust that were sought in this case.

153 That view was supported by decisions to which I was taken made by the Tribunal. In Sherwood v Sherwood [52] Senior Member Riegler was dealing with a situation of a coowned property held as joint tenants in which the question was whether a constructive trust should be imposed, arising out of a failed endeavour. It also concerned a resulting trust. The Tribunal found it was 'just and fair' that the legal interests in the property be adjusted under the Act to take into account the unequal contributions to the purchase price. The Tribunal concluded that a resulting trust arose by reason of the unequal contributions to the purchase price such that it was fair to vary the legal interests according to the contribution made. That is, once the original jurisdiction of VCAT is properly invoked under Part IV of the Act by a coowner, the exercise of that discretion to make an order for sale or division of the property may, depending on the case, necessarily involve findings about the nature and extent of interests held in the land according to equitable principles or remedies. It was well observed I think by Senior Member Riegler in Trakas v Aravopoulos[53] that the giving of relief under the Act and the making of adjustments must necessarily involve an alteration of parties rights and interests at common law and in equity, the discretion bestowed upon the Tribunal under the Act to do what was 'just and fair' was not based upon idiosyncratic notions of justice and fairness, but rather taking responsibility to do that which is just and fair having regard to the general law as applied to the facts as found.

154 There may be a question whether the Tribunal can or ought give a declaration as a remedy. But it is now clear to me that the Tribunal can certainly make findings about beneficial interests in the land under resulting or constructive trusts for the purposes of and in order to make its ultimate determination under s 228 or s 233 of the Act.

155 In the present is case, there is the oddity that the Tribunal's order was circumscribed to say only that the proceeding was dismissed. That means the entirety of the proceeding including the claims under the Act. That also meant the Tribunal gave no consideration to the statutory claims but confined itself to the question of the resulting trust without then applying that finding to exercise the jurisdiction to determine what was just and fair. The analysis is not to impeach that finding as beyond jurisdiction. Miller properly invoked the jurisdiction under Part IV of the Act. The remedy, as the respondents have properly conceded, is that the proceeding must now be remitted to the Tribunal so that it may exercise its jurisdiction under Part IV of the Act, and that jurisdiction is to be exercised according to the findings that have already been made on the question of the resulting trust.

156 I propose to make the following orders, subject to exceptions or improvements or submissions by the parties -

1. The plaintiff has leave under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) to appeal paragraph 1 of the amended order made by the Tribunal on 3 June 2016 in proceeding BP 244/2015.

2. The appeal is allowed in part, and only on Ground M(a) of the plaintiff's notice of appeal filed 9 September 2016.

3. Paragraph 1 of the Tribunal's order is set aside but only to the extent that it dismissed or had the effect of dismissing the claims ('the statutory claims') -

(a) under s 228 of the Property Law Act 1958 (Vic) as made in paragraph C of the plaintiff's Points of Claim dated 26 February 2015; and

(b) under s 233 of the Property Law Act 1958 (Vic) as made in paragraph D of the Points of Claim.

4. The proceeding is remitted to the Tribunal to be constituted by the same Senior Member who made the order, to enable the Tribunal to determine the statutory claims according to the evidence already heard and the findings already made by the Tribunal as published in Miller v Martin (Building and Property) [2016] VCAT 854 (3 June 2016), and after hearing or rehearing any further submissions on the determination of the statutory claims according to the evidence already heard and the findings already made by the Tribunal.

5. For to the purposes of the conduct of the remittal, the Tribunal may make such procedural directions or procedural orders as it thinks fit in aid of determining the matter on remittal.

157 These proposed orders leave untouched the Tribunal's second order that reserved the costs of the Tribunal proceeding, and leave open the question of costs of this appeal proceeding. The Court will need a good reason not to apply the ordinary rule that costs follow the event. A question arises about the costs consequences of the conceded error of law, which has produced the remittal.

[1] This provision came into operation on 1 July 2006. The power to adjust the interests of co-owners applies to legal and equitable interests acquired before the commencement of this section: see Tien v Pho [2014] VSC 391 [29]-[39].

[2] See s 234C to 234G.

[3] Section 97 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').

[6] See Court order dated 17 March 2017 with attached statement of reasons.

[8] Miller v Martin (Building and Property) [2016] VCAT 854.

[9] 'Respondents Closing Submissions' dated 23 March 2016, para 228(a) and (b).

[10] 'Submissions of the Applicant' dated 13 April 2016.

[11] Miller v Martin [2016] VCAT 854 [140]. See exhibit JEM-28.

[15] See paragraphs 4 to 30 and 36 to 40 and the exhibits produced.

[16] See [1999] VSCA 117; [1999] 3 VR 331, 337 [16].

[17] See Miller v Martin and Others [2016] VCAT 854 [205].

[19] See Napier v Public Trustee (1980) 32 ALR 153, 158 and Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 246-7, 2667. See generally Heydon and Leeming, Jacobs Law of Trusts in Australia (8th Ed) at [1210] ff.

[20] See Giumelli v Giumelli (1999) 196 CLR 101, 112. See Young, Croft and Smith, On Equity (Lawbook Co, 2009), [6.660].

[21] See Muschinski v Dodds [1985] HCA 78; (1984) 160 CLR 583.

[22] Ibid, 609 (Brennan J) and 618-9 (Deane J).

[25] Section 24(1) Partnership Act 1958 (Vic). See K L Fletcher, The Law of Partnership in Australia (9th ed. 2007 Thomson Lawbook Co) 137-9.

[30] See Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 as referred to by the Tribunal at [13] and [14].

[31] Submissions of Applicant, 13 April 2016 [13].

[39] See J D Heydon, Cross on Evidence (10th ed), [17460].

[41] See Victoria v Turner [2009] VSC 66; (2009) 23 VR 110 [241].

[46] See Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137, 148.

[47] [1985] HCA 78; (1984) 160 CLR 583, 619-620.

[48] [1998] 1 VR 83, 90.

[50] See Tucci v VCAT [2010] VSC 425 [48].

[52] [2013] VCAT 1746.

[53] [2016] VCAT 592.