Sckaff v Sckaff

Supreme Court of NSW|2023-06-23|Before: Robb J

JUDGMENT

This case involves a dispute between two brothers and their respective wives concerning the beneficial ownership of a home in Dulwich Hill that I will call "No 6".
The plaintiffs are George Sckaff and his wife Anne Thompson. The defendants are Richard Sckaff and his wife Nada Sckaff.
As most of the people closely involved in the events that are relevant to this case are members of the Sckaff family, I will, with no disrespect intended, refer to members of the family by birth or marriage by their first names.
No 6 was purchased on 5 February 1988, under a contract of sale in which Richard was the purchaser. Richard was the mortgagor in respect of the debt borrowed to complete the purchase. Richard became the registered proprietor of No 6. Yet, from a disputed date shortly after the purchase of No 6, George has been permitted to live in the property as his home without payment of any occupation fee. George and Anne have brought up their children in No 6. They have renovated the property at their cost on three separate occasions. Their belief that they were the sole beneficial owners of No 6 was not disturbed in any formal way until Richard served on them an eviction notice on 12 December 2014. On George's reckoning, that was after George had occupied No 6, believing that it was his property, for about 25 years before Richard took any formal step to challenge his right to possess No 6.

Background

I will begin by setting out the background facts that have been taken largely from the parties' separate but comprehensive chronologies of relevant events.
George's and Richard's parents were their father, Fahad, and their mother, Souad, who were born in Lebanon in 1919 and 1927, respectively.
Fahad and Souad migrated separately to Australia from Lebanon in or around 1955, before marrying and starting a family that consisted of Mary, the eldest child, then Richard and George and finally Adele, the youngest child. Richard and George were born in 1964 and 1968 respectively.
Fahad and Souad acquired their family home at No 12 in the same street as No 6. According to Richard's evidence, they paid off the mortgage over No 12 in the early 1970s.
Fahad passed away on 27 February 1996, and Souad died on 18 October 2013, after having moved out of No 12 to live in a nursing home in 2007 as a result of the onset of dementia.
Richard was employed at a newsagency between 1974 and 1977 as a paperboy, and between 1977 and 1980 as a paperboy and shop assistant. Richard began working as a bank clerk at the Commonwealth Bank of Australia (CBA) on 28 April 1981, and continued in that employment until 1998. Richard was promoted over this period. In 1986, Richard commenced working as a newspaper delivery driver for John Fairfax Publications. This employment continued until 1996. Richard began working casually for the TAB, particularly during racing carnivals, in 1988. Between 1992 and 1994, Richard established a newspaper delivery business, in the name of R and N Sckaff Enterprises Holdings (Aust) Pty Ltd, in which he bought newspapers wholesale and resold them to retail outlets and home delivery vendors. Richard ceased his employment with the CBA on 23 October 1998, as his newspaper business grew and became his sole source of income. The evidence concerning the income earned by Richard and his expenditures is of particular relevance to the issue in this case of whether Richard had the financial capacity to save the money that was used to pay the deposit for the purchase of No 6, and to repay the mortgage debt on that property in an accelerated time of about six years. I will return to this issue in more detail below.
A residential property that I will call No 42 was purchased in the name of Richard and Mary on 13 April 1983 for a price of $95,000. Richard's case, supported by Mary's evidence, is that they purchased the property with their own money saved from their earnings. George's case is that No 42 was purchased with money supplied by Fahad and Souad, notwithstanding that the mortgage was in the name of Richard and Mary. No 42 was leased to a tenant. George's case is that the tenant paid the rent to Souad, who gave the money to Richard to deposit it in repayment of the mortgage. That claim is denied by Richard.
The mortgage over No 42 was discharged on 17 June 1986. On 21 September 1987, Richard bought Mary's half share in No 42 for a price of $30,000, notwithstanding that the transfer of the property recorded the consideration as being $57,000.
Fahad was retrenched from his employment. There is a dispute about the date of the retrenchment and the amount of Fahad's retrenchment pay. Richard says that it happened in about January 1982 and that Fahad received $15,000. George's case was that the retrenchment occurred in around 1987 and Fahad received a retrenchment payment of about $60,000.
No 6 was purchased on 5 February 1988 for the price of $110,000. Until 9 January 2014, Richard was the sole registered proprietor of No 6. On that date, Richard transferred No 6 to himself and his wife, Nada, as joint tenants.
For some period after the initial acquisition of No 6, Richard carried out a renovation of the property. There is a dispute concerning the extent of the renovation and the time taken to carry it out. Richard's case is that he asked George to move out of their parents' house, where he had been living, and to go to No 6 in early 1990. George said that he moved into No 6 in around 1989. This difference in recollection is immaterial.
George has lived in No 6 up to the present, being a period of some 34 years. Anne moved into No 6 to live with George in around January 2001, and they married on 20 September 2013. No 6 has been their family home, in which they have raised their two children.
There has never been a formal legal arrangement between George and Richard concerning the entitlement of George to occupy No 6 to the exclusion of Richard. George has never been asked to pay, and has never paid, rent. There is a dispute between the parties about the period over which George has paid the costs of the rates and utilities for No 6. Richard claims that he met those costs until mid-1994, and thereafter they were paid by George by agreement. George says that he paid those costs from a much earlier date. Richard claims that he has always paid the house and contents insurance for No 6. George accepts that, but says that he has always repaid Richard in cash. That claim is denied by Richard.
Over the period of their occupation of No 6 as their home, George and Anne have carried out three separate renovations, in 2001, 2008 and 2013; the middle one being a substantial reconstruction of the dwelling on the property.
Over the period during which No 6 has been occupied by George, the property has been the subject of a number of mortgages. The first was a mortgage for $60,000 in favour of the CBA, by whom Richard was employed, that was granted at the time of purchase of No 6 to fund the payment of part of the price. Mortgages have also been granted over No 6 to fund the purchase of a bread delivery business by George, and to secure part of the purchase price of a rural property at Bargo, that was acquired by Richard and Nada with the view of subdivision in mind. On 9 January 2014, Richard and Nada granted a further mortgage over No 6 that remains outstanding. Exhibit P2 consists of two statements of account as at 30 June 2023 issued by the one lender to Richard and Nada in respect of separate loans of $290,000 and $350,000 made on 9 January 2014. The amounts outstanding as at 31 May 2023 were $232,434.80 and $283,779.36 respectively.
Richard and Nada moved into No 6 with George in about December 1991, after their marriage in November of that year. In around May 1992, Richard and Nada moved into No 42 as their home.
In or around 1994, Souad travelled to Lebanon, where she apparently owned five parcels of land. It is said that Souad sold three parcels and repatriated the funds to Australia. There is a dispute as to whether Souad used the money to repay part of the mortgage on No 6, as claimed by the plaintiffs, or whether she applied the proceeds of sale as claimed by Richard. Richard asserted that Souad divided the proceeds between the family of her brother and sister. Richard also said that Souad transferred the title to one of the remaining properties in Lebanon to him, and that later she transferred the title to the other to Richard's daughter. If Richard is correct, then Souad did not give any part of her five properties in Lebanon to George.
The mortgage in Richard's name over No 6 was discharged on 24 August 1994.
Richard purchased No 10, which is in the same street as No 6. Richard's chronology gives inconsistent dates for the purchase as June 2005 and 23 May 2008. The price was $550,000. Richard and Nada moved into No 10 in July 2008. Richard sold No 42 on 11 June 2008.
The single expert valuation witness prepared a report that valued No 6 at $2,200,000 as at 14 June 2023. The expert expressed the opinion that the renovations of No 6 that were carried out by George and Anne have added $250,000 to the value of the property in current terms.
Richard did not seek to disturb George's and Anne's exclusive occupation of No 6 until 12 December 2014, when Richard prepared and served upon George and Anne an eviction notice. George and Anne did not accept the notice and they have remained in occupation of the property to this day. Richard caused a notice to terminate tenancy agreement to be served on George and Anne on 26 November 2015 that required that they give vacant possession by 31 May 2016.
Richard has claimed that he was forced into the course of seeking to evict George and Anne from No 6 because he began to suffer health problems in 2012 and his business of distributing newspapers began to fail. He claims that he needed to sell No 6 to put his own family finances on a more secure footing.
Whatever may be the true reason for Richard not seeking to disturb George's, and later George's and Anne's, exclusive occupation of No 6 for an unbroken period of about 25 years, it is the case that Richard did not seek to do so until after Souad passed away. That has had the important forensic consequence that the Court has been deprived of Souad's evidence, or any objective record of her understanding of the basis upon which No 6 was acquired in Richard's name, but used exclusively as George's home.

NSW Civil and Administrative Tribunal proceedings

The defendants commenced proceedings against the plaintiffs in the NSW Civil and Administrative Tribunal (the Tribunal) on 12 May 2017. The defendants applied for a termination order under s 94 of the Residential Tenancies Act 2010 (NSW) (the RT Act).
On 23 February 2018, a Principal Member of the Tribunal made the following orders: (1) Pursuant to cl 6 of Part 5 of Sch 4 to the Civil and Administrative Tribunal Act 2013 the proceedings are transferred to the Supreme Court of New South Wales and to continue before that court as if the proceedings had been instituted there, to be heard with [these proceedings]; … (3) The Tribunal notes that the applicants' claim in these proceedings is to become a cross-claim seeking among other things declaratory relief in the Supreme Court proceedings; (4) The hearing listed for 26 February 2018 is vacated; and (5) The respondents are to pay the applicants' costs of 22 February 2018 and the costs thrown away by the vacation of the hearing listed for 26 February 2018, as agreed or assessed.
In reasons published on 23 February 2018, the Principal Member stated: 9 The order sought by the applicant in the Tribunal proceedings is for termination of the residential tenancy agreement under s 94 of the RT Act, which provides: 94 Termination of long term tenancies (1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement - (a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and (b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and (c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case. (2) A landlord may make an application under this section without giving the tenant a termination notice. (3) The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. (4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made. 10 As identified in the procedural directions made on 31 August 2017, the determination of the application in the Tribunal requires consideration of whether there is between the parties a "residential tenancy agreement", that is, "an agreement under which a person grants to another person for value a right of occupation of residential premises for the purpose of use as a residence" (s 13 RT Act), and if so, whether that residential tenancy agreement should be terminated pursuant to s 94 of the RT Act. 11 In summary, the applicants' case in the Tribunal as outlined in the affidavit of Richard Sckaff is that he purchased the Property in 1988, paying the deposit and the mortgage payments; that in 1990 George Sckaff started living there; that in 1992 after they were married Richard and his wife Nada moved to premises in Campsie; that in 2008-2009 Richard agreed to George undertaking renovations; that in 2014 Richard gave notice to George to vacate; and that in November 2015 he served a termination notice. In an Outline of Submissions on jurisdiction dated 2 August 2017, the applicants submit that at least since 1994 Richard Sckaff has permitted George Sckaff to reside in the Property in exchange for George Sckaff agreeing to pay utilities bills, and that it was an implied term of the agreement that George Sckaff and subsequently his partner would look after, maintain and repair the Property. The right of residence granted at least since 1994 was in exchange for the payment of utility bills, looking after, maintaining and repairing the Property and undertaking a renovation of benefit to the applicants as well as the respondents. That is sufficient to constitute "value" for the purposes of the definition of "residential tenancy agreement" in s 13 of the RT Act, and on that basis, the applicants contend there is a residential tenancy agreement between the parties. 12 The respondents dispute that contention. Based on the Statement of Claim in proceedings 2018/00054674, in summary the respondents' position is that the Property was purchased by the parents of Richard and George Sckaff in 1985, with the intention of their parents and Richard and George Sckaff that the Property was to be the property of George Sckaff, and further or in the alternative that at the time of the purchase the Property was to be purchased and put in the name of Richard Sckaff to be held in trust for George Sckaff; and that, in reliance on that George Sckaff moved into the Property, and paid the rates, taxes and utilities and made improvements in 2001, 2008 and 2013 at a cost in excess of $300,000. 13 In the Supreme Court proceedings the respondents seek a declaration that the Property is held on trust for George Sckaff or both respondents; an order to transfer the Property and discharge the mortgage registered against the Property, or an order to give restitution in respect of the respondents' contributions to the Property; and an order that the Property be charged in favour of the respondents.
The Principal Member then considered the reasons for making the orders that are set out above, and then added: 18 However s 81 of the RT Act does not confer power on the Supreme Court (or any other court) to terminate a residential tenancy agreement, and pursuant to s 109 of the RT Act only the Tribunal can make an order for possession. The recent amendment to the NCAT Act to insert Part 3A, in particular s 34C(3), which would confer on the District Court or the Local Court jurisdiction that the Tribunal would have, applies only in proceedings where the Tribunal does not have jurisdiction to determine the application or appeal because its determination involves the exercise of "federal diversity jurisdiction", being jurisdiction of the kind referred to in section 75 (iv) of the Commonwealth Constitution. 19 In similar circumstances to the present Tribunal proceedings, in Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 Stevenson J held that the Supreme Court does have jurisdiction to adjudicate on the dispute concerning a residential tenancy agreement, and would have power to make a declaration as to any entitlement to have the residential tenancy agreement terminated, and to remit a matter to the Tribunal for the making of an order under s 81 and s 83 of the RT Act. 20 If the Supreme Court determines [these proceedings] in favour of the applicants in the Tribunal proceedings, that court could make a declaration in terms similar to those considered by Stevenson J. In those circumstances, the supreme court has jurisdiction in the matter as required by cl 6 of Part 5 of Sch 4. Transfer of the Tribunal proceedings would potentially save time and therefore costs as the Supreme Court can decide all the matters in dispute, other than to make orders terminating any residential tenancy agreement and ordering possession. Depending on the outcome, that court could remit the matter to the Tribunal for consideration of whether to make orders for termination and possession. The proceedings commenced in the Tribunal in RT 17/23730 should be transferred to that court. It follows that the hearing listed in the Tribunal on 26 February 2018 is to be vacated.
The substance of the Principal Member's reasons that have been set out above caused the defendants to make a submission that, depending upon the conclusions reached in these reasons, the matter should be relisted after the reasons are published to enable the parties to make submissions as to the orders that are appropriate in the light of the transfer of the proceedings in the Tribunal to this Court. That will only be necessary if the Court's decision is consistent with the defendants having a right to obtain an order that has the effect of ejecting the plaintiffs from No 6.

Statement of claim

George and Anne commenced these proceedings by statement of claim filed on 19 February 2018. The relief claimed was as follows: 1. Declaration that the whole or such portion as this Honourable Court deems fit of the Property known as [No 6] ("Property") is held on trust for the First Plaintiff or the First and Second Plaintiffs. 2. Order that the First and Second Defendants forthwith take all necessary steps to effect the transfer of the Property to the First Plaintiff or the First and Second Plaintiffs, and discharge the mortgage registered against the Property. 3. Alternatively, an order that the Defendants give restitution to the First Plaintiff or First and Second Plaintiffs in respect of their contributions to the Property. 4. Order that the Property be charged in favour of the First Plaintiff or First and Second Plaintiffs to the value of their contributions to the Property. 5. Such other order as this Honourable Court deems fit. 6. Costs.
The plaintiffs pleaded facts to support their claims for relief under the headings "failed joint endeavour", "improvements to the property", and "estoppel". I will discuss the factual basis of the plaintiffs' claims more fully below. The plaintiffs pleaded that the purchase price of No 6 was approximately $110,000, and that Fahad paid $60,000 towards the price, and that the balance of the price was paid by means of a loan from the CBA to Richard secured by a mortgage over No 6. The plaintiffs also alleged that Fahad and Souad gave money to Richard for the purpose of paying the mortgage.
By the time of the five-day hearing that commenced on 19 June 2023, the plaintiffs relied upon a second amended statement of claim filed on 26 July 2019. The relief claimed was the same as in the statement of claim filed on 19 February 2018. By this stage, the basis of the plaintiffs' claims for relief was pleaded under the headings "common agreement or intention and constructive trust", "joint endeavour and constructive trust", "improvements to the property", "failure of joint venture and departure from common intention", "estoppel by representation concerning ownership of property", "estoppel by convention concerning ownership of property" and "estoppel concerning improvements".
The second further amended statement of claim also pleaded the granting of the mortgage over No 6 in December 2003 for the purpose of Richard and Nada purchasing a property at Bargo in this State. However, in the period after the filing of the second amended statement of claim, the Bargo property was sold for a price of $3.9 million and the mortgage over No 6 was discharged. The mortgage has been replaced by the further mortgage granted on 9 January 2014 that is referred to above. Accordingly, the plaintiffs still seek an order that Richard and Nada discharge a mortgage granted over No 6, albeit that the mortgage is a different one than was originally contemplated.
The Court Book included correspondence between the solicitors for the parties in relation to the provision of particulars of the plaintiffs' statement of claim. There was no reference to the particulars that were given at the hearing or any suggestion that the particulars were relevant to the determination of the proceedings. Accordingly, I have had no regard the correspondence concerning the provision of particulars.

Cross claim

On 3 July 2018, the defendants filed a cross claim in this Court in which they sought the following relief: 1. Declarations that: a. there is a residential tenancy agreement in place in respect of the property at [No 6] (the "Property") between the First Cross-Claimant as landlord and the First Cross-claimant [sic] as tenant (the "Residential Tenancy Agreement"); b. the First Cross-Claimant is entitled to an order terminating the Residential Tenancy Agreement; and c. the Cross-Claimants are entitled to possession of the Property. 2. An order pursuant to section 74MA of the Real Property Act 1000 [sic] (NSW) that the caveat having registered number AK693926 lodged by the First Cross-defendant on the title for the Property be withdrawn or removed within 28 days. 3. An order that the proceedings be remitted to the NSW Civil and Administrative Tribunal to make orders: a. terminating the Residential Tenancy Agreement pursuant to subsection 94 (1) of the Residential Tenancies Act 2010 (NSW); b. granting vacant possession of the Property to the Cross-Claimants pursuant to subsection 94(4) of the Residential Tenancies Act 2010 (NSW); and c. that the Cross-Cross-claimants [sic] ensure that the Property is in good order and condition when they vacate. 4. Costs. 5. Such further or other orders as the Court may determine.
It appears that the confusion in the prayers for relief by which the present plaintiffs are referred to as cross claimants has occurred because both the plaintiffs and the defendants are called cross claimants in the title page to the cross claim.
By the time of the hearing, the defendants' claim was as pleaded in an amended statement of cross claim filed on 14 June 2023. Apart from correcting the references to the plaintiffs in the prayers for relief, the defendants sought the further additional relief: 4. In the alternative, either: a. an order that the proceedings be remitted to the NSW Civil and Administrative Tribunal for determination as to whether to (i) determine whether to terminate the Residential Tenancy Agreement pursuant to section 94 of the Residential Tenancies Act 2010 (NSW), (ii) make an order to grant vacant possession of the Property to the Cross-Claimants pursuant to section 94 of the Residential Tenancies Act 2010 (NSW) and (iii) make an order that the Cross-Cross-claimants [sic] ensure that the Property is in good order and condition when they vacate; or b. an order that within 28 days the Cross-defendants give to the Cross-Claimants vacant possession of the Property in good order and condition.
At the hearing, the defendants acknowledged that, even if they were entitled to succeed in the proceedings, the plaintiffs would be entitled to an order compensating them for their expenditures in carrying out the three renovations of No 6 that the defendants acknowledge were carried out. The defendants' position, as explained at T326.17, was: Despite all that, Richard and Nada do not contest that this is a case in which a balancing of equities is required. We accept that. However, if orders are made in favour of George and Anne, at the end of the day, your Honour will find a remedy for them that does not involve the full transfer of the property. By way of the renovations, it is uncontested evidence that George and Anne added $250,000 to the capital value. That appears in the valuation of Mr Niall Moore, the valuer. It is now the position, contrary to the pleading, on Mr Stewart's evidence this morning, that his figure of $412,643 represented a de-escalated amount identifying what the works were worth at each of the dates when they were made.
The defendants also accepted that, if the Court makes orders that require the plaintiffs to vacate No 6, the orders should allow the plaintiffs an appropriate number of months to do so.

Acquisition of No 6

In addition to the facts that have been set out above in the Background, it will be necessary to examine in more detail aspects of the evidence that are more complex or contentious. Because of the way in which the evidence was presented, that consideration will necessarily be episodic.
I will begin by examining the evidence concerning the circumstances in which No 6 was acquired and the evidence that bears upon the beneficial ownership of the property. (I will consider the evidence given by Richard directed at establishing that he had the funds to pay the whole of the purchase price separately below, in conjunction with the expert accounting evidence called by the parties on that issue).
Because multiple issues have a bearing on the credibility of the evidence given by Richard and George, it will be necessary to defer the consideration of that issue until I have set out my findings on all of the other issues that are relevant to the reliability of their evidence. However, it will be more meaningful if I set out my conclusions about the credibility of the evidence given by the other witnesses after I have set out their evidence relevant to the basis upon which No 6 was purchased.

Richard's 12 May 2017 affidavit in the Tribunal proceedings

Even though Richard is one of the defendants, it is appropriate to start with his evidence because his 12 May 2017 affidavit in support of his application in the Tribunal was the first evidence served on the subject.
Richard said in par 6 that, when he purchased No 6 in 1988, he paid for the deposit out of his own funds and borrowed $50,000 from the CBA, using a staff housing loan. In a later affidavit, Richard corrected that evidence to say that the amount borrowed was $60,000, as it was evident that loan security duty for $60,000 was paid on the mortgage.
Richard said that repayments for the mortgage loan were automatically deducted from his wages, and that the payments were described as "SHL" (meaning 'staff housing loan') on his pay advices. Richard annexed one pay advice for the fortnight ended 27 May 1993, which showed that $65.56 had been deducted for 'SHL'. The SHL deductions would total about $1,700 per year. An amount of $108 was deducted for 'CREDIT UNION'.
Richard said that he also made extra payments to reduce the balance of the mortgage loan between 1988 and 1994. He annexed deposit slip butts that recorded as follows: 28.3.88 $150 11.7.88 $150 17.2.89 $500 5.4.88 $150 18.7.88 $150 6.3.89 $1,000 11.4.88 $150 25.7.88 $150 28.3.89 $1,000 18.4.88 $150 2.8.88 $150 8.5.89 $1,000 26.4.88 $150 8.8.88 $150 21.9.89 $4,000 2.5.88 $150 15.8.88 $150 28.12.89 $6,000 9.5.88 $300 22.8.88 $150 14.6.90 $4,000 16.5.88 $150 23.8.88 $150 13.9.90 $5,000 23.5.88 $150 7.9.88 $150 20.11.90 $5,000 30.5.88 $150 14.9.88 $150 20.11.91 $5,000 6.6.88 $150 19.9.88 $150 11.1.93 $2,000 14.6.88 $150 26.9.88 $150 6.8.93 $3,000 20.6.88 $250 4.10.88 $150 27.11.93 $2,000 27.6.88 $150 24.10.88 $450 13.12.93 $3,000 4.7.88 $150 2.2.89 $1,000 5.1.94 $2,000

The total of these amounts is $50,400. The words "Wedding Money" were written on the deposit slip butt relevant to the $5,000 payment on 20 November 1991. That was the month in which Richard married Nada.
Richard said that, for about 12 months starting in 1989, he carried out renovations on No 6, working each weekend. He said that it was his intention to move into No 6 once he was married. He said that, at this time, George was unemployed and that he exhibited behaviours that made his parents anxious and even angry. Richard gave the following evidence: 14. My mother often complain to me about George's behaviour. I recall that she sometimes said to me words to the effect of: "George is too much for me, I'm too tired." "He hasn't got a job, he will never settle down." 15. I decided to ask George to move out of my parents' house and into the Property. In early 1990, I said to George words to the effect of: "George, I'm putting you in number 6 until I get married and moved in." 16. Initially, I paid all the utilities on the Property as well as keeping up-to-date the building and contents insurances as well as paying for maintenance of the Property.
This evidence is significant for its brevity. It is the only positive evidence given by Richard as to why he allowed George to live in a house of which he was the registered proprietor, save for an answer that Richard gave to a question in cross-examination as to why he did not charge George any money for living in No 6. Richard's response was: "He was my brother" (T 243.30). Given the evidence of the relationship between Richard and George generally, I do not find this response at all credible. Richard did not give any evidence that explained in a positive way why he allowed George, and later his family, to live in No 6 without the need to pay rent, and without any apparent agreement between the two brothers as to the terms upon which George would be allowed to live in No 6. Richard gave no evidence of discussions with George, Anne or his parents on the subject, save for a couple of occasions when Richard claims that he asserted his ownership in response to conduct by George that showed George believed that he was the owner of the property.
George said that in 1992, he and Nada moved into No 42. This property had been tenanted and the tenants moved out in April 1992.
Richard said that in August 1994, he paid out the balance of the mortgage on No 6.
Sometime in mid-1994, according to Richard, he learned from George that George was in receipt of Centrelink payments and he and George agreed that George would pay the utilities bills for No 6. From then on, Richard continued to pay for the insurance. Richard also said that he paid land tax for No 6, which is an issue that I will consider separately below.
Richard said in par 29 that he did not speak to George for approximately three years until Fahad's health became terminal. Fahad passed away on 27 February 1996. Richard said in par 34 that he started to speak with George civilly again around the time Souad took up residence in a nursing home in November 2007.
In 2003, Richard purchased another investment property at Bargo. He granted a mortgage over No 6 to help secure the loan in respect of the new property. Richard said in par 46 that he had the following conversation with George: George: "Why did you mortgage my house?" Richard: "it's not your house, George, you know that."
Richard said that, on about 28 December 2012, he had a stroke and was hospitalised for 3 to 4 days. In par 56, Richard gave the following evidence of a conversation on about 30 December 2012 with George at the hospital: George: "I want the deeds to number 6." Richard: "No, it's not your house. You know that I paid for the house." George went silent. George: "Well, I have decided to get married, later in the year." Richard: "It's none of my business what you do."
It is relevant to a consideration of the probability that the conversations deposed to by Richard as having taken place in 2003 and 2012 occurred, or that, if they did, they were sufficient to inform George that Richard asserted he was the sole owner of No 6, that George and Anne carried out the 2008 and 2013 renovations after the first alleged conversation, and the 2013 renovations after the second alleged conversation. The circumstances in which both renovations were carried out are not consistent with George and Anne understanding that they were not entitled to No 6.

George's evidence

George's first affidavit was sworn on 18 July 2018. George did not reply to Richard's 12 May 2017 affidavit in this affidavit, but did so separately in a further affidavit sworn on 4 March 2019.
In his 18 July 2018 affidavit, George gave the following evidence of his understanding of the circumstances in which No 6 was purchased: 36. [No 6] was purchased for the sum of approximately $110,000 in 1988. 37. It was purchased by my parents in my brother Richard's name. At around this time, my father said to me words to the following effect: - "This is your house, but we put it in Richard's name. I wanted it in your name, but your mother doesn't. She's worried you're going to gamble it away." 38. Prior to buying the house in 1988, my father was made redundant from his work. 39. My father said words to the following effect to me: - "I have received a payout from work for $60,000. We bought Richard the Campsie house. This money from work we will put a deposit on a house for you." 40. The $60,000 was used to pay the deposit on [No 6]. 41. After [No 6] was purchased, Richard painted the inside of the house over a few weekends. I cannot recall what the circumstances were of how Richard came to paint the house. 42. I recall shortly after the house was purchased my father said to me and my brother Richard in the presence of my mother words to the following effect: - "We have put [No 6] in your brother Richard's name as you are a gambler and Richard is not. Your mother is worried that you would gamble the house away. Because it is in Richard's name it will be protected. You won't be able to gamble it away and he will hold it for you." 43. In about April 1989, referring to [No 6], my mother said to me words to the following effect: - "I will buy furniture for the house so that you can move in. This house we buy for you. Now you can live in it." 44. My mother furnished the house for me and purchased for me a bedroom suite which I still have to this day. 45. I moved into [No 6] in about July 1989. I moved into the property as my home and have lived in it as my home and treated it as my home ever since. … 49. During one of his visits my father said to me words to the following effect:- "Your mother and me have been paying the $50,000 loan from the rent money we are getting from the Campsie house. 50. After Richard and Nada moved into the Campsie property in around May 1992, my father said to me words to the following effect:- "Your mother and me have been giving Richard money to continue paying the mortgage for [No 6]."
It is relevant to the evidence in par 49 concerning the rent money for No 42 being used by Fahad and Souad to pay the mortgage on No 6 that George gave evidence, in pars 32 and 33, that Fahad had told him when George was about 18 years old that he and Souad had bought No 42 for Richard, and that he had told Richard to get a loan from the CBA so that he could get a cheaper interest rate. George said that he witnessed the tenants paying the rent money to Souad.
In George's affidavit sworn on 4 March 2019, he denied the evidence that I have set out above given by Richard in his affidavit filed in the Tribunal proceedings. George said that he paid for all of the utilities for No 6, and that, although Richard paid for the building and contents insurance, George always reimbursed him in cash.

Anne's evidence

Anne's evidence in her 18 July 2018 affidavit was that she first met George in 1998 and they were married in 2013. She has lived with George permanently since January 2001.
Anne said in par 18 of her affidavit: 18. After I met Souad but before I moved in with George into [No 6] in January 2001, I had a conversation with Souad who said to me words to the following effect: - "My husband and I buy one house for my son Richard and one house for George. George, his house is number 6. My daughters I give them money when they married." 19. Souad also said to me words to the following effect: - "I buy all the furniture for George's house before he move into it."
Anne gave evidence that she and George paid all of the utilities and rates for No 6. She agreed that Richard paid the home and contents insurance premium, as he had three properties insured under the same policy. Anne said that every year she and George paid their portion for No 6 in cash separately.

Credibility of Anne's evidence

I accept Anne as being a credible and truthful witness whose evidence was as reliable as could be expected given the passage of time since some of the important events took place.
The manner in which Anne gave her evidence in cross-examination gave me no reason at all to doubt her candour. Anne appeared to give careful but brief attention to the questions that she was asked, and then a direct answer that appeared to me to be credible and responsive.
I accept Anne's evidence that she was the one who provided the photo album to the plaintiffs' solicitors that enabled the solicitors to select photographs relevant to the renovation of No 6 and that Anne was not responsible for selecting the photographs or causing the same photographs to be annexed both to her affidavit and George's affidavit. This observation arises out of an attempt to discredit the evidence given by Anne and George because they both annexed the same photographs of the renovation of the property to their affidavits.
A particularly telling part of the evidence given by Anne in cross-examination was that she applied part of her inheritance from what I understood was her grandmother's estate towards the renovation of No 6. It is improbable that a person of her general means would have taken that course, unless they believed that they, or their husband, was the unchallenged beneficial owner of the property on which the money was spent, and that they were not aware of any circumstances inconsistent with that belief. I am satisfied that, if Anne had had any inkling that Richard would claim beneficial ownership of No 6, she would not have expended her inheritance on the renovation of the property without at least raising the issue with Richard and being satisfied that Richard accepted that George was the beneficial owner of the property, so that the money expended would not be for Richard's benefit.

Evidence of Nasser Zahr

Nasser Zahr is a friend of George who met George when they both attended the same public school in 1977. Mr Zahr said that he got to know Souad really well and spoke to her mostly in Arabic, but occasionally there would be words in broken English in the conversation. Mr Zahr said that he had long conversations with Souad as he is fluent in both Arabic and English.
Mr Zahr gave the following evidence in his 1 March 2019 affidavit of conversations with Souad, in around 1988: 21. While I was at the house getting ready to watch the grand final, Souad, came in and we had a conversation. She said to me words to the following effect: - "Fahad (George's dad) and I have purchased this house for George but we put it under Richard's name because Richard is working with the Commonwealth Bank and has settled down. George is not ready to settle down and accept responsibilities and has only just finished school. George is only interested in having fun like most young men of his age." 22. Not long after that conversation and before George moved into [No 6], I remember visiting George at [No 6]. I had another conversation with Souad, his mother, when she said words to the following effect: - "This is George's house and it is my wish that one day George will settle down in the house and marry and have children and look after his affairs and stop going out and partying."

Credibility of Mr Zahr's evidence

Mr Zahr was also a satisfactory and straightforward witness who appeared to give his evidence in an honest and reliable way.
Mr Zahr readily admitted he was a friend of George, and that he had been a close friend of George since the two played rugby league together after they left school. It appears that Mr Zahr had a relatively close relationship with Souad, in the sense that whenever the two were in the same place he would have a cordial discussion with Souad.
I accept Mr Zahr's evidence that he was not influenced in the evidence that he gave of his conversations with Souad by any representations made to him by George in order to encourage Mr Zahr to provide evidence that corroborated the evidence given by George and supported George's case.
Mr Zahr's demeanour when giving evidence was entirely natural and forthcoming, and instilled confidence in the Court that Zahr had a real recollection of the substance of the statements made to him by Souad, notwithstanding the passing of the decades since the conversations took place.

Evidence of Michael Laurence Geoghegan

Michael Laurence Geoghegan was raised at No 5 across the street from No 6. Mr Geoghegan said that he has known George and Richard and the Sckaff family since he was a child in their capacity as neighbours. He attended the same primary school as the Sckaff children and, during the 1960s and 1970s, he frequently played football and cricket with George, and on occasions with Richard. Mr Geoghegan gave evidence that, from 1973 to 1979, he often worked with Richard on a paperboy run. Mr Geoghegan continued living at No 5 until the mid-1990s. Mr Geoghegan's mother continued living at No 5 until 2015.
In his 6 March 2019 affidavit, Mr Geoghegan gave the following evidence concerning the acquisition of No 42 and No 6: [No 42] 19. In approximately 1983, Richard told me, words to the following effect: "Mum and dad bought me a house at [No 42]." 20. At about the same time, George told me, words to the following effect: "Mum and dad bought Richard a house at [No 42]." … [No 6] 24. In 1988, Souad Sckaff ("Souad") told me words to the following effect: "We bought Richard a house and we bought George this one too. It is our Lebanese custom to buy your sons a house." 25. When Souad said "we bought this one too," she gestured by pointing to [No 6]. … 31. I have always assumed that [No 6] belonged to George because of conversations with George and his mother about the house. 32. Around that time, George told me words to the following effect: "Because Richard works at the Commonwealth Bank, we put [No 6] in his name. That way we can get a better interest rate."
At the end of his affidavit, Mr Geoghegan said: 58. Richard has told me words to the following effect: "[No 6] belongs to my little brother."

Credibility of Mr Geoghegan's evidence

Mr Geoghegan was also a reasonably careful and satisfactory witness. Although he gave evidence of statements made to him by Richard and Souad many decades ago, I am satisfied that the Court is justified in giving some weight to his recollection. The issue that Mr Geoghegan was called upon to remember was the substance of statements as to who was the owner of the house in which George lived, and did not involve nuances of meaning of those statements. While the weight that the Court may give to the evidence must be diminished by the passage of time, I am prepared to accept that Mr Geoghegan was relaying in his evidence a real recollection.
The credibility of Mr Geoghan's evidence is necessarily diminished by his recollection that both Souad and Richard told him that Fahad and Souad had bought Richard a house, as well as George. While there is no positive reason to disbelieve Mr Geoghan's evidence on this subject, which was broadly consistent with the evidence given by some other witnesses, it is inconsistent with the evidence on the subject given by Richard and Mary, and the Court has had to decide the issues in this case on the basis that there is no objective evidence to support a finding that Fahad and Souad paid for houses for George and Richard.

Evidence of Claude Cacitti

Mr Claude Cacitti was one of the teachers of George at his public school. He swore an affidavit that was filed on 5 March 2019.
Mr Cacitti's affidavit was prepared in somewhat unusual circumstances, in that in 2017 (according to Mr Cacitti), he saw a segment on the television program A Current Affair "about the feud between George and his brother Richard." This information triggered a recollection in Mr Cacitti about conversations that he could recall having with Souad. Mr Cacitti contacted George through a person associated with the A Current Affair program and offered to provide evidence.
Mr Cacitti said that Souad invited him, as George's teacher, to attend the Sckaff family home at No 12 during 1979 to discuss the Sckaff children with her. Mr Cacitti visited Souad on around six occasions that year. Mr Cacitti gave the following evidence: 19. We discussed our respective traditions and when discussing the Lebanese traditions, she said to me words to the following effect: "It is the parent's responsibility to look after kids and make sacrifices. If George doesn't get a good job, he will have a house and something to start a family with." 20. On several occasions, Mrs Sckaff mentioned that it was her intention to provide her sons with a house so that they would have a good start in life. I have always remembered her words on this matter, as I found it a very generous thing to do, which reflected the caring and supportive nature of George's parents as well as recognising the sacrifices that they endured to make such a gift possible. 21. The fact that she was trying to provide as much as she could for her children resonated with me because I came from an Italian background and I wasn't the brightest child in primary school. I am aware that in certain parts of Italy, parents have the same values. 22. She would often say words to the following effect: - "I want to make sure my kids are provided for in life. Adele would get money because her husband's family would provide her with a home. I will buy George and Richard each home [sic] so that they are prepared."
Mr Cacitti gave evidence that he was George's classroom teacher in grade six for two consecutive years as George repeated grade six.
His evidence was that he had visited Souad in her home in response to a request from her to discuss George's schooling and his future. Mr Cacitti said that he had a relatively detailed conversation with Souad, which included Souad making the statements related by Mr Cacitti in his affidavit.
Mr Cacitti said that he lost contact with George after a couple of years and had not spoken to George since that time. Mr Cacitti said that he became aware of the A Current Affair program that had ventilated the dispute between George and Richard over Richard's attempt to evict George and his family from No 6. Mr Cacitti said that he inferred from what he had heard on the television program that it was Richard's position that of the two sons in the Sckaff family, Richard had been given ownership of two houses and George had been given none. Mr Cacitti formed the view independently that Richard's claim was completely inconsistent with what he had been told by Souad. Mr Cacitti initiated his own enquiries through the television station and was given contact details for George that ultimately lead to Mr Cacitti being approached by George's solicitors to give evidence.

Credibility of Mr Cacitti's evidence

Mr Cacitti appeared to me to be an entirely independent and credible witness, who gave his evidence in a very sober and careful way. I am prepared to give weight to the evidence given by Mr Cacitti, even allowing for the inherent likelihood of dissipation of recollection over the decades.
Mr Cacitti maintained his evidence under cross-examination, and gave a persuasive explanation of how he could remember the substance of the conversations with Souad of which he had given evidence, even though he conceded that he could not clearly remember many of the other events that happened at that time.

Evidence of Damien Trad

Mr Damien Trad is a licensed finance broker who provided his services to Richard starting in about 2002. Mr Trad was called in the plaintiffs' case to give his evidence orally. It is not clear whether the plaintiffs issued a subpoena to require Mr Trad to attend court to give evidence, but I infer that he was not willing to provide affidavit evidence in the plaintiffs' case. In the circumstances, the appropriate way to convey the effect of his evidence will be to extract the more significant portions, as follows.
Mr Trad gave the following evidence in his evidence in chief at T 118.28-119.35: Q. Are you able to recall that dealing with Richard, at all? The details of it? A. Yes, I am. Q. To the best of your ability, could you recall the details of the dealing with Richard in respect of [No 6]? Let's start with the start, how that transaction started, or originated? A. Richard, as I said, approached me through his accountant, and in one of the meetings we had in my office, he indicated that he was interested in a property, some acreage. I can't recall the suburb. It's in my file. And he needed to raise some money as a deposit towards purchasing that property, that 50-acre property. That property being acreage, an ability to borrow money using it as security required a large deposit. So, Richard - I went through a loan application process and going through assets and liabilities, singled out [No 6] as a possible security property to use. In the - in the completion of the forms in listing assets and liabilities, if somebody has a rental property or an investment property that he wasn't living in, a normal question would be, so, what are you earning in rent for [No 6]? I remember that question being asked, because it's part of the application. Richard's response was the house is in my name, I'm not getting any rent for it. It's a property that is in my name but belongs to my brother, George. And I said, "How? Why is that? Why is it in your name and not George's name?" Richard told me that his parents chose to put it in Richard's name in trust for his brother, because at the time George was - his activities weren't such that the family supported which included gambling and befriending girls that they weren't happy with at the time. So Richard freely offered that to me, and - and I just listed the property as security. And I - and in the application. And he asked, "So can I use it as security?" And I said, "Well, if the property has your name on it, you can use it as security." We continued with the completing of the forms, and he seemed to be happy that he was given the green light to be able to use it as security to raise a deposit. And I recall him saying to me: "Before we complete the application, I'll need to go and speak with George, so - to make sure that he's happy with me using his property as security. And if he gives me the green light, then I will do something to - to reward him." And I think he said, "I might buy him a car or something in exchange for letting me use his house as security." That's what took place at that time, at the initial completion of the application. Q. Did you have any response to Richard at that time about that or-- A. Not really. I - I - I received the information through the ears of someone who understood the background, the culture of - the trust that a parent would have if one - one appeared trustworthy and the other one best not to put the asset in the name of a gambler. Q. What's your basis for saying that you received that information with the ears of someone who understood it? A. Well, it's something that I've lived through my life. My mother - Dad passed away early and Mum entrusted me with power of attorney, authority over her bank accounts. There's a background of somebody working in a bank, compared to my younger brothers who weren't as fortunate, the trust that a parent would have. They would, in their view, select someone that they trust for looking after younger brothers', siblings' assets. Q. What's your cultural background? A. Lebanese. Christian.
Later in his examination in chief, Mr Trad said at T 120.15-120.40 in relation to a proposal that No 6 be sold at auction: Q. Do you recall the content of those conversations at all? A. I recall the conversations with Richard. I remember him contacting me and wanting to speak to me. And the indications were that he really needed to clear the mortgage against [No 6], and indicated that if I could have any influence over George in George expecting whatever auction price received at that time, that George should sell or encourage him to sell. So Richard, knowing that I was then introduced to George some years later - because I didn't know George at the time when I first was engaged with Richard - came to me with the - with the view of maybe I could encourage George to sell, so he could clear the debt of [No 6]. The conversations I had with George at that time was such that he was hoping to get 1.2 million, and that there's not much else that he could relocate his family to live in, a property in that area or where he wanted to live if the price didn't get to 1.2. So my response to George was, "Well, don't sell, if you don't get what you need to relocate, because the market is depressed. And I don't know that this is a good time to put a property on the market to sell." Q. Does that exhaust your connection with the auction event, as it were, or the selling event? A. I - I don't think I had anything more to do, other than understanding the - that there was a need for the property to sell and - and the need seem - seemed to come from Richard, because he approached me with the - with the view of trying to encourage George to accept the offer at auction. And as far as George was concerned, "I have a price. I have a limit. I'm not going to sell unless I can actually be effective or do something with the - with that amount of money that I receive."
The following exchange took place during the cross-examination of Mr Trad at T 127.1-127.30: Q. Mr Trad, earlier you accepted from me the proposition that as a lender in a bank, if you had been told that the person who was a borrower did not beneficially own the property, that would be important information to know? A. For me personally, yes. Q. And once you became a broker, did you recognise that that would be important information for whoever was now going to be the lender to know? A. In my assessment at the time, I was comfortable that Richard was using the loan application for the specific purpose of purchasing an asset. Whilst I didn't know his brother George at the time, I was comforted with the fact that Richard said that he would speak to his brother George, seek George's permission to continue using the property, and in fact reward George for having done so. In my assessment of the application process, I'm safeguarding the lender by providing them a first mortgage security over an asset, and the applicant was looking to expand his asset holding, and in the event of a family dispute, there would be sufficient assets to satisfy whatever complaints were there. Q. And did you take any step to confirm that position with George? A. No, not at all. I did not know George. Q. Did you take any step to confirm with Richard that the proposed conversation occurred? A. No, I didn't. Q. And I'm going to suggest to you, sir, the reason that you didn't do that is because the point of time when you were informed that George had an interest in that property was in fact much later when you met George and befriended him. A. That wasn't the case.
Later in the cross examination, the following exchange occurred at T 132.19-132.44: Q. But since 20 February 2017, you and Richard haven't had a conversation, have you? A. Since? Q. 20 February 2017. A. I don't recall speaking to Richard for a long time. I attempting to speak with him, I think I went and visited him at his house when - when he was sick, going through some health issues, and then didn't think it would be appropriate to try and bring up the subject of mediating between him and his brother. That - that text would have related me playing a role to mediate between him and his brother rather than go through the court system. Q. It was at that time, when you sent that text, that George told you that it was his property and that Richard had, in George's view, offered him a car at the time of the Bargo loan. He told you that, did he? A. That - that is not the case. If you-- Q. When did George tell you that? A. When did George tell me that? Q. Yes. A. I don't have a date for that, but it may not have been George that told me that, because the notation I made on file listed Canterbury BMW at a time where I did not know George, and it would not have been George who mentioned that. It would have been Richard, because it was listed in the loan file.
Mr Trad thus gave evidence that Richard told him that even though No 6 was in Richard's name, it belonged to George, and that the brothers' parents chose to put the property in Richard's name in trust for George. Mr Trad said that Richard told him that he would need to get George's approval to the proposed mortgage being secured on No 6, and further, that Richard would reward George by buying him a car. This last matter was relevant to an unresolved evidentiary dispute as to whether Richard bought George a BMW motor vehicle. Mr Trad's evidence about Richard asking him to intercede with George to persuade George to sell No 6 in order to alleviate Richard's financial difficulties is also telling, as Richard would not have needed to seek Mr Trad's assistance if Richard believed at the time that he was the legal owner of No 6 and that there was no impediment to him selling the property.

Credibility of Mr Trad's evidence

As I have noted, Mr Trad gave his evidence orally in the witness box. Although it is probable that he was subpoenaed, he gave his evidence as if he had just walked in off the street. The effect was very impressive, as is sometimes the case when the Court enjoys the benefit of hearing a witness' evidence out of the witness' mouth without any opportunity for that evidence to be mediated by a party's lawyers. There was a distinct air of verisimilitude about Mr Trad's evidence and the way he appeared to recall his interactions with Richard and George. Mr Trad's evidence suggested that he had retained his file in which he had included documents and notes created at the times of his dealings with Richard. Mr Trad was not required to produce his file, so there was no evidence of its contents. The manner in which Mr Trad gave his evidence suggested that he had refreshed his memory by reference to the contents of his file.
Richard's counsel sought to cast doubt on Mr Trad's evidence by suggesting that it was in some way a breach of duty for him as a finance broker to submit an application for finance to a bank that partially relied upon security over property that was not beneficially owned by the proposed borrower. He also put to Mr Trad that, at some time after the relevant events, Mr Trad had come to learn George's version of the facts through conversations with George. This suggestion was denied by Mr Trad. Counsel relied upon the concession made by Mr Trad in cross-examination that he had met with George at their club for lunch and that he had loaned George money over the years to complete the renovations. Mr Trad's evidence, which I accept, was that he had not met George at the time of his dealings with Richard in relation to the purchase of the rural property at Bargo. Implicit in counsel's submission was that Mr Trad had either concocted his evidence in league with George, or, if not, George had casually made statements during his occasional meetings with Mr Trad that gave Mr Trad all of the information that would have been needed by Mr Trad to invent the evidence that he gave to the Court. That is particularly so for Mr Trad's evidence concerning Richard's statement that "I might buy him a car or something in exchange for letting me use his house as security" as a reward for agreeing to the mortgage being granted over No 6, and also the proposed auction of No 6. Counsel, quite properly, did not put this suggestion to Mr Trad in cross-examination. There is no basis for the Court to conclude that Mr Trad made up his evidence to support George's case. The subject matter of the evidence is such that it would have required a high level of dishonesty on Mr Trad's part to concoct the evidence that he gave. The whole manner in which Mr Trad gave his evidence was entirely inconsistent with the evidence being a recent invention or dreamed up in collusion with George.
I accept Mr Trad as a truthful, independent and reliable witness. While the demeanour of a witness in giving evidence is not always a valid indicator of the reliability of the evidence that is given, Mr Trad satisfied me that I should accept the evidence that he gave. Given the level of inconsistency between much of the evidence on significant issues, I consider that Mr Trad's evidence is very significant and something of a beacon in an otherwise obscure landscape.

General comment on the evidence given by the third-party witnesses

There is a difficulty that is commonly faced in general equity cases, where the outcome depends upon conversations and events that occurred in the distant past. This was explained by McLelland CJ in Eq in a different context in Watson v Foxman (1995) 49 NSWLR 315, where his Honour said at 318: … Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Given these considerations, it is necessary for the Court to carefully consider the weight that should be given to the evidence of the third-party witnesses called by the plaintiffs, given that it concerns relatively isolated statements said to have been made by Richard a considerable time ago.
The subject matter of the evidence is significant in my view, insofar as it concerns statements said to have been made by Richard concerning the beneficial ownership of No 6, or as to Souad's intentions in relation to the acquisition of property for her sons. Particularly in the case of Mr Trad's evidence, where the context made it clear that Richard's statement was made as to the true beneficial ownership of a property that was in his name, I consider that the subject matter is more likely to have been accurately remembered than many other subjects. The relative consistency of the evidence given by multiple witnesses in my view adds some collective weight to the evidence. It was also consistent with the evidence given by George and Anne, as well as the apparent objective basis on which George and Anne occupied No 6 for a number of decades.
Although my acceptance of the evidence must be guarded to some extent, my preparedness to accept it has been enhanced by my view of the credibility of the way the witnesses supported their evidence orally, particularly in the case of Mr Trad, who appeared to be as credible a witness as I have experienced.
Consequently, even allowing for the imperfection of memory as a result of the passing of time, I have found that the evidence given by the third-party witnesses should be given considerable weight, and provides substantial support for the plaintiffs' case.

Renovations of No 6

George and Anne carried out three renovations of No 6 in 2001, 2008 and 2013. George gave evidence that he would not have carried out those renovations if he had not believed that he was the owner of No 6. I accept that evidence. It is highly improbable that George and Anne would have spent the money that they did, and taken the trouble that the renovations involved, if they had understood that Richard was the real owner of No 6 and that they had no security of tenure to use No 6 as their family home. Moreover, the fact that they did carry out the renovations without seeking some form of long-term secure tenure tends to corroborate their evidence that they believed George was the real owner of the property.
I accept George's evidence that the 2001 renovation of No 6 included the following: (a) Replacement of the rotten floorboards under the carpets with new boards and tiles; (b) Replacement of the skirting boards throughout the house; (c) All the interior doors of the house were painted; (d) The rising-damp issues were fixed; (e) The house was painted on the inside.
George's evidence was that he paid for all of the renovations, and that the builder was paid $25,000 and the painter separately was paid $5,000.
George's evidence was that Richard knew that he and Anne were doing the renovations because he regularly visited Souad who was living three doors up at No 12 during the course of the renovation, and Richard visited No 6 shortly after George's first child was born in April 2001, by which time the renovations had been completed.
George gave evidence in his 18 July 2018 affidavit of the following conversation with Richard before the commencement of the second renovation in about mid-June 2008: 100. Prior to my wife and children moving into my mother's house, I spoke to Richard and said words to the following effect: "Anne, and I will be renovating our house. There is a lot of work to be done and I can't have Anne and the kids staying in the house while we are renovating it. Do you have a problem with Anne and the kids moving into Mum's house for a few months during the renovation? I will be sleeping in my bedroom and will be helping with the renovations". 101. Richard said words to the following effect: "No, I have no problem with that".
George said that the reason why he asked Richard for his approval was that Richard used a room in No 12 as his office for his newspaper delivery business and George wanted to make sure he would not be inconvenienced with George's family moving in.
The renovations commenced in about mid-June 2008 and took approximately seven months to complete and finished by the end of January 2009. For four of those months, Anne and the couple's two children stayed at No 12.
George said that he slept in the front bedroom of No 6 during the renovation and that he assisted the builder by driving him to various places to hire equipment and purchase materials. George did a lot of labouring type work including rubbish removal, working as a brickie's labourer, moving building material, and collecting building material from the hardware store.
The 2008 renovations included the following: (a) Stripping the house completely of all fixtures and fittings; (b) The flooring in the hall, lounge, kitchen and bathroom was removed; (c) The foundations were underpinned and secured, and the joists replaced; (d) A brand-new modern kitchen was installed, complete with new appliances; (e) A new bathroom was installed, complete with modern fixtures and fittings, including a new bath tub, vanity and toilet; (f) The electrical wiring in the house was completely rewired; (g) All the plumbing was redone with new copper pipes; (h) New gas lines were connected to the house; (i) All the skirting boards were replaced; (j) All light fittings were replaced with new fittings; (k). Windows were installed with new blinds; (l) The front of the house was completely redesigned; (m) The rear of the house was completely redesigned; (n) New front and back verandas and pathways were installed; (o) All doors were replaced and painted, as were all the walls inside and out; (p) Security gates at the front of the house were installed; (q) The gardens were really landscaped.
The work was paid for by George and Anne and cost about $200,000.
George's evidence was that Richard knew that No 6 was being renovated because, by that time, he was living close by in No 10 with his family. The fact that substantial renovations were being undertaken was obvious because skip bins were placed at the front of the house, as were building materials. The front of the house was redesigned as well as the front landscaping. George said that Richard visited and went into No 6 during the renovation.
No 6 was further renovated in mid-2013, because Anne's mother was becoming frail and her eyesight was failing. George and Anne converted the garage into a granny flat for Anne's mother to live in, so that she could feel independent but be close enough for Anne and George to look after her. The backyard veranda had to be modified so that Anne's mother could access the house from the granny flat.
George said that the modifications and renovations cost about $60,000.
George said that Richard was aware that the 2013 renovation was carried out for essentially the same reasons as for the 2008 renovations.
Anne gave evidence in her 18 July 2018 affidavit that confirmed George's evidence concerning the circumstances and cost of the three renovations.
Richard responded to George's and Anne's evidence concerning their renovations of No 6 in his 10 December 2018 affidavit.
Richard claimed that George asked him for his permission to fix the rising damp in the house in 2001. He said that he was not surprised by the visible evidence of the renovation being carried out because he had permitted the renovation to occur.
As to the 2008 renovation, Richard said in par 26 of his affidavit that George asked him for permission to do a renovation, and added: "But I do recall that the gist of his request was related to the kitchen and bathroom".
In paragraph 28, Richard stated his recollection of the works done as part of the 2008 renovation. He identified some of the works listed by George and Anne that he accepted were done, and other items of which he was unaware, and stated that, in his view, a number of the items were cosmetic only.
Richard acknowledged that he was aware of the visible evidence of the renovation being undertaken, but said that he had no concerns about that because he had given his permission for the renovation to occur.
Richard said in par 30 of his affidavit that he did not initially know about the conversion of the garage to a granny flat. Richard said that he became aware of work being done, and, at some point, he asked George about the garage and George said: "I am converting the garage to a granny flat". Richard says that he believes the granny flat conversation took place in 2008, not in 2013.
I am satisfied that Richard sought in his evidence to downplay the level of his contemporaneous understanding of the nature and extent of the renovations of No 6 carried out by George and Anne. Those matters should have been obvious to Richard. Although a subtle matter, I found Richard's evidence on this issue to be discrediting, as he was not prepared forthrightly to acknowledge the extensiveness of the renovations.

Mortgage of No 6 to purchase the Bargo property

Richard gave evidence in his 12 May 2017 affidavit prepared for the proceedings in the Tribunal that he simply granted a mortgage over No 6 to assist in the purchase of the Bargo property, as he was the registered proprietor of No 6. At par 46, Richard gave the evidence set out above at [59] of George asking him why Richard mortgaged his house and Richard responding that No 6 was not George's house.
George gave evidence in pars 72 to 82 of his 18 July 2018 affidavit concerning the circumstances in which the mortgage was granted over No 6 to secure part of the purchase price of the Bargo property. George said that, in late 2003, Richard told him that he was buying a 44 acre property at Bargo for $880,000, and that he needed to mortgage No 6 because No 42 already had a mortgage on it. George said that he agreed to a mortgage being granted over No 6, and that, in return, Richard paid $33,000 on his credit card to assist George in buying a BMW motor vehicle for $64,000. George gave the name of the BMW dealer and the salesman.
Richard responded in pars 20 to 22 of his 10 December 2017 affidavit, by denying that conversations occurred as asserted by George, and in particular, denying that he paid $33,000 to assist George in buying the BMW motor vehicle. Richard added that, at the time, he did not have a credit card with a limit of more than $15,000.
The Court is at least able to find on the basis of this evidence that, from George's perspective, he consented to Richard granting a mortgage over No 6 to assist with the purchase of the Bargo property. It is implicit in George's evidence that, even if the Court accepts the plaintiffs' case that they believed that No 6 belonged to George, they agreed to the mortgage remaining on the title to the property on the basis that Richard would pay off the debt that was secured by the mortgage over time in accordance with its terms.
I am not satisfied that the evidence is sufficient to support a finding on the balance of probabilities as to whether or not Richard assisted George in purchasing the BMW motor vehicle. I note that, in par 7 of her 11 December 2018 affidavit, Nada supported Richard's version of events, and said that she managed the business and family accounts and she could not remember seeing a credit card statement indicating payment for a BMW motor vehicle.
The evidence given by Mr Trad in chief that is set out above at [93] tends to support George's case, in that Richard said to Mr Trad that he would need to speak with George to make sure that George was happy with Richard using No 6 as security. Mr Trad also recalled that Richard said that he might buy George a car or something in exchange for letting Richard use his house as security.
These were unusual statements for Richard to have made to Mr Trad and it is highly improbable that an independent finance broker in Mr Trad's position would have invented this evidence, if it did not record statements that were in fact made by Richard to Mr Trad.
Nonetheless, it is not necessary to resolve the dispute concerning the purchase of the BMW motor vehicle.

Quantity Surveyor Evidence

The plaintiffs tendered the report of an expert quantity surveyor, Mr Robert Stewart, dated 15 October 2018. The plaintiffs also caused Mr Stewart to prepare an updated report dated 9 June 2023, but in the face of resistance by the defendants to the admission of that report because Mr Stewart had not included an adequate explanation of the basis for his updated conclusions, the plaintiffs withdrew the tender.
In his 2018 report, having regard to the evidence of what was involved in the three renovations of No 6 that were carried out by the plaintiffs in 2001, 2008 and 2013, Mr Stewart estimated the cost of those works at the rates a competent builder experienced in that type of work would have charged. Curiously, Mr Stewart estimated the costs of the work being done at current market building cost rates as at the date of his report. Consequently, the estimated costs were neither those current at the date of the hearing or at the dates when the renovations were carried out.
The estimations made by Mr Stewart were set out in pars 23 and 24 of his report, as follows: 23. The cost of rectification, based upon the three periods when work was carried out, is: Item No. REFERENCE 2018 Cost. ALTERATIONS AND RENOVATIONS. 1.0 2001 RENOVATIONS AND PAINTING $44,967.36. 2.0 2008 ALTERATIONS AND RENOVATIONS $379,721.17 3.0 2013 CONVERSION OF GARAGE $71,051.54 TOTAL AT 2008 RATES (excluding GST) $495,740.07 GST $49,574.01 TOTAL AT 2018 RATES (including GST) $545,314.08. 24. In My opinion the cost of the renovations carried out since 2001, priced at September 2018 rates is $545,314.08 including GST.
At par 51 of his report, Mr Stewart made two adjustments of the prices from 2018 costs to the year in which the work was carried out. The first involved a calculation of "Depreciated Cost", which involved the exercise of depreciating the costs by the depreciation rates recognised by the Australian Tax Office. Following objection by the defendants, the result of this exercise was not admitted into evidence.
The second adjustment carried out by Mr Stewart involved the de-escalation of the 2018 costs at rates that depended upon Mr Stewart's consideration of the data available to the quantity surveying firm by which he was employed. For September 2001 to September 2018, the rate of de-escalation was 79.2%. For December 2008 to September 2018, it was 29.9%. For June 2013 to September 2018, it was 23.1%.
At par 52 of his report, Mr Stewart accepted that the calculated de-escalation in building rates were not entirely accurate as they were averaged over the whole construction industry and were not necessarily accurate for work of the nature carried out on No 6.
On this basis, Mr Stewart assessed the cost of the 2001 renovation as of the date when it was done at $25,093.39. The cost of the 2008 renovation was $292,318.07. The cost of the 2013 renovation was $57,718.55. The total was $375,130.01. Adding GST of $37,513 gave a total of $412,643.01.
It is not clear why Mr Stewart would not have had access to information as to building costs that was current at the date of the three renovations, so that he could estimate the reasonable cost of the renovation works using contemporaneous rates. Mr Stewart did not do so, and it may be that, if one understood the science of quantity surveying, one would know that comprehensive data was not continuously created and kept indefinitely, so that retrospective estimates of reasonable building costs could be made on the basis of contemporaneous data.
As I have explained above, the plaintiffs, who did not have available contemporaneous cost records, estimated that the costs that they incurred were $25,000 for the 2001 renovation, $200,000 for the 2008 renovation and $60,000 for the 2013 renovation, giving a total cost of $285,000. This total may have been less than if all of the work had been done by an independent, competent builder. George gave evidence of providing substantial labour and assistance to the persons who carried out the renovations, and there is some evidence to support the conclusion that those persons may not have always charged market rates.
I consider that Mr Stewart's evidence provides substantial corroboration, in a general way, for the claims made by the plaintiffs as to the costs that they incurred in carrying out the renovations. Mr Stewart's estimates may tend to show in broad terms what the equivalent market cost of the renovations would have been.

George's purchase of two home units in Bankstown

George arranged to purchase two home units in Bankstown that I will call Bankstown No 1 and Bankstown No 2. Bankstown No 1 was purchased on 14 August 1998 in the names of Richard and George as to 90% and 10% respectively as tenants-in-common. The price was $163,500. Bankstown No 1 was sold in December 2005 for $235,000. Bankstown No 2 was purchased on 27 March 2001 for $206,500 by George and Richard as joint tenants and sold by them on 18 March 2005 for $255,000.
The evidence did not fully explain why George and Richard purchased the Bankstown units in this manner, but as I understand the evidence, Richard was made a registered proprietor because of his credit rating, so that mortgages could be obtained to assist in the purchases. The defendants accepted that George was the beneficial owner of both Bankstown units, he provided whatever funds were necessary to enable the purchases, and the rent for both units was paid to George or for his benefit.
These episodes in the relationship between George and Richard might have little direct significance to the determination of the present dispute, were it not for the unusual circumstance that the purchase of the two Bankstown units shows that, in fact, there were instances in the relationship between George and Richard in which Richard was made a registered proprietor of property that was accepted to be beneficially owned by George, without there being any documentary record of any particular agreement between the brothers whereby it was acknowledged that Richard held his interest in the properties on trust for George.

The brothers' involvement in horse racing

In his 12 May 2017 affidavit in the Tribunal proceedings, Richard gave some curious evidence about transactions in which he was involved that he said concerned substantial payments by George to bookmakers. Richard said: 43. Sometime in the early 1990s, a Commonwealth Bank account was opened on behalf of George whereby I was a signatory. The proceeds of sale of the Bankstown properties went into this account. 44. Between 2002 and 2005, from time to time, George asked me to write cheques drawn on that Commonwealth Bank account. He told me that he owed money to "bookmakers". I did as he asked. The money in the bank account comprised proceeds of the sale of the two home units. Annexure 12 to this affidavit are copies of the cheque butts made out to bookmakers to the extent I have been able to locate them.
George responded to this evidence in par 20 of his 4 March 2019 affidavit by saying: 20. In respect of paragraph 44 of Richard's 2017 Affidavit, I dispute the contents of that paragraph. I did not ask Richard to write cheques to bookmakers between 2002 and January 2005. I have now been able to ascertain the precise dates that the First Bankstown and the Second Bankstown unit was sold based on the transfers attached to Richard's 2017 Affidavit: - (a) I note in my July Affidavit, I had estimated in paragraphs 62 and 70 the year the units were sold. I have now ascertained that the first Bankstown unit was sold on 15 December 2005 and the second Bankstown unit was sold on 10 March 2005. (b) I note the dates of the cheque butts referred to in paragraph 44 of Richard's 2017 affidavit and attached as annexure 12 to that affidavit are dated between November 2002 and January 2005. It is therefore incorrect to say that the proceeds of sale of the Bankstown units were used to draw these cheques. (c) Having examined the names on the cheque butts referred to in annexure 12 of Richard's 2017 affidavit, I have identified three cheque butts as being mine and they are: - [Name redacted] in the sum of $1,500 - this is Anne's mother; [Name redacted] in the sum of $3,000 - this is a friend of mine; A cheque drawn to Magic Millions on 31 May 2004 in the sum of $60,709 - this was for the purchase of two racehorses. (d) In addition, Richard and I owned many racehorses together. Richard also had betting accounts with bookmakers.
Richard responded to George's 4 March 2019 affidavit in his 13 December 2019 affidavit. Richard said nothing about George's evidence in par 20 of his affidavit.
It is instructive to examine the cheque butts that were included in Annexure 12 to Richard's 12 May 2017 affidavit. Unfortunately, not all of the photocopies of the cheque butts are complete and legible. 15/11/02 [Name redacted] $15,000 ? 2002 [Name redacted] $33,000? 31/5/04 Magic Millions Horse Purchase $60,709 31/5/04 [Name redacted] $96,000 ? Con? Bookie $20,000 [cancelled?] 18/1/05 [Name redacted] $42,000 20/10/04 [Name redacted]Bookie $18,500 26/10/04 ? $1,500 26/10/04 Mario? $10,000 9/11/04 Con? $16,000. 18/1/05 [Name redacted] $3,000 ?/05 [Name redacted] $48,500
In fact, one Bankstown unit was sold on 22 March 2005 (CB 2/580) and the other Bankstown unit was sold on 6 January 2006 (CB 2/577). Consequently, all of the payments made by the cheques whose butts are included in Annexure 12 were made before the first Bankstown unit was sold. Omitting the cheque for $20,000 that appears to have been cancelled, the total payments made appear to have been as high as $344,209.
This evidence is pregnant with lost meaning. On its face, the evidence petered out because it was introduced by Richard, George made an incomplete response, and then Richard entirely ignored that response. Nonetheless, the evidence was admitted on the application of the defendants, and no objection was made by the plaintiffs.
The Court cannot ignore apparently material evidence, even if the parties choose to do so. George did not contradict Richard's evidence that the cheque account was in George's name, but was operated by Richard. As all of the cheques were written before the first of the Bankstown properties were sold, the source of the funds in the account is unknown. This evidence requires the Court to conclude that one or both of the brothers was in receipt of funds that were out of all proportion to the money that the balance of the evidence suggests was available to the brothers. The Court must infer that, if the money the subject of the cheques was paid out of the account, corresponding amounts must have been paid in. Possibly, successful betting on horse races was the source of the money. The Court does not know.
In these circumstances, and taking Richard's evidence at face value, the only significance that the Court can attribute to this evidence is that, between 2002 and 2005, Richard was aware that George had access to relatively substantial funds. Yet he apparently did not ask George to pay him anything for the benefit of occupying No 6. This provides some confirmation that, during this period, Richard accepted that George's right of occupation of No 6 did not give rise to any right in Richard to expect payment from George.

Attempt to auction No 6

George gave evidence in pars 126E to 126U of his 9 June 2023 affidavit of the circumstances in which an attempt was made to auction No 6, and said that, in around 2010 and in March 2012, the Sheriff had served notices of eviction in respect of No 6, because of difficulties that Richard was experiencing in paying the mortgage over No 6 that had been granted to assist in the purchase of the Bargo property. There was a dispute between the parties as to whether Nada's conduct had exacerbated Richard's financial difficulties, but it is neither possible nor necessary to examine that alleged conduct or to resolve the dispute.
George claimed that he made an agreement with Richard that No 6 would be sold and the proceeds used to pay out Richard's mortgage over No 6, in return for which Richard would give George Richard's share in No 12, which would be part of Souad's estate.
George's evidence was that he retained an agent and listed the property, and that the house went to auction on about 17 November 2012, and was passed in at $940,000. Richard was not present at the auction.
Richard responded to this evidence in his 16 June 2023 affidavit. He said that he told George following the incident involving the Sheriff: "George, it's not your house. I will deal with this, it's not your problem". Richard also denied that he made the agreement that George claimed was made about how the proceeds of sale of No 6 would be applied. Richard repeated the evidence that he gave in par 31 of his 10 December 2018 affidavit, to the effect that he decided to sell No 6 because his financial position had deteriorated as a result of having lost his position managing the warehouse of Fairfax Media. He said that he told George that he was thinking of selling No 6 to pay off his debts. Richard said that he signed a sale contract and an agency agreement; "however, because the agent was a friend of George's, George dealt with the agent". Richard also said that he responded to George saying that he would retain the balance of the sale price of No 6 after Richard had paid off his debts by saying: "No way, why would I pay you the balance of the sale?" Richard commented that the property was passed in at auction and was not sold. He implicitly accepted that he did not attend the auction.
Richard accepted in cross-examination at T 244.42 that he did not attend the auction for No 6. He also accepted that George dealt with the agent for the sale, who Richard said was one of George's many friends. Richard said that George wanted to get the highest price he could, but that he and George had a falling out on the day of the auction.
The Court is not in a position to resolve the differences between George and Richard as to their conversations relating to the attempt to sell No 6 at auction. However, I accept that there is considerable force in the plaintiffs' submission that, if Richard genuinely believed that he was the beneficial owner of No 6, his conduct in not dealing personally with the agent and not attending the auction in order to be able to give instructions as to whether the highest bid should be accepted is extraordinary. Richard did not claim that he had given any instructions to George or the agent as to how the auction should be conducted. The value of No 6 was apparently in the order of $1,000,000 at the time. It is difficult to accept how Richard could have been so blasé as to leave the conduct of the auction to George if he believed that he was the true owner of No 6.

Capacity of Richard to fund the purchase of No 6

Apparently for the purpose of removing any doubt that Richard had the financial capacity to fund the purchase of No 6 from his own resources, in the relatively short time between the purchase of the property and the discharge of the mortgage, Richard made a forensic attempt to demonstrate that capacity reasonably precisely on the basis of evidence concerning his income, outgoings and saving practices.
George sought to test that evidence by obtaining expert accounting evidence that assumed the accuracy of the financial evidence given by Richard, and then answered a number of questions directed at establishing whether or not Richard would have had the funds to make the necessary payments from his own unaided resources. As I understand George's case, he did not accept the accuracy of the financial information provided by Richard. To do so would have been inconsistent with George's case that No 6 was purchased with funds provided by Fahad and Souad. Rather, George's expert witness was instructed to assume the accuracy of the financial information provided by Richard for the purpose of formulating opinions as to whether that information was consistent with Richard being able to make the necessary payments at the times they were required to be made. The logic of this approach was that, if the expert witness demonstrated that the financial resources asserted by Richard were insufficient to fund the necessary payments, that would undermine Richard's case that he did make the payments. If the conclusion was that Richard could have made the necessary payments on the assumptions given, that conclusion would not necessarily support Richard's case, as that would only follow if the Court accepted the accuracy of the financial information provided by Richard. Richard retained an expert accountant to respond to the evidence given by George's expert.
George's expert accountant witness was Mr Mariano Rossetto, who provided reports dated 21 July 2021, 25 February 2022 and 18 October 2022. Richard's expert accountant witness, Ms Fiona Bateman, provided reports dated 14 October 2021 and 31 August 2022. Both expert witnesses responded to assumptions derived from Richard's affidavits and two separate assumptions given to them to attempt to reconstruct the cash available to Richard from when he started work in 1975 to 1994, which was the year in which the mortgage over No 6 was discharged. The expert witnesses attempted to calculate the surplus available to Richard at the end of each financial year that could have been accumulated in order to fund the various payments that he claimed to have made in respect of the purchase of properties in his name.
The experts were instructed to respond to questions that concerned Richard's financial capacity to fund particular, relevant property transactions. In their respective reports, they commented upon the process of reasoning adopted by the other expert.
I propose to summarise the effect of the expert accounting evidence by identifying the relevant transactions, explaining the significance of the transactions, and by stating the opinions given by each expert. The transactions were as follows: 1. First transaction. Was Richard able to fund his half share of the initial payment of the price of the acquisition of No 42 by Richard and Mary on 13 April 1983? Richard was required to pay $15,000. Both experts opined that Richard was in a position to make that payment. 2. Second transaction. The mortgage of $65,000 given by Richard and Mary to pay the balance of the price of No 42 was discharged by 17 June 1986. The experts assumed that Richard's half share of $32,500 was paid in three equal instalments of $10,833 in the financial years 1984 to 1986. Mr Rossetto opined that Richard was not able to make all of these payments while Ms Bateman said that he could. 3. Third transaction. Richard's evidence was that he paid out Mary's interest in No 42 on 6 October 1987, by paying her $30,000. Mr Rosetta gave the opinion that Richard did not have the resources to make this payment while Ms Bateman said that he did. Mr Rosetta said that Richard would have been $4,215 short. 4. Fourth transaction. Did Richard have the capacity to pay $50,000 (including a deposit of $11,000) as part payment of the price of No 6 on 5 February 1988? Mr Rossetto added transaction costs of $5,000 and Ms Bateman only added stamp duty and mortgage duty of $2,472. Mr Rossetto opined that Richard would not have had the funds to make these payments, but Ms Bateman concluded that he would. 5. Fifth transaction. Richard gave evidence that, in addition to fortnightly repayments of principal under the mortgage over No 6 out of his pay, he made additional payments that enabled him to obtain a discharge of the mortgage on No 6 by 6 August 1994 in the financial years as follows (noting that there is a small difference between the figures used by Mr Rossetto and Ms Bateman for the 1988 year): 1988 $2,350 1989 $7,050 1990 $14,000 1991 $10,000 1992 $5,000 1993 $2,000 1994 $10,000 Total $50,400 1. Mr Rossetto expressed the opinion that Richard did not have the financial resources to make all of these payments and that he would have been short by $6,578, in addition to not being able to pay the sum of $9,850. This last amount is the difference between the $110,000 price of No 6 and the sum of the initial payment of $50,000 and the total alleged additional payments of $50,400 (the arithmetic is not precise because Mr Rossetto calculated the total of the additional payments at $50,150). Ms Bateman's opinion was that Richard would have been able to make all of the payments.
Note as to the third transaction, Richard's evidence was that Mary only asked him to pay her $30,000, although the consideration stated in the transfer was $57,000 calculated by reference to the market value of No 42. Mary was not asked to give evidence to confirm that the amount that she received was only $30,000. As the purchase price of No 42 on 13 April 1983 was $95,000, it is probable that the market value of the property had increased by 6 October 1987.
As Ms Bateman explained at par 83 of her first report, she had concluded that Richard had the financial capacity to fund all five transactions because of the different conclusions she reached from Mr Rossetto concerning the income and expenditure of Richard over the subject period. The differences between the experts and the outcome of their exchanges in their respective reports were as follows: 1. Ms Bateman allowed additional income of $12,421 on the basis of an assumption made by her that Richard's income from working for a newsagency when he was living at home with his parents was paid without tax being deducted, and that the income should not be calculated on the basis that Richard was separately assessed for the taxation payable on that income. This was a significant difference, as the income was earned over a 10 year period before the acquisition of No 6. Mr Rossetto's response was that, in the absence of proof that Richard did not pay tax on his income, the proper course was to assume that he did. In fact, Richard did not give evidence that this part of his income was received net of tax that had already been paid. Mr Rossetto rightly pointed out that Ms Bateman had been instructed by Richard's solicitor in his letter of instructions that no tax had been deducted from this aspect of Richard's income. 2. Ms Bateman allowed additional income of $20,000, on the basis that she had been instructed by Richard's solicitor that it was Richard's position that he had earned $200 per week from his employment by a newsagency rather than the $120 per week that Mr Rossetto had been asked to assume. The instruction given by Richard's solicitor to Ms Bateman in fact added: "You may test the outcome on our client's record, you may need to consider this level of income but also somewhat more and somewhat less". This appeared to be an invitation to Ms Bateman to stress test her conclusions to take account of the fact that Richard had not actually given evidence of what his weekly income was from this source over the relevant period. 3. Ms Bateman allowed additional income of $13,498, on the assumption that Richard banked his surplus income and earned interest at 8% per annum. Mr Rossetto's response to this allowance was that its justification depended upon evidence that Richard had in fact invested his surplus at interest, and Richard had not given evidence to establish that fact. 4. Ms Bateman noticed that Mr Rossetto appeared to have misunderstood his instructions and had not allowed for Richard to earn income from his newsagency employment for the full year in 1981. Ms Bateman added income of $6,000. Mr Rossetto conceded this error in principle, but expressed the opinion that the additional income allowed should be $5,010 before tax. 5. Ms Bateman deducted the $5,000 that was assumed to have been paid by Richard off the mortgage over No 6 in 1992, on the basis that the relevant deposit slip bore the words "wedding gift". Although Richard gave no evidence on the subject, Ms Bateman concluded that the $5,000 represented a gift and should not be treated as a payment out of Richard's income. Mr Rossetto was not prepared to exclude the $5,000 as an expenditure of Richard's income, without having the benefit of evidence that the money was in fact a gift. Mr Rossetto said that, in any event, even if the money was a gift, it would be necessary to take into account the cost of the wedding, if paid for by Richard, as well as the honeymoon. There was no evidence available on these subjects. 6. Ms Bateman added back an amount of $12,528 that Mr Rossetto had deducted from Richard's calculated surplus income as the total of amounts of depreciation that Richard was entitled to claim. Ms Bateman pointed out that, although depreciation was deductible, it was not a cash expenditure. Mr Rossetto accepted this point in principle, but countered by the observation that the depreciation was for business purposes, which Mr Rossetto took to be Richard's newspaper delivery business. Accordingly, as the depreciation would be against the price of the purchase of a capital asset used in the business, it would be necessary to account for the capital cost in the calculation of Richard's available cash surpluses. This could not be done, as Richard had not given any evidence concerning his expenditures in operating his business. 7. There were certain other differences between the two experts, but they need not be considered, either because it was accepted that the differences were immaterial, or, on Ms Bateman's part, her calculation of the additional income that ought to be allowed was of a sufficient magnitude that it established that Richard was financially able to fund all of the transactions without it being necessary to resolve the further differences.
At some time before Mr Rossetto provided his second report, he was advised that, in the period before the mortgage over No 6 was discharged, Richard acquired two further properties in Queensland. The first was acquired on 25 April 1991 at a cost of $124,000, with a deposit of $19,000. The amount of the mortgage was apparently $105,000. The second property was acquired on 17 December 1992. The price was $130,000, but, according to Ms Bateman's second report at par 30, the amount of the mortgage was $142,000, a surplus of $12,000. The evidence available to the Court does not explain how Richard was able to borrow more than 100% of the purchase price of the second property.
Given the nature of the issues that were the subject of expert evidence in this case, it was in my view obvious from a comparison of the experts' reports that this was an instance that called for an expert conclave and a joint report directed at resolving and refining the differences between the experts, as a precursor to the provision of additional evidence to enable the experts to resolve the effect of the uncertainties that they had detected. No conclave had been arranged by the parties and no evidence had been obtained that was specifically directed at facilitating the experts reaching a joint opinion, if that was possible. At my instigation, the experts engaged in an informal conclave before they were called to give evidence, the result of which is set out in the oral evidence of the experts at T 271.30-274.4. It might not be surprising in the circumstances, but it is a fair summary of the result of the conclave that the experts agreed that the resolution of their differences depended upon findings by the Court as to the underlying facts in respect of the issues, where there was no evidence or the experts had been required to act upon bare assumptions given to them - including as to whether tax had been deducted or paid, whether surpluses had been invested at interest, as to what Richard's actual living costs were, as to whether Richard received a wedding gift and, if so, whether he incurred any expenses, and whether it was necessary to allow for capital expenditures incurred by Richard for the purposes of his business.
As the result of the informal expert conclave was given to the Court towards the end of the fourth day of the hearing, after Richard's evidence had concluded, there was no evidentiary basis for the Court to make satisfactory findings of fact that would improve the position that was reached by the experts.
All parties in their submissions accepted that the result of all of this expert accounting evidence was inconclusive on the issue of whether Richard had the financial capacity to make all of the payments for the acquisition of all of properties from his own resources.
There is, however, an aspect of the conclusions reached by the expert accounting witnesses that I consider to be significant. That aspect involves a comparison between the total income of Richard (plus that of Nada after their marriage in 1991), total living expenses, the property payments that Richard claimed he made, the balances at end of financial year and, importantly, the proportion of Richard's income that represented savings. I have adopted Schedule 1 in Ms Bateman's second report, as that report has made appropriate adjustments, and is the most favourable statement of position from Richard's perspective. I have ignored Ms Bateman's adding back of small amounts of depreciation in the years 1991 to 1994, as that is immaterial even though it introduces minor arithmetical error. Financial Year Net Income Living Expenses Property payments Annual Balance Percentage saved 1975 1,560 312 1,248 80.00 1976 1,560 312 2,596 80.00 1977 4,888 936 6,548 80.85 1978 5,204 936 10,815 82.01 1979 5,545 936 15,425 83.12 1980 5,914 936 20,402 84.17 1981 9,810 2,280 27,932 76.76 1982 23,998 8,320 43,610 65.33 1983 25,403 8,320 15,000 45,693 67.25 1984 25,173 8,320 10,833 51,714 66.95 1985 26,353 8,320 10,833 58,913 68.43 1986 27,573 8,320 10,833 67,333 69.83 1987 20,348 8,320 79,361 59.12 1988 22,055 9,920 84,597 6,900 55.02 1989 18,734 10,400 7,050 8,183 44.49 1990 17,899 10,400 14,000 2,739 41.90 1991 38,174 6,900 29,000 8,399 81.92 1992 29,549 13,000 27,982 56.00 1993 2,226 15,600 (10,000) 27,014 (600.80) 1994 20,207 15,600 10,000 24,267 22.80

Consideration of the entries in the final column of this table demonstrates the extraordinary proportion of Richard's earnings that he would have been required to save to make the payments that he claimed solely to have made to have enabled him to purchase No 6 from his own funds, and fund the other purchases that he made.
In par 14 of her first report, Ms Bateman said that Richard's accumulated savings would have attracted interest rates of between 8% and 14% over the years of accumulation, as some of the highest interest rates ever recorded in Australia were in the 1980s. Ms Bateman therefore determined the amount of income that Richard may have earned from his savings in the bank by allowing what she said was a conservative rate of interest of 8% per annum over the period 1975 to 1988. Ms Bateman observed, in par 16, that the interest rate payable on Richard's savings in 1991 should be taken to be 9.45% per annum, upon the basis of what she described as Supporting Document D Australia - Deposit Interest Rate. Ms Bateman also included in her report, as Supporting Document F1, a document titled "Historical Home Loan Interest Rates for Australia". In relation to home loan variable rates, the documents stated that rates exceeded 10% for the first time in 1974 and pretty much remained above 10% until 1993. The graph in the document shows that interest rates were about 13% in 1988, and that they had fallen to about 8% in 1994, having risen to about 17% in 1990. In comparing variable interest rates to fixed rates, Ms Bateman's document contained a statement that borrowers would have been worse off if they selected a three year fixed rate loan at any time until about November 2001.
I have referred to this data because it appears that neither Mr Rossetto nor Ms Bateman were instructed to assume that Richard was required to pay interest on his CBA staff home loan. Both expert witnesses appear to have dealt with the interest payable by Richard on his Westpac loan borrowed to acquire No 42 by treating it together with the rental income earned as part of the negative gearing in the determination of Richard's annual net income. As Richard received no rent for No 6, the interest that he must have paid on the CBA staff housing loan cannot be treated in the same way. It is an expense that would have been added to Richard's loan account.
Given that Ms Bateman determined that 8% per annum was an appropriate interest rate to assume Richard earned on his deposited savings, it may be assumed, for the sake of argument, that Richard would have paid a higher rate of interest on his borrowing from the CBA. Even if staff received a concessional rate of interest, it would be reasonable to assume Richard would have been charged 10% per annum conservatively over this period.
It is not possible for the Court to determine with any accuracy the interest that would have been payable by Richard on his CBA staff home loan in relation to No 6. However, it is not valid to ignore the fact that interest would have been payable.
The following table sets out the result of a calculation that I have undertaken to compare the exercises carried out by the parties' experts if, unlike their calculations, it was assumed that Richard's outstanding mortgage debt on No 6 accumulated interest at the rate of 10% per annum. The starting point is a debt of $60,000 in 1988. In each year I have calculated interest at 10% per annum to give the total at the end of the year. This approach is imprecise because it does not allow for the effect of interest accruing and payments being made throughout the year. The column "Payment SHL" allows for the fortnightly deductions that are assumed to have been made from Richard's salary. From the balance, the amount of the additional payments during the year have been deducted to give the amount of the debt in the next year. The process has then been repeated for that year. It should be noted that the interest assessed for the 1988 financial year is $2,500, because it accrued over the 5 months after the purchase of No 6 in February 1988. Financial Year Debt Interest at 10% Total Payment SHL Balance Payment 1988 60,000 2,500 62,500 1,700 60,800 2,100 1989 58,700 5,870 64,570 1,700 62,870 7,050 1990 55,820 5,582 61,402 1,700 59,702 14,000 1991 45,702 4,570 50,272 1,700 48,572 10,000 1992 38,572 3,857 42,429 1,700 40,729 5,000 1993 35,729 3,573 39,302 1,700 37,602 2,000 1994 35,602 3,560 39,162 1,700 37,462 10,000 Final 27,462

The result of this exercise has been to demonstrate that, if allowance is made for the assumption that the mortgage debt on No 6 accrued interest at the rate of 10% per annum, even if Richard's income is assumed to have been sufficient to make all the regular and one-off payments that he claimed to have made, there would have remained an unpaid amount of about $27,500 at the date the mortgage was repaid. That amount cannot, of course, be any more than an approximation based upon the effect of the evidence and the assumptions that are made.
Richard embarked upon the course of attempting, based upon his own assertions concerning his income and expenses and saving practices, to demonstrate that he was able to fund the purchase of No 6 at the price of $110,000 in the short period of about six years. That course led the parties to obtain and tender the expert evidence that I have considered above. The expert witnesses were split as to whether Richard could have made all of the relevant payments from his own resources. The parties - apparently somewhat exhausted by the process - agreed that this forensic exercise was inconclusive.
But there was an obvious and unexplained omission on the part of the experts to allow for interest accruing on the mortgage over No 6, even though Ms Bateman provided evidence of the prevailing interest rates, and expressed the opinion that it was necessary to allow for Richard to earn interest on his accumulated savings from time to time. Unfortunately, the Court was not able to seek the response of the expert witnesses to the suggestion that they have omitted to allow for interest incurred on the mortgage debt. As I have explained above, the parties omitted to instruct the experts to engage in a conclave and submit a joint report that could have been considered by the Court before they were called to give their evidence. In effect, they presented the results of a conclave orally in the witness box towards the end of the hearing. The result has been that it has only occurred to the Court after the conclusion of the hearing that the mortgage debt would have attracted interest until it was repaid. I have found nothing in the experts' reports that suggests that they allowed for the accrual of interest. The experts were asked to assume that, over the 6.5 year life of the mortgage, Richard made additional payments of $50,400: see [51]-[52] above. In addition, Richard provided evidence that he paid fortnightly amounts against the mortgage out of his salary: see [50] above. The amount was $65.56 for the fortnight ended 27 May 1993, which was near the end of the life of the mortgage. If the fortnightly repayment was proportional to income, that amount would be towards the larger end of the fortnightly repayments over the period. Fortnightly repayments of that amount would total about $1,700 per year, or $11,050 over the life of the mortgage. The total amount of the repayments on the $60,000 mortgage over its 6.5 year life would be $61,450, on these assumptions.
I bear in mind that there was no actual evidence concerning the rate of interest earned on Richard's assumed savings or on the $60,000 mortgage. Ms Bateman assumed the interest rate of 8% per annum on savings. I have assumed that the rate payable on borrowings would exceed the rate earned on deposits, and adopted 10% per annum for the sake of the argument.
In the result, the conclusions have not been supported by actual evidence, and they have not been tested by cross-examination of Richard, and do not have the benefit of the responses of the expert witnesses.
In the circumstances, I have not acted upon my own conclusion that Richard's attempt to prove objectively that he was able to repay the $60,000 mortgage on No 6 over 6.5 years from his own resources failed because of the absence of objective proof that he was able to bear the interest that must have accrued on the mortgage debt. Nonetheless, I have concluded that it would be wrong in principle to ignore the inescapable reality that Richard must have been charged interest on the mortgage debt. It is a matter that justifies a significant increase in judicial scepticism that Richard was able to repay the mortgage debt from his own resources.
The result is, if the Court accepts the most favourable set of calculations from the expert evidence for Richard, and then assumes that he would have been required to pay interest on the mortgage debt at a slightly higher rate than he was paid on his own savings, the Court is driven to conclude that Richard would have been unable to fund the purchase of No 6 from his own resources by a substantial margin.
The conclusion that I have reached on the evidence is that it is more probable than not that Richard did not have the personal financial resources to repay the whole of the $60,000 mortgage on No 6 over a period of 6.5 years from his own resources. That conclusion depends upon the acceptance of Richard's own evidence as to the only sources of his income over the period. It acknowledges that the evidence of the expert witnesses was ultimately accepted by the parties as being inconclusive. Nonetheless, the Court is required to consider the significance of the evidence, such as it is. Richard did not give direct evidence that, over the period from 1976 to 1994, he was able to save proportions of his annual income ranging from about 85% to 40%. Those proportions must be derived from the conclusions reached by the experts, which were in turn derived from the assertions made by Richard as to his income, and as to how he was able from his own resources to acquire the properties that he acquired over the period: see [167] above. Richard's capacity to save over the whole period was relevant, not just the 6.5 year life of the mortgage over No 6, because his capacity to make payments from his own resources for the later period depended upon his capacity to save from the beginning of his employment. In the absence of more direct and persuasive evidence, I am not prepared to accept that Richard was able to save the proportion of his income for the whole of the period from 1975 to 1994 that would have been necessary to enable him to make the initial payment for the purchase of No 6, and to repay the mortgage over No 6, from his own resources. I consider that the proportions of Richard's income that is claimed to have been saved is exceptionally high, given Richard's relatively modest income.
That conclusion does not, of course, assist the Court in making a finding about the source of funds that would have been necessary to make up any shortfall in funds that was actually required to pay for No 6 over the period 1988 to 1994. In reality, the evidence ultimately leaves the Court in the position where it does not accept that Richard has proved that he paid the entire price for No 6 from his own resources, and the Court considers on the evidence that it is more likely than not that he would not have been able to repay the whole of the price from his own resources. While the evidence does establish that Richard was the purchaser and mortgagor for No 6, and all repayments were apparently made through accounts in Richard's name, the source of the funds necessary to purchase the property remains unproved. That leaves open the possibility that Richard received funds from his parents to pay for No 6, in whole or in part, without providing any positive proof that he did so.

Payments made by Richard

As I have explained above, the evidence establishes that the $60,000 principal of the mortgage taken out to purchase No 6 was paid through Richard's accounts. The evidence does not establish in a positive way how the initial payment of $50,000 was made. The evidence also does not prove in a positive way what the source of all of the funds necessary to make all payments was, and I have already explained my scepticism about the evidence in relation to the payment of interest on the mortgage debt.
Richard's evidence was that all of the payments were made from his own resources, but I do not have sufficient confidence in the reliability of the evidence given by Richard simply to accept his evidence as fact.
While it is open, on the evidence, for the Court to accept that Richard made all, or a substantial part, of the payments from his own resources, he has not provided any explanation, let alone a persuasive explanation, of how his conduct in permitting George to occupy No 6 in the belief that it belonged to him over some 25 years is consistent with Richard having paid the entire price for the purchase of No 6 from his own resources.
As noted above, there was a dispute between the parties as to whether George, and then George and Anne, reimbursed Richard in cash for the costs that he incurred in paying for the insurance for No 6, given the plaintiffs' acceptance that Richard initially incurred the insurance costs, because he insured a number of properties under the one policy. Annexure 9 to Richard's 12 May 2017 affidavit was an insurance policy schedule for No 6 issued by the National Australia Bank, as "Intermediary" for a total premium of $2,100.84. The policy schedule was for the period 28 February 2017 to 28 February 2018. This was for a period after Richard had asserted his ownership and entitlement to possession of No 6.
There was no objective evidence on this issue at all. Again, the Court is in a quandary as to what finding can be made. Both George and Richard were partisan witnesses. So, in a sense, was Anne, given that she was defending George's right to No 6. Notwithstanding that consideration, of the three witnesses, Anne's evidence is the evidence that I would prefer. I consider, without great confidence, that it is more likely than not that the plaintiffs did reimburse Richard for the cost of insuring No 6. That conclusion is at least consistent with Richard's evidence that he required George to meet other outgoings of No 6 from no later than 1994.
In par 27 of his 12 May 2007 affidavit, Richard said that he could only find Land Tax Notices of Assessment for the years 2008, 2009, and 2011 to 2017. He annexed these Notices as Annexure 10. The date of issue of the first Notice was 17 November 2008. It appears from the Notice that Richard had not lodged land tax returns for the period 2004 to 2008, as amounts were assessed for each of those years together with interest on late lodgement in each case, and there was a partial remission of the interest for late lodgement. The total amount payable was $21,202.85.
Richard did not provide any explanation for the late lodgement, and there is no objective evidence as to whether he paid land tax for any period before the 2004 tax year. It appears from the notice that, of the four properties in which Richard had a legal interest, being the properties that I have called No 6, No 42, No 10 and the Bargo property for the 2005 tax year, No 42 was exempt, as it was Richard's residence, and the Bargo property was an exempt rural property. For the 2004 and 2005 tax years, Richard was assessed for land tax on 50% of the taxable value of each of the Bankstown units that had been purchased for George. Richard was assessed for land tax for the 2006 to 2008 tax years on No 10, apparently on the basis that he was living in No 42, so that that was the only one of the two properties that was exempt for the tax years between 2009 and 2017, Richard was only assessed for land tax on No 6. According to my calculation (where necessary by determining the proportion of the land tax payable for No 6 by using the taxable value of that property as a proportion of the taxable whole), the total amount of primary land tax that Richard was assessed for No 6 was $42,235.
Richard tendered the land tax assessment notices without the support of any submissions concerning their significance. The plaintiffs did not respond to the issue in their evidence. Apart from noting that Richard apparently paid land tax in respect of No 6 of which he was the registered proprietor, the Court cannot safely rely upon this evidence to draw any conclusions about the parties' beliefs concerning the beneficial ownership of No 6. The parties did not consider the significance of legal and beneficial ownership of property under the relevant legislation to the primary liability to pay land tax.

Credibility of the evidence given by George, Richard and Mary

As the Court has now considered the evidence relevant to the further issues dealt with above, I will return to the issue of the credibility of the evidence given by George, Richard and Mary.

Credibility of George's evidence

Subject to a number of significant qualifications, I found that George's approach to the questions that were put to him in cross-examination was satisfactory. He generally considered his position briefly before making a responsive answer that generally conformed with the logical requirements of the question. He appeared to give candid answers without apparent regard to how his answers might fit into the scheme of the case and whether or not they were detrimental to his position. Mostly, George was prepared to say that he did not know the answer to a question, if he could not respond on the basis of observation and recollection. However, as his cross-examination progressed, George appeared to become defensive when he was asked to admit a proposition that was inconsistent with his recollection of the facts, particularly in relation to events that occurred before the acquisition of No 6, and the manner in which the purchase price of No 6 was paid. George often responded to questions that involved a suggestion that Richard had made statements to him or had done some act where George did not agree by saying: "that's a lie!". George appeared to get frustrated and frequently gave such replies before he had given counsel time to finish his questions. George apologised when counselled by the Court, but on a number of occasions reverted to giving premature responses. Counsel's formulation of his questions was perfectly proper, but it appeared that counsel occasionally asked questions using language that George did not quite understand. There was nothing wrong with those questions, but instead of George asking for the questions to be reformulated, George bluntly repeated his stated position.
Although I am satisfied that George had a genuine belief in the truth of his evidence, I am not satisfied that George's recollection of events that occurred before the purchase of No 6 occurred, or the circumstances in which No 6 was purchased, is reliable in cases where his recollection is not supported by the objective evidence or consistent with the probabilities. In particular, as will be seen below, George's recollection of the circumstances in which No 42 was acquired by Richard and Mary is inconsistent with the evidence that I have accepted.
It was George's case that No 6 was not acquired in his name because he was immature and unreliable with money, and I think that it is likely that George did not always pay serious and close attention to what was happening around him in his early adulthood.
I do, however, accept George's evidence as to the genuineness of his belief that his parents substantially assisted with the purchase of No 6 for the purpose of Richard holding the title to that property on behalf of George, so that he could occupy it as his long-term home. Given the evidence of the third-party witnesses concerning statements made by Souad, and Richard's admissions from time to time that No 6 was George's home, it is probable that statements were made to George by his parents that caused him to believe that No 6 was purchased for his own benefit. The truth of whatever statements were made to George by his parents is another matter.
It is probable that George's belief that No 6 was purchased on the basis that George would be able to occupy the property indefinitely as his home has been reinforced over the years by the accumulation of circumstances that have been entirely consistent with that being the intended position at the time No 6 was acquired.
I am generally satisfied with the accuracy of George's evidence concerning the events that have happened after the date when No 6 was acquired. There is room to doubt the reliability of the evidence given by both George and Richard concerning the precise circumstances in which No 6 was occupied in the first couple of years after its acquisition. However, George's evidence concerning the decades after those initial couple of years is consistent with the objective evidence, as to which there is relatively little scope for contention.
As I have noted above, Richard only claimed that he asserted his right to the ownership of No 6 to George on two occasions over the years, and George's denial of those claims is credible, given that Richard did not give evidence of any serious attempt over the years to make it clear that not only was the title to No 6 in Richard's name, but that he reserved the right to eject George and his family at any time at Richard's convenience.

Credibility of Richard's evidence

Richard gave his evidence in cross-examination more competently than George, in the sense that Richard appeared to be more capable of understanding the nuances in the questions put to him more fully than George was able to do, and his answers were generally more direct and responsive.
Richard appeared to me to be guarded and defensive and, as might only be expected given Richard's self-interest in the outcome, Richard appeared to me to be studious in responding to questions in the manner most beneficial to his case.
While there is little objective basis for the Court to find fault with Richard's evidence, as a general matter, I did not find his evidence to be persuasive, in the sense that I would simply accept him at his word, without weighing carefully the consistency of his evidence with the objective circumstances and the probabilities.
As I have mentioned above, I am satisfied that Richard sought to downplay the level of his knowledge of the renovations of No 6 that were carried out by George and Anne, as well as the extensiveness of those renovations.
Richard's case was that he was disinterested in the renovations, and he stood by and allowed George and Anne to make substantial expenditures on the renovations, on the evident basis that they thought that they were renovating their own home, without making it clear to them that Richard considered that he had a right to eject George and Anne and their family whenever he chose to do so.
As I have explained above, it was Richard's choice to attempt to prove that he had the funds to pay the whole of the price of No 6 over a period of 6.5 years, in the context of all of the other purchases of property that he made, from his own resources. In my view, that attempt failed, even though the ultimate result has not been conclusive and has only led the Court to entertain a serious doubt as to the validity of Richard's claim.
The outcome has been that the Court is not satisfied that it can properly rely upon the uncorroborated evidence of either Richard or George as to the events that occurred before the purchase of No 6, and the circumstances in which No 6 was acquired, and the source of funds for the payment of the purchase price.

Credibility of Mary's evidence

Although Mary gave evidence of her recollection of life in the family home at No 12, and as to the material circumstances of her parents, the most significant evidence that she gave concerned the circumstances in which she and Richard purchased No 42 with their own funds, and repaid the mortgage on that property, until Richard acquired Mary's half interest in the property. Mary was cross-examined briefly, and while the outcome may be that Mary's recollection of events in the family household may have dimmed with the passing of the years, as may be natural in the circumstances, her evidence concerning the circumstances in which No 42 was acquired and paid for was not challenged.

Material findings of fact

Having set out above the relatively uncontroversial background facts and then having examined in more detail the evidence concerning significant forensic issues that were in dispute, it will now be appropriate for me to set out my findings on the issues that are primarily relevant to the determination of the parties' claims.
In relation to the many disputes in this case about whether conversations occurred long in the past and as to the content of those conversations, if they did occur, this case exemplifies the difficulties that were explained by McLelland CJ in Eq in Watson v Foxman, as set out above.
Further, as was said by Hammerschlag J (as his Honour then was) in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451: [94] Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319. [95] The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is.
It is, in my view, highly likely that both George's and Richard's recollection of conversations and events has been coloured in their favour by the effluxion of time before they were required to record their evidence. That is true, but perhaps less so, for the other witnesses.
Further, a consequence of the passage of time is that the banking records that would ordinarily be determinative in the resolution of the factual disputes between the parties are almost entirely unavailable.
As is common, however, the parties conducted their cases on the assumption and in the hope that the Court would accept the credibility of one side's evidence to the exclusion of the other, so that, on a 'winner-takes-all' basis, the Court would accept the case propounded by one side and reject the case propounded by the other.
That aspiration has failed in the present case, because, for reasons that I will explain below, I am not prepared to accept unequivocally the evidence of either George or Richard on issues that are in dispute between them, and I have found no basis to accept the evidence of one in preference to the other, particularly when the subject matter is significant conversations between them.
The Court has been required to make findings on the basis of an assessment of the probabilities derived from the testimonial evidence of witnesses that it has accepted, and what may be inferred from a consideration of the circumstances that the Court has accepted have been objectively established.
The observation made by Hammerschlag J at [216] is acutely relevant in the present case. There have been issues in dispute between the parties in this case where the parties' claims are diametrically inconsistent. I have sometimes been unable to reason from the testimonial and objective evidence to reach the necessary level of actual persuasion, either way, in relation to the determination of the particular contest, so that I could make relevant findings of fact to the requisite standard of the balance of probabilities. Where that has happened, I have simply made no finding one way or the other as to the existence of the asserted facts. Notwithstanding careful attempts to do so, consistently with proper judicial method, I have in some cases concluded that a finding in favour of one side or the other would involve an illusory attempt to determine the correct balance by placing featherweights on one side or the other of the scales.
In summary, I have found that the evidence requires the time period over which relevant events have occurred to be divided broadly into two periods; the first being the period up to shortly after the date of the acquisition of No 6, the later period being from the time when George commenced to occupy No 6 on a basis that is objectively consistent with it being the belief and intention of both George and Richard that George was the owner of No 6.
As to the first of these periods, I hesitate to make any positive findings; and in particular, positive findings concerning the circumstances in which No 6 was purchased in the name of Richard and given to George as his home, and as to the manner in which the purchase price of No 6 was paid, and by whose funds.
As to the second of the periods, I am satisfied that, whatever precisely was said or done to cause George, and later Anne, to hold that belief, they, until about 12 December 2014, held the belief that George was entitled to occupy No 6 as his permanent home. Although I have been unable to decide as an objective fact what the source of funds was for the purchase of No 6, I am satisfied on the balance of probabilities that George's parents told him that they had caused No 6 to be bought for George and put in Richard's name for safekeeping, even though I cannot be satisfied that that claim was true. Although the evidence does not enable the Court to be satisfied that any particular conversations took place at the time of purchase of No 6, or thereafter, I am satisfied on the balance of probabilities that Richard was aware that his parents had informed George that Richard held the title to No 6 for George, and that the property was George's home. I say that because it is consistent with the entirety of Richard's objective conduct since George commenced to live in No 6. That conclusion is also supported by the evidence of the independent witnesses, particularly that given by Mr Trad.
There is only the slightest evidence that Richard ever asserted his formal legal ownership of No 6 against George, and I have not accepted that Richard explained that position to George in a manner that was sufficient to disabuse George of his genuine belief that Richard held the title to No 6 for George's benefit.
As to the first period, I have concluded that the evidence is not sufficient to support a positive finding by the Court, on the balance of probabilities, that Fahad and Souad applied a Lebanese custom whereby they used their own funds to buy homes for both of their sons. It would not be warranted for the Court to make such a finding in the face of the evidence given by Richard and Mary as to the manner in which No 42 was originally purchased by them. In particular, Mary's evidence on the subject was not sufficiently challenged in her cross-examination.
However, I find aspects of the evidence as to how No 42 was ultimately acquired solely by Richard unsatisfactory. Richard introduced evidence that had the effect that Mary sold him her half interest in No 42 that was worth $52,000 for a price of $30,000. The evidence was that Mary wished to sell her share in No 42 to Richard so that she would have funds to establish a household with her husband. While it is true that this issue was not explored at the hearing, it strains credibility to accept that Mary would have made a gift of an amount in the order of $22,000 to Richard in these circumstances. The significance of this issue is in the manner in which it causes the Court to doubt its ability to make accurate positive findings as to the events that occurred as long ago as 1987, simply on the say-so of the witnesses.
In regards to the dispute between the parties concerning the circumstances of Fahad's retrenchment and the amount of retrenchment pay that he received, I am not satisfied that the evidence is sufficiently reliable to enable the Court to make any positive finding on the balance of probabilities. I think it is probable that George's definite recollection of the date of the retrenchment and the amount received by Fahad is not reliable (given, in particular, that it seems that George did not recall the correct name of the suburb in which Fahad had been employed). However, the Court can make no safe finding at all as to the funds that may have been available in the period up to the time when the mortgage over No 6 was repaid in 1994. Fahad and Souad had apparently paid off the mortgage on their home at No 12 by the early 1970s. Apparently, their income was modest, although the evidence suggests that Souad, in particular, was careful with money. She owned properties in Lebanon. There is no basis for the Court to make any positive findings concerning the funds that were available to Fahad and Souad at relevant times. The implication in the evidence is that the properties in Lebanon had value, but there is no evidence at all as to that value, or whether Souad received income from the properties.
No 6 was purchased on 5 February 1988 for the price of $110,000 and Richard became the registered proprietor, and the mortgagor of the property in favour of the CBA for a mortgage of $60,000. The mortgage was repaid through an account at the CBA in Richard's name. I have not found it possible to make any positive finding on the balance of probabilities as to the ultimate source of the funds that were used to pay the balance of the purchase price and to repay the amount of the mortgage. It is possible that some or all of those funds were from Richard's savings, but it is also possible that some or all of those funds were contributed by Fahad and Souad. As I have explained above, Richard's attempt to prove to the Court that he had the funds to purchase No 6 from his own resources failed, but it remains possible that Richard paid for the property, or at least a substantial portion of the price, from his own resources.
I do not accept the plaintiffs' case that the mortgage over No 6 to the CBA was repaid by Souad from the proceeds of sale of her Lebanese properties. The evidence was that properties were sold in 1994, and while that was the year in which the mortgage was ultimately repaid, the plaintiffs' argument is inconsistent with the pattern of repayments, and only $10,000 was repaid in 1994: see [167(5)] above. The evidence does not exclude the possibility that Souad had funds that enabled her to contribute to the repayment of the mortgage from year to year, but there is no evidence that would support a positive finding to that effect.
Yet, so far as the dealings with Souad's Lebanese properties are concerned, there is the intriguing evidence from Richard that Souad gave the benefit of one of her properties to relatives, transferred one property to Richard, and transferred another into the name of Richard's daughter. The evidence does not suggest any reason why Souad would have acted in that manner, unless she thought that George had already adequately been provided for.
The most telling evidence in favour of the plaintiffs' case concerning the circumstances in which No 6 was purchased is the evidence given by Mr Trad in his evidence in chief that is set out above at [93], where Mr Trad said: "It's a property that is in my name but belongs to my brother, George. And I said, "How? Why is that? Why is it in your name and not George's name?" Richard told me that his parents chose to put it in Richard's name in trust for his brother, because at the time George was - his activities weren't such that the family supported which included gambling and befriending girls that they weren't happy with at the time".
Notwithstanding the consistency of this evidence with the evidence given by George concerning his recollection of the circumstances in which No 6 was purchased, I do not have a finding of actual persuasion that is sufficient to make a positive finding on the issue, given the level of inconsistency in the evidence on the issue taken as a whole. That level of inconsistency may not be surprising, given that No 6 was purchased in 1988.
Even though the evidence that remains available has not been sufficient to enable the Court to find with a reasonable degree of confidence on the balance of probabilities what the circumstances were in relation to the acquisition of No 6 that caused George to believe that the property was George's home, I am satisfied that those beliefs arose at the time the property was acquired as a result of the circumstances of its acquisition. This is not a case where the plaintiffs have alleged that Richard simply made a representation to George that Richard would hold the title to No 6 for George's benefit, and there was no positive evidence that Richard made such a representation to George.
It is, in my view, highly significant that the only evidence given by Richard as to the reason why he put George into occupation of No 6 was that he thought that George was annoying his parents while he was living in their home, so that Richard said to George in early 1990: "George, I'm putting you in number 6 until I get married and moved in": see [53] above. Richard did not provide a plausible explanation as to why he allowed George, and later his family, to occupy No 6 and to renovate it on a number of occasions, as if it was their home, for some 25 years before he took any formal step to eject them. As I have noted above, the only explanation given by Richard was that George was his brother. That occupation continued after Fahad's death in 1996, and Souad leaving her home at No 12 in 2007. Richard and Nada married in November 1991, and moved into No 6 with George until around May 1992, when they moved into No 42, as their home. Richard provided no explanation as to why George was not required to move out of No 6 after Richard and Nada moved in, or why he was allowed to continue in occupation, with Richard and Nada moving into No 42. George was permitted to enjoy the sole occupation of No 6 during periods when he and Richard were effectively estranged, such as during the three years before it became apparent that Fahad was terminally ill. Richard did not apparently ask George to pay rent, notwithstanding that there is some evidence that, during the period 2002 to 2005, George was able, according to Richard, to make substantial payments to bookmakers, even before George's properties at Bankstown had been sold. As noted above, an amount of some $344,000 was paid out of the account in Richard's name over a period of about three years: see [153].
Richard only gave evidence in chief of having informed George on two occasions that George was not entitled to the ownership of No 6, once in 2003 and once in 2012: see [59] and [60] above. While I have not accepted that the evidence justifies a finding that Richard ever made it clear to George that Richard was the true owner of No 6, I find it extraordinary that, if Richard genuinely believed he was the beneficial owner of the property, he did not more clearly and consistently assert that position to George. Richard made no suggestion that he ever said anything to Anne that Richard was not only the legal owner of No 6, but he considered himself to be the true owner with a right of possession and a right to eject Anne when he chose to do so.
Richard did not propound an alternative case to the plaintiffs' claim that Fahad and Souad paid the purchase price for No 6, so that Richard would hold the title to the property for the benefit of George, by suggesting that for some reason his parents expected Richard to allow George to live in No 6, even though the purchase price had entirely been paid by Richard from his own resources. Richard did not propound a claim that he allowed George, and later George and Anne and their family, to live in No 6 as their home solely in order to please Souad, for some reason known to Richard and Souad.
Yet Richard did not take any step to eject George and Anne from No 6 until 12 December 2014, about a year after Souad's death on 18 October 2013. There was some indefinite evidence, which I have not thought necessary to attempt to analyse in detail, that Richard also waited until certain issues concerning Souad's estate had been settled, which apparently included the compromise of a claim for further family provision out of the estate that was made by Adele under which she received an additional share of the estate. Richard only served the eviction notice on George and Anne after the expiry of the 12 month period after the death of Souad for the making of a family provision application by George provided in s 58(2) of the Succession Act NSW (2006). Consequently, the period expired while George believed that No 6 belonged to him.
On the basis of the evidence and my assessment of Richard's cross examination, I regard Richard's subjective beliefs concerning the true ownership of No 6 to be an opaque matter. He asserted that he always believed that he was not only the registered proprietor but that he was also the true owner. But he did not act as if that was his real belief until 12 December 2014. The admissions that I have accepted were made by Richard to third parties were isolated, but they are consistent with Richard having a belief at the time they were made that George was entitled to live in No 6 as his home. The evidence given by Mr Trad on this issue was particularly telling. As George had in fact lived in No 6 for many years as if it were his home, it would be understandable that Richard could have made casual observations to others that No 6 was George's home, without meaning that his right to the property was legally enforceable. Casual admissions in those circumstances may simply have reflected the practical reality of the situation. However, the real ownership of No 6 had legal significance in the context of the transaction in which Mr Trad was involved. Richard's conduct on that occasion is consistent with Richard having a real belief that George was the true owner of No 6.
I have not been able to make any specific findings on the balance of probabilities as to how George, or George and Anne, would have responded if at some earlier time Richard had taken some unequivocal step to assert his right to possession of No 6 and to eject George and Anne. Neither George nor Anne gave evidence on this issue. That is understandable, because the evidence would have been hypothetical, and the range of their responses would have been large depending upon the time and the context in which Richard declared his position. It would have been difficult, if not impossible, for George and Anne to have given retrospective evidence on this issue. It is also possible that if Richard had declared his position while Souad was alive and competent, Souad's reaction to Richard's conduct may have had a significant consequence to the result. That reaction is now a matter beyond even speculation.
I think that the Court is entitled in the circumstances to draw inferences as to the probable reaction of George, and then George and Anne, to any earlier attempt by Richard to assert that he was the true owner of No 6, by reference to the Court's assessment of how ordinary people in the position of George and Anne would normally react. Depending upon timing and context, George, or George and Anne, may have reacted by commencing proceedings to seek relief comparable to that sought in these proceedings. They are very likely to have invoked the assistance of Souad, whose reaction may have been decisive. In any event, it is highly probable that Souad's reaction would have provided cogent evidence concerning the involvement of Fahad and Souad, if any, in the purchase and the payment of the price for No 6. I am satisfied that, subject to the result of any earlier proceedings or the appeal to Souad, if that had been possible at the time, George and Anne would not have simply persisted in acting as if George was the true owner of No 6. They would not have paid for any renovations that had not by that time been commenced, without being satisfied that they had a legal right to occupy No 6 for a period of time that was warranted by the amount of the expenditure on the renovations. Most likely, George would not have acquired the two Bankstown properties, which were not suitable family homes. Although the conclusion verges on speculation, I am satisfied from my observation of Anne giving her evidence that, notwithstanding George's apparent disposition towards gambling, she would have obliged him to apply the resources that he did have to the purchase of a family home in lieu of the family's uncertain tenure of No 6. It is unsurprising in all the circumstances that there is no ready evidence that could be tendered by the plaintiffs to prove on the balance of probabilities what alternative accommodation the plaintiffs' financial circumstances may have enabled them to acquire.
The last matter that I need consider is the circumstances in which No 6 has been mortgaged to secure a debt owed by one of the brothers to a financial institution. No 6 was first mortgaged to the CBA to secure a loan of $60,000 made to Richard to enable him to complete the purchase of the property. No 6 was mortgaged for a time to secure a loan made to George to enable him to purchase the bread run. No 6 was mortgaged to secure a loan made to Richard to enable him to purchase the Bargo property. I understand that it was this transaction in which Mr Trad became involved, as Mr Trad described the property as "being acreage". I am satisfied that George's own evidence was that he agreed to Richard granting a mortgage over No 6 to secure a debt used to assist in the purchase of the Bargo property.
There has been no suggestion that George or Anne were aware of or consented to Richard transferring No 6 into the joint names of himself and Nada, or that they were aware of or consented to the mortgage granted by Richard and Nada on 9 January 2014 that is referred to above at [21].
The fact that George and Richard agreed on a number of occasions that a mortgage would be granted over No 6 to secure a loan for the benefit of one or the other brother could be relevant to the Court's consideration of the real understanding of each brother as to the significance of Richard being the legal owner of No 6, but George using it as his home. The fact of the granting of the mortgages may tend to blur the distinction between who was the owner and who was the occupier. The parties did not make any submissions in relation to whether the fact of the mortgages being granted was relevant to the brothers' understanding of who the real owner of No 6 was.
The same is true in relation to the purchase of the two home units in Bankstown. Those events do, however, suggest that, as between the brothers, there was an acceptance of the unusual circumstance that Richard, as the older and more creditworthy brother, would hold the title to property of which George was the true owner. This tends to explain why George was content for as long as he was for the legal title to No 6 to remain with Richard.

Consideration

The defendants are the registered proprietors of No 6, and thus the legal owners of the property. The legal burden of proof falls upon the plaintiffs to establish on the balance of probabilities that the facts justify the Court in making an order that has the effect that the plaintiffs are, or one of them is, the beneficial owners or owner of No 6. If that order is made, then the plaintiffs will be entitled to a consequential order that the defendants transfer the property to the plaintiffs.
The plaintiffs submitted that the burden of proof had shifted to the defendants to prove that they had paid the price for the purchase of No 6. The defendants correctly resisted that submission, as the legal burden of proof does not change. While the issue depends upon what is proved on the balance of probabilities, the Court must require a high level of satisfaction to be established before it will make an order that disturbs the proprietary rights of the registered proprietor of land.
However, the fact that the legal burden of proof remains with the plaintiffs is not inconsistent with the evidence that has been received by the Court leading to the defendants becoming subject to a practical onus to lead evidence to dispel the forensic effect of the evidence that has been received, where that effect is that the Court may find that the case propounded by the plaintiffs has been proved on the balance of probabilities. In my view, there was in the present case ample evidence that called for an answer from the defendants, where that answer was not forthcoming. The fact that Richard permitted George, and then the plaintiffs, to live in No 6 as their home for 25 years without payment of rent, and that he sat by while observing that the plaintiffs carried out three significant renovations of the property, called for some explanation by the defendants. In substance, the only response of the defendants was to attempt to prove that Richard paid the whole of the purchase price for No 6, and then to argue that there was no direct, objective evidence of the circumstances alleged by the plaintiffs concerning the purchase of No 6 using the parents' funds as a home for George. The defendants also placed their case on the basis that there was no direct evidence that Richard knew that George believed No 6 was his permanent home. Richard gave evidence of the two conversations that I have considered above, in which he claims to have disabused George of his belief that he owned No 6, and Richard denied that he made the statements the subject of the evidence given by the independent witnesses of admissions made by Richard concerning the circumstances of the purchase of No 6 and its true ownership by George. Ultimately, the defendants did not make any real attempt to provide a plausible explanation for Richard's conduct in allowing the plaintiffs to occupy No 6 as their home for 25 years that is consistent with a finding by the Court that the plaintiffs knew, or ought to have known, that they were living in No 6 at Richard's pleasure.
The plaintiffs submitted that there was: "Excessive delay caused by the defendant" and that the defendants should not be permitted to reap the benefits of "bringing the case now": T 316.37. But although Richard commenced proceedings in the Tribunal on 12 May 2017, it is the plaintiffs who commenced these proceedings on 19 February 2018. It is plainly true that significant evidentiary difficulties have arisen because of the lapse of time since the purchase of No 6, but it is also true that both George and Richard allowed that time to elapse without resolving the legal effect of the unconventional arrangement between them concerning the title and right to occupy the property.
The plaintiffs went so far as to claim that the defendants' title to No 6 was defeated by the equitable defence of laches because of the time that they had allowed to elapse without taking proceedings to establish their beneficial ownership of No 6. But that defence is not available to the plaintiffs, because the defendants have asserted their legal title to No 6 by reason that they are registered proprietors, and laches is only a defence to an equitable claim: see Orr v Ford (1989) 167 CLR 316; [1989] HCA 4, per Deane J at [12], with whom Mason CJ agreed.
There are difficulties in characterising the nature of the equitable interest of the plaintiffs in No 6 that may have existed or arisen as the result of the changing circumstances over the 25 years to the time when the defendants demanded possession of the property from the plaintiffs. I am reminded of the observations made by the learned editors of JD Heydon and MJ Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016) at [13-02] (Jacobs'), where they said: "The difficulty is in isolating or defining those circumstances in which equity will treat it as unconscionable for a party to deny the trust. Up to a point, the difficulty is diminished by the existence of well-recognised categories of cases in which a constructive trust arises…" [emphasis added]. There may be cases, of which I believe the present is one, where the Court may properly be satisfied that property is held on a constructive trust, but where it is difficult to place the circumstances within an established category, or the circumstances may fall within a number of categories or evolve from one category to another over time. Furthermore, the objective circumstances may demonstrate the existence of a constructive trust in fact, even though the effect of frailties in the evidence is that the Court cannot determine, on the balance of probabilities, how those circumstances arose. There may be cases where the Court can properly infer the existence of the elements required to establish a constructive trust even though the effect of the passage of time is that the Court cannot distinguish the real cause of those circumstances from a number of possibilities.
By the plaintiffs' second amended statement of claim and their outline of opening submissions, the plaintiffs claimed that the defendants hold the title to No 6 on constructive trust for them on the basis of the principles concerning common intention and the failure of a joint endeavour, as considered by this Court in Shepherd v Doolan [2005] NSWSC 42, Hansen v Noble [2021] NSWSC 138; (2021) 20 BPR 41,181 and Clayton v Clayton [2023] NSWSC 399. I do not accept that the circumstances of this case are capable of supporting a finding, in any relevant sense, that there was a joint endeavour between George, Richard and their parents that has failed in circumstances where the legal title to No 6 resides with the defendants.
If the evidence had satisfied the Court that No 6 had been purchased with money provided by Farhad and Souad, or that they had provided a substantial part of the purchase price, upon the basis of an agreement within the family that the title to the property would be placed in Richard's name on trust for George, then the Court may have been justified in finding that Richard held the property on trust for George from the date of its transfer to him, because his claim of ownership would have been unconscionable. The Court would in those circumstances have enforced an express trust notwithstanding the absence of writing required by s 23C of the Conveyancing Act 1919 (NSW), as it would have been a fraud on the statute for Richard to have denied the trust: see Jacobs' at [7-09].
That case would not fall within the general understanding of the circumstances that give rise to a common intention constructive trust, where the parties agree that the beneficial ownership of property legally owned by one of them will vary in favour of the other in proportion to the contributions or benefits conferred by the other on the party who is the owner. In the present case, the plaintiffs' claim that George was the beneficial owner of No 6 from the time the title was transferred to Richard is an all or nothing claim dependent upon the common intentions of Richard and his parents in the context of the provision of the purchase price by the parents. There was never any question of George paying any part of the price or making any other contribution that would lead to the proportionate transfer of beneficial ownership of the property to George.
I have found that the plaintiffs have not established the existence of a trust in George's favour on the basis alleged, even though the circumstances are murky, and the conduct of George and Richard from the date of purchase of No 6 is objectively consistent with something happening at the time of the purchase that caused both brothers to think that the property would be George's permanent home.
The plaintiffs also relied in their second amended statement of claim and written opening submissions on the principles concerning the existence of a proprietary estoppel by representation and by convention. The former is not relevant to the present case, at least to the extent that there is no evidence that Richard made any express representation to George concerning his ownership of No 6 or that George acted on the faith of any such representation. In fact, the plaintiffs did not plead the making of an express representation in their second amended statement of claim, and instead in that part of their pleading that related to estoppel by representation they alleged in par 18B that George "adopted an assumption" that No 6 was beneficially owned by him when he moved into the property.
The appropriate analysis of the circumstances that most closely conforms with recognised principle is in terms of proprietary estoppel based upon an assumption or convention, although, as I will explain below, there is a basis for a finding that Richard's conduct in standing by, over a period as long as 25 years, knowing of George's assumption that he was the true owner of No 6, impliedly affirmed to George the truth of George's belief. The effect of the passage of time and the consequent paucity of the evidence is to make it difficult to isolate the circumstances in which relevant assumptions were made or the convention as between George and Richard that George was the true owner of No 6 developed. But in my view, the evidence strongly establishes that from some presently unidentifiable time, at or within a few years of the purchase of No 6, George formed the assumption that he was the true owner of No 6, and that a convention developed as between George and Richard that that was the real situation.
The basic principles concerning the circumstances in which a proprietary estoppel may arise were not in issue. In Rixon v Horseshoe Pastoral Co Pty Ltd [2017] NSWSC 1293, Brereton J (as his Honour then was) said (footnotes omitted): [57] The plaintiff's case is put primarily on the basis of an equitable proprietary estoppel, the elements of which were articulated by Brennan J in Waltons Stores (Interstate) Ltd v Maher as follows: … it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. [58] Equity comes to the relief of a plaintiff who has acted to his or her detriment on the basis of a fundamental assumption, in the adoption of which the defendant has played such a part that it would be unfair or unjust if he or she were left free to ignore it, on the footing that it would be unconscionable for the defendant to deny the assumption. While it is essential to an equitable estoppel that the defendant knows or intends that the party who adopts the assumption will act or abstain from acting in reliance on it, and such knowledge or intention may easily be inferred where the adoption, assumption or expectation is induced by the making of a promise or representation, it may also be found where a defendant encourages a plaintiff to adhere to an assumption or expectation already formed, or acquiesces in an assumption or expectation when, in conscience, objection ought to be stated. The unconscionability which attracts the intervention of equity is the defendant's failure, having induced or acquiesced in the adoption of the assumption or expectation, to fulfil it, or otherwise to avoid the detriment which that failure would occasion. [59] While numerous judicial and academic attempts have been made over the years to catalogue the elements of an estoppel of this type, it suffices for present purposes to observe that, at least generally speaking, the matters that a plaintiff must establish to found such an equitable estoppel may be characterised as comprising certain conduct of the plaintiff, certain conduct of the defendant, and certain qualities of the subject matter, which for present purposes, may be sufficiently summarised as follows. First, as to the conduct of the plaintiff, that the plaintiff acted, or abstained from acting, in reliance upon an assumption or expectation that a particular legal relationship existed or would exist between the plaintiff and the defendant or that the plaintiff had or would acquire some interest in the defendant's property. Secondly, as to the conduct of the defendant, that the defendant induced the plaintiff to adopt the assumption or expectation and encouraged the reliant activity of the plaintiff, or at least failed to deny the assumption or expectation with knowledge that the plaintiff was relying on it to the plaintiff's potential detriment, and that the expectation could be fulfilled only by transfer of the defendant's property, a diminution of the defendant's rights or an increase in the defendant's obligations. Thirdly, as to the subject matter, that the assumption or expectation in respect of it was one that the defendant could lawfully satisfy. Ordinarily the relevant conduct of the plaintiff (assumption or expectation) and that of the defendant (encouragement or acquiescence) will be factually interrelated and interwoven.
In Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220; (2020) 383 ALR 469, Meagher JA said (Leeming and Payne JJA agreeing): [15] Q's argument in support of this ground emphasises the distinction between proprietary estoppel by encouragement and proprietary estoppel by acquiescence, the latter understood in the sense of "standing by". The former, as formulated in Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [6], is founded in an assumption as to the future acquisition of ownership of property which has been induced by a representation or promise upon which there has been detrimental reliance by the plaintiff. As Mr Handley observes in Estoppel by Conduct and Election (2nd ed, Thomson Reuters, 2016) at [3-001], a representation or promise "may be implied wholly or partly from conduct or inferred from silence or inaction". Whether any, and if so what, representation has been made is to be judged "objectively according to the impact that whatever is said [or done] may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee" per Mance LJ in MCI [2004] 2 All ER (Comm) 833 at 844. See also Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18 at [24]-[27] (Lord Rodger) and at [80], [84]-[86] (Lord Neuberger). In this Court, see Galaxidis v Galaxidis [2004] NSWCA 111 at [93]; Sullivan v Sullivan [2006] NSWCA 312 at [85]; and Evans v Evans [2011] NSWCA 92 at [124]. [16] Proprietary estoppel by acquiescence, on the other hand, describes a much narrower principle, and arises "where a person improves land in the mistaken assumption that it is his own, the true owner being aware of the mistake and deliberately doing nothing to undeceive the other" per Jordan CJ in NSW Trotting Club Ltd v Council of the Municipality of Glebe (1937) 37 SR (NSW) 288 at 308. In such circumstances equity regards it as "fraudulent" for the true owner to set up his existing rights as against the person who has made a mistake as to his legal rights and acted to his detriment on the basis of that mistaken belief: Willmott v Barber (1880) 15 Ch D 96 at 105-106 (Fry J). See generally Estoppel by Conduct and Election at [11-002], [11-008]. As the author observes, "Estoppels by standing by are rare". The "conduct of the owner which attracts the estoppel is his silence, but it differs from other estoppels by silence because there may be no pre-existing relationship or duty, and no dealings direct or indirect" (at [11-011]). The "improver acts on his mistaken belief and not on any representation by the land-owner" (at [11-012]). [17] Mr Handley's reference to "other estoppels by silence" recalls the statement of Lord Eldon LC in Dann v Spurrier (1802) 7 Ves Jun 231 at 235-236; 32 ER 94 at 95 that a court of equity "will not permit a man knowingly, though but passively, to encourage another to lay out money under an erroneous opinion of title; and the circumstance of looking on is in many cases as strong as using terms of encouragement" (emphasis added). In Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 at [109] this statement was taken to support the undoubtedly correct view that silence or inaction, in the context of other conduct, may constitute an "element of assurance" in support of a claim to a proprietary estoppel by encouragement.
An important aspect of the legal principles that govern the existence of a proprietary estoppel by acquiescence is that the significance of events must be determined as at the time when the party who has acquiesced seeks to depart from the assumption upon which the other party has acted. As Campbell JA said in Evans v Evans [2011] NSWCA 92 (Giles JA and Sackville AJA agreeing): [107] The expectation that Peter and Sophie could reasonably derive from Robert's words and actions need not depend on the words of a single conversation, but could arise from conduct over a period of time. The equity involved in proprietary estoppel operates by considering whether it would be contrary to good conscience (measured according to equity's standards) for a defendant to disappoint the expectation that the plaintiffs have. The relevant time for the consideration is the time that the defendant seeks to disappoint that expectation. [108] In Delaforce v Simpson-Cook [2010] NSWCA 84 at [81], Handley AJA (Allsop P and Giles JA agreeing) quoted with approval a remark of Hoffmann LJ in an unreported judgment of Walton v Walton (Court of Appeal of England and Wales, 14 April 1994, unreported), that had in turn been adopted in Thorner v Major [2009] 1 WLR 776 by Lord Walker at 794 and Lord Neuberger at 805: "… equitable estoppel [by contrast with contract] … does not look forward into the future [it] looks backwards from the moment when the promise falls due to be performed and asks whether, in the circumstances which have actually happened, it would be unconscionable for the promise not to be kept." [109] Similarly, in Green v Green (1989) 17 NSWLR 343 at 355-356 Gleeson CJ (Priestley JA agreeing) pointed with apparent approval to an aspect of the reasoning in Grant v Edwards (1986) Ch 638: "Mustill LJ (at 651) observed that although a number of judgments in this area refer, for simplicity of expression, to intention or conduct "on acquisition" of the relevant property, in a given case the relevant events leading to a finding of an interest in the claimant may occur after the acquisition, and beneficial interests may change in the course of the relationship between the parties. This observation was expressly approved by the Privy Council in Austen v Keele [(1987) 10 NSWLR 283 ; 61 ALJR 605 ; 72 ALR 579] 290; (at 609; 587)." [110] That enables all the conduct up to the time of Robert's disappointing or attempting to disappoint the expectation to be taken into account. The expectations that Peter and Sophie show that they had from time to time, and the extent to which Robert knew about them or induced or encouraged them, are relevant to deciding whether it would be contrary to good conscience for Robert to disappoint the expectation that Peter and Sophie had come to have. This is because it is acts done in reliance on the expectations which the plaintiffs have from time to time that generate an equity in their favour…
To the same effect, see the judgment of Meagher JA (Macfarlan JA agreeing) in DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) (2011) 83 NSWLR 728; [2011] NSWCA 348 at [72]-[73] and Campbell JA (Bergin CJ in Eq and Sackville AJA agreeing) in Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 at [80].
The judgment of Campbell JA in Evans v Evans is helpful in the present case in relation to the significance of the reliance by the defendants on the assumption that they made and the detriment that they suffered as a result. His Honour said: [113] Peter and Sophie's subsequent conduct was to make no attempt to purchase a house or other dwelling for themselves and to spend significant money on the property over many years. Robert's response (or more accurately, lack of response) to their subsequent conduct is a significant matter adding justification to Peter and Sophie's assumption that the house was theirs. While they did not ask Robert's permission for the work they carried out, there were repeated improvements to the property. On their case, these modifications must have been visible to Robert when he visited, yet he never made a word of complaint about them having effected the alterations without his approval. Indeed according to Sophie he said, concerning the kitchen alteration "Well, it's your house". That conduct, taken in combination with what Peter and Sophie say were the representations made to them before they moved into the property, amount to Robert standing by with knowledge that they were acting in the belief that the house was theirs. [114] On Peter and Sophie's case, they have suffered significant detriment by acting on the basis that the house was theirs. There was express evidence to the effect that they would not have moved into the house at all if they thought they were renting, and would not have carried out the improvements if they thought they were renting. There are the objective facts that they made no attempt to acquire a home for themselves, and that Peter is now in his mid-fifties, which is quite an unpromising age at which to be seeking a mortgage to buy a property. … [116] … The upshot of their evidence is that their understanding was that they had been given the house, and that they had the obligation to make the payments. They organised their lives around that understanding for decades. It would be belittling for a lawyer to denigrate or deny the reality of their understanding on the basis that it did not fit into a lawyer's categories of analysis. An equity concerning proprietary estoppel arises by virtue of the expectations that the plaintiffs actually had, that were induced or encouraged by the defendant and on which the plaintiffs actually acted to their detriment. Those are questions of fact, not of legal analysis.
As the defendants did not act to assert their legal ownership of No 6 until Richard served an eviction notice on the plaintiffs on 12 December 2014, it is necessary for the Court to assess the significance of the parties' conduct by looking back at events from that date. I have found that Richard was aware from a time at or shortly after the date of purchase of No 6 that it was George's belief that the property had been purchased for him as his home indefinitely. Whatever Richard in fact thought about the matter, it ought to have been obvious to Richard as time passed by that George's, and later Anne's, belief that George was the real owner of No 6 would be continually reinforced by his silence in the face of the plaintiffs' treatment of the property; that is, their occupation without the requirement of a lease or the obligation to pay rent, their continuing payment of outgoings and insurance, their three renovations and day-to-day maintenance of the property. In this context, Richard's silence as the legal owner had a greater effect than mere acquiescence or standing by. It would in the circumstances have had the effect of cementing the assumption of the plaintiffs that George was the true owner of No 6.
It may be that in the period up to the commencement of the first renovation carried out by the plaintiffs in 2001, Richard could reasonably have claimed that the plaintiffs had suffered no real detriment as a result of George having acted on the belief that he was the true owner of No 6, because George had enjoyed the benefit of living in the property rent-free upon payment only of outgoings for much of the period. But in 2001, Richard stood by while the plaintiffs paid about $30,000 for a relatively minor renovation. Although minor, the renovation was obviously not one likely to be carried out by an occupier without any long-term tenure of the property. Richard was aware of the purchase and sale of the Bankstown home units in the period August 1998 to March 2005, as Richard was on the title to both properties as a registered proprietor, and Richard must have learned of the manner in which the net proceeds of sale were disbursed by George because Richard was the sole signatory on the bank account into which the proceeds of sale were paid. Richard was also aware of George's dealings with the funds in George's account (that was controlled by Richard) that Richard claims substantially involved payments to bookmakers. It ought to have been understood by Richard that the plaintiffs were making no apparent attempt to buy an alternative family home because of their understanding that they had no need to do so. Then, in 2008, Richard became aware that the plaintiffs had embarked upon a relatively substantial home renovation that in the ordinary course would only be undertaken by persons who believed that they were renovating a home that was their own property. In relative terms, given the means of the plaintiffs, the 2008 renovation involved a substantial rebuilding of the property at a cost of about $200,000 plus George's personal efforts, and was the type of project that ordinary people might undertake to prepare their forever home. Yet again, Richard stood by and said nothing. This state of affairs continued until after the plaintiffs completed their 2013 renovation at a cost of about $60,000. The building of a granny flat for Anne's mother to occupy is outwardly consistent with the plaintiffs' belief that No 6 was their home and that they had a right to occupy it as long as they wished.
The detriment suffered by the plaintiffs in acting on the faith of their assumption as to George's ownership of No 6 is not measured solely in their expenditures based upon their understanding, but also should be measured by their lost opportunity to make alternative arrangements to acquire their own home.
The defendants submitted that the consequences of any proprietary estoppel that the Court might find against them in this case could be remedied by the dismissal of the plaintiffs' claim, subject to an order that the defendants pay to the plaintiffs an amount equal to the value added to No 6 in current terms as a result of the three renovations that the plaintiffs have carried out to the property, which on the expert evidence is the sum of $250,000. The defendants also accepted that the plaintiffs should be given six months to find alternative accommodation.
The defendants submitted that Richard's contribution to the capital value of No 6 included the deposit and all mortgage loan repayments, which would have a present value of between $705,195 and $1,897,569. Those amounts were calculated by the defendants' expert accountant, Ms Bateman, in a letter dated 21 June 2023 (MFI 1) on the basis that Richard paid the total amount of $112,247. The lower amount was calculated on the basis that Richard had instead invested his money on term deposit. The higher amount assumed interest at the Court's pre-judgment interest rates. But although I have accepted that the mortgage was repaid through an account in the name of Richard, by reason of the absence of relevant records and the Court's acceptance of evidence that Richard made admissions that are inconsistent with him having paid the purchase price for No 6 from his own funds, the Court has not made a finding that Richard paid the purchase price for No 6.
The defendants' evidence concerning other payments made by Richard in relation to the ownership of No 6 was not comprehensive and they provided no submissions to the Court on the subject. As explained above, I have calculated for myself an amount that Richard appears to have paid for land tax as a result of his legal ownership of No 6. The Court received no submission from the defendants concerning the significance of these payments. That may be because the evidence was tendered without comment and there was no contest between the parties on the issue.
The evidence establishes that George consented to Richard granting a mortgage over No 6 to secure part of the purchase price of the Bargo property on the apparent basis that Richard would comply with the terms of the mortgage in respect of the making of payments. There is no evidence as to what those terms were. Had that mortgage still been in place, there may have been an argument that it would be equitable for the Court to maintain the status quo. However, there was evidence that the Bargo property has been sold, and the mortgage over No 6 has been discharged. The price received by the defendants for the Bargo property was a substantial sum, though there is no proper reason for the Court to disclose that amount in these reasons. The defendants have re-mortgaged No 6 to secure substantial debts, as has been recorded above. Those mortgages were granted without the consent or knowledge of the plaintiffs. Although part of the relief sought by the plaintiffs in this case is an order that the defendants cause the mortgage over No 6 to be discharged, the defendants have not provided any evidence to show that the making of the orders sought by the plaintiffs would cause them to suffer undue hardship. There is some background evidence that would tend to suggest that the defendants have the resources to refinance the present mortgage on No 6, but that issue was not explored at the hearing, as it was not raised by the defendants, and it is a subject upon which the Court cannot make any finding.
I am prepared to infer on the basis of the background evidence concerning George's occupation and the plaintiffs' apparent ages and their station in life that they would not be able to acquire ownership of any suitable alternative home, if the result of these proceedings was only that the defendants were ordered to pay to them the sum of $250,000. In that event, I am satisfied that the plaintiffs would have wholly lost their opportunity to acquire ownership of a suitable home. I am also satisfied that, if Richard had not stood by and allowed George and later both plaintiffs to treat No 6 as if it was George's property, for the 25 odd years that he did so, then it is probable that the plaintiffs would have rearranged their affairs no later than about 2001, when they carried out their first renovation of the property. It is probable that, in the period that has elapsed since then, the plaintiffs would have been able to acquire a property that is broadly comparable with No 6.
Although there is not a promissory element to the proprietary estoppel to which I have found the defendants to be subject, in the sense that Richard did not make a promise to transfer No 6 to George or the plaintiffs, I have found that Richard's acquiescence had a more wide-ranging effect than that he had merely stood by and allowed the plaintiffs to carry out the renovations of the property without informing them that he was not only the legal owner but that he could at will cause them to be ejected from the property. The plaintiffs knew that George was not the legal owner of the property, but their assumption was that he was already the true owner. I have used the expression true owner because of my inference that the plaintiffs would not have been aware, before the commencement of these proceedings, of the technical differences in the concepts of legal and beneficial ownership of property. I have found that Richard was at all material times aware that the plaintiffs had that understanding, and by implication his consistent failure to clearly inform the plaintiffs that it was Richard who was the true owner had the same effect, although by implication, as would a positive representation by Richard that he would always treat George as the true owner of No 6.
It is necessary for the Court to consider whether there is an appropriate equitable remedy falling short of the imposition of a trust: Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 at [10] per Gleeson CJ, McHugh, Gummow and Callinan JJ. The only alternative suggested by the defendants is an order that they pay the plaintiffs an amount equal to the increase in the value of No 6 that has resulted from the renovations carried out by the plaintiffs, measured as at the present day. In my view that would be an entirely inadequate remedy. The defendants have not propounded a coherent alternative case that, as a condition to the making of an order that the defendants hold No 6 on trust for them, the plaintiffs should be ordered to pay an amount to the defendants that represents payments by them in respect of the property from which the plaintiffs have benefited. Some such payments may have been made, but the defendants have not made this claim in a way that could be contested by the plaintiffs. This is not a case where the Court has been satisfied on the evidence that, at the date that No 6 was purchased, Richard was both the legal and beneficial owner of the property. It is an exceptional result of the fundamental inconsistencies in the evidence in this case - exacerbated by the effect of the passage of time - that the Court has not been able to make any positive finding as to the beneficial ownership of No 6 at the date of its acquisition. The Court has found that Richard did more than merely stand by, but that the effect of his conduct over some 25 years was to reinforce the assumption made by the plaintiffs that George was the true owner of No 6. Consequently, the plaintiffs have acted on that basis over the whole of the period and organised their lives accordingly, in a manner that they have no realistic prospect of retrieving. This is a proper case in my view for equity to give effect to the assumption upon which the plaintiffs have acted, which is the same as to say to give effect to the convention that has operated between George and Richard, and their wives over later periods.
In these circumstances, I am satisfied that the appropriate remedy to avoid the detriment that the plaintiffs will suffer if the defendants are permitted to eject the plaintiffs from No 6 on the terms submitted by the defendants is for the Court to make a declaration that the defendants hold the title to No 6 on trust for the plaintiffs, and to make appropriate consequential orders. The formal orders that the Court will make will contain the title details for No 6.
As Anne's claim to have a beneficial interest in No 6 is narrower than George's, because Anne's understanding was that George, and not Anne, was the owner of the property, and the only detriment suffered by Anne was her contribution to the cost of renovating No 6, which was indistinguishable on the evidence from George's contribution, and perhaps indirectly the failure to acquire a home jointly with George, there is strength in the defendants' argument that the Court should not make an order that has the effect that Anne will become the joint beneficial owner of No 6 with George. However, the defendants did not suggest that they would suffer any additional disadvantage if orders were made in favour of George and Anne jointly, in accordance with the relief sought in the second amended statement of claim. I will in these circumstances make the orders sought by the plaintiffs.
Given the outcome in this matter, it will not be necessary to transfer the proceedings to the Tribunal.

Orders

The Court's orders are: 1. Declaration that the defendants hold the property known as [No 6] ("Property") on trust for the plaintiffs. 2. Order the defendants to cause the mortgage on the Property to be discharged within six months of the date of these orders. 3. Order the defendants to transfer the title to the Property to the plaintiffs unencumbered within one month of the discharge of the mortgage referred to in order 2. 4. Order the defendants to perform the covenants on their part contained in the mortgage referred to in order 2 until the date of its discharge. 5. Grant leave to the parties to apply to the Court on five days' notice for any further orders that may be necessary or convenient to give effect to these orders. 6. Note that the plaintiffs will be entitled to lodge a caveat against the title to the Property to protect the interest in that property to which they have become entitled as a result of these orders. 7. Otherwise dismiss the second amended statement of claim. 8. Dismiss the cross claim. 9. Order the defendants to pay the plaintiffs' costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023

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