Scott Matthew Clout in his capacity as liquidator of Tactoys Pty Ltd v Nguyen & Ors

Category: Principal judgment

Parties: Scott Matthew Clout in his capacity as liquidator of Tactoys Pty Ltd (in liquidation) (First Plaintiff/First Cross-Defendant)
Tactoys Pty Ltd (in liquidation) (Second Plaintiff/Second Cross-Defendant)
David Nguyen (First Defendant/Cross-Claimant)
Graziani & Associates Pty Ltd (Second Defendant)
Macquarie Leasing Pty Ltd t/as Ferrari Financial Services (Third Defendant)

Representation: Counsel:
Q M Noakhtar (Plaintiffs/Cross-Defendants)
J Wang (First Defendant/Cross-Claimant)
C J McDonald (Solicitor - Third Defendant)
Solicitors:
McInnes Wilson Lawyers (Plaintiffs/Cross-Defendants)
Solomons Legal (First Defendant/Cross-Claimant)
HWL Ebsworth Lawyers (Third Defendant)

File Number(s): 2025/66467

JUDGMENT

1. By Amended Summons filed on 19 February 2025, the Plaintiffs, Mr Clout as liquidator of Tactoys Pty Ltd (“Company”) and the Company, seek a declaration that a 2020 Ferrari F8 Tributo (“Ferrari”) is an asset of the Company, or alternatively an order under s 90-15 of the Insolvency Practice Schedule (Corporations) (“IPSC”) that Mr Clout would be justified in treating the Ferrari as an asset of the Company.

2. The First Defendant, Mr Nguyen, claims to be the legal or beneficial owner of the Ferrari and opposed the relief sought by the Plaintiffs. By his First Cross-Claim filed on 5 March 2025, Mr Nguyen seeks orders to the converse of the orders sought by Mr Clout and the Company, namely a declaration that the property in the Ferrari vests in him in his individual capacity, or a converse order under s 90-15 of the IPSC.

3. The Second Defendant, Graziani & Associates Pty Ltd (“Scuderia Graziani”), is a motor vehicle dealer, which currently has possession of the Ferrari, subject to previous interlocutory relief ordered by the Court. It did not appear at the hearing. The Third Defendant, Macquarie Leasing Pty Ltd t/as Ferrari Financial Services (“Macquarie Leasing”), holds a chattel mortgage over the Ferrari. Macquarie Leasing appeared by its solicitor at the commencement of the proceedings. I made orders deferring any issues arising from its interest in the Ferrari until after the determination whether Mr Nguyen would be found (as claimed in his First Cross-Claim) to have legal or beneficial ownership of the Ferrari, subject to matters arising from Macquarie Leasing’s interest in the Ferrari. As events have developed, I would not reach that finding and it will not be necessary to hear Macquarie Leasing further, other than as to any claim for its costs of the proceedings.

Affidavit evidence

4. The Plaintiffs read Mr Clout’s affidavit affirmed 18 February 2025, initialled filed in support of a successful application for interlocutory relief. Mr Clout refers to documents relating to the Company’s purchase of the Ferrari, with finance provided by Macquarie Leasing, and to Macquarie Leasing’s registration of a security on the Ferrari as a Purchase Money Security Interest on the Personal Property Securities Register (“PPSR”) on the date the Ferrari was purchased. He notes that the estimated equity in the Ferrari would be a substantial part of assets realisations in the Company’s liquidation. He refers to correspondence with Mr Nguyen and Scuderia Graziani relating to a potential sale of the Ferrari, which did not proceed when Mr Nguyen asserted his ownership of the Ferrari. Mr Clout also referred to several documents which he considered indicated that the Company was the true owner of the Ferrari, which were exhibited to his affidavit (Ex P1). I will address those documents below.

5. Mr Nguyen relied on his affidavit dated 6 March 2025, parts of which were admitted with a limiting order under s 136 of the Evidence Act 1995 (NSW) (“Evidence Act”) and parts of which were inadmissible and were rejected. Mr Nguyen there referred to “his” purchase of the Ferrari and to his initial approach to Ferrari Brisbane in respect of its purchase of the Ferrari. His evidence was that an Initial Contract recorded him as the customer and that he did not have an ABN number and that he signed that Initial Contract in his personal capacity. The initial invoice issued by Ferrari Brisbane to Mr Nguyen (Ex D1, 549) reflected his then intent that Mr Nguyen personally would purchase the Ferrari. I recognise that Mr Nguyen personally paid an initial deposit of $5,000 on the Ferrari.

6. I accept that Mr Nguyen’s initial intention was likely that he purchase the Ferrari personally, but it plainly then became apparent that he personally did not have the capacity to finance that purchase, and that financing could only be achieved if the Company, rather than Mr Nguyen, purchased the Ferrari.

7. Mr Nguyen’s evidence is that, at the time of purchase, he informed Ferrari Brisbane that he wished to obtain a car loan to finance his purchase of the Ferrari and that he provided financial information to Ferrari Brisbane for that purpose. He refers to subsequent correspondence with an employee of Ferrari Brisbane, who sought financial information as to the Company. Mr Nguyen’s evidence is that, on 23 September 2020, he received a letter from Macquarie Leasing, contemplating a loan agreement with the Company secured by a chattel mortgage over the Ferrari, by which the Company was the borrower and Mr Nguyen was the guarantor, with sixty substantial monthly instalment repayments.

8. Mr Nguyen plainly then accepted an alternative structure for the purchase, by which the Company purchased the Ferrari with a loan from Macquarie Leasing. It seems to me that his objective intention was then to proceed with the transaction by which the Company rather than he personally purchased the Ferrari. That change of position is plain from the contemporaneous documentation.

9. A new vehicle tax invoice dated 24 September 2020 (Ex P1, 99).was then issued by Ferrari Brisbane to the Company, recording delivery of the Ferrari to the Company, and reflecting the changed position that the Company, rather than Mr Nguyen, had purchased the Ferrari. The Certificate of Insurance originally issued for the Ferrari for the period from 24 September 2020 to 24 September 2021 also recorded the Company as the insured (Ex P1, 75). On 25 September 2020, Macquarie Leasing registered a security interest over the Ferrari in the PPSR, identifying the grantor of that interests as the Company (Ex P1, 43).

10. The Chattel Mortgage was sent to the Company under cover of a letter dated 23 September 2020 (Ex D1, 557) from Macquarie Leasing to the Company.

11. The Chattel Mortgage dated 23 September 2020 (Ex D1, 561) was made between Macquarie Leasing as mortgagee, the Company as borrower and Mr Nguyen as guarantor. The “Key Term Summary” recorded that it was an event of default under that agreement if there was a change in ownership or management structure without Macquarie Leasing’s consent, reflect the significance to Macquarie Leasing of the identity of the owner of the Ferrari.

12. The terms and conditions of the Chattel Mortgage recorded, in cl 2.1 that:

“As security to [Macquarie Leasing] for the payment of the Secured Money and the performance by [the Company] of your obligations under this Chattel Mortgage you, as beneficial and legal owner, transfer to us by way of mortgage all your present and future right, title and interest in the [Ferrari]. (Emphasis added)

13. Clause 3.8 recorded that payments must be made to Macquarie Leasing by direct debit authority and the Company subsequently made payments in that manner. Clause 6.1 recorded that:

“You warrant to us that at the time of granting this Chattel Mortgage, you are the legal and beneficial owner of the [Ferrari] free of any Encumbrance.”

14. Plainly, the evidence which Mr Nguyen now seeks to give as to the then intention that he and not the Company owned the Ferrari would falsify that warranty.

15. The Chattel Mortgage also recorded in bold print that, by signing the particulars of the Chattel Mortgage, the Company as borrower:

“Declare[s] you have read and understood the Terms and Conditions of Chattel Mortgage (version 05/2019) and confirm that any [ ] and particulars provided to [Macquarie Leasing] are true, complete and not misleading, and have been made to [Macquarie Leasing] to enable us to assess your commercial finance application.”

16. Immediately beneath that statement, the Chattel Mortgage was executed by Mr Nguyen on behalf of the Company, in accordance with s 127 of the Corporations Act 2001 (Cth) (“Act”), and Mr Nguyen also executed the Chattel Mortgage as guarantor.

17. Mr Nguyen’s evidence (Nguyen 6.3.25 [38]-[39], [41]) is that this approach was taken:

“… because [Macquarie Leasing] required the Company to be listed as the borrower under the Chattel Mortgage.

Namely, for all practical intents and purposes, the rationale behind the Company being the borrower was that this would enable loan approval given the scale of the borrowing amount. From the time of entering into the Initial Contract, it was always my intention to personally own the Ferrari – the Company was never intended to be the true owner of the Ferrari. This intention was at no time the subject of any change or alteration.

… the modification to the structure of the transaction was made in response to the requirements of [Macquarie Leasing], aimed at facilitating a successful settlement for the purchase of the [Ferrari].] In line with this, I signed the Chattel Mortgage on 23 September 2020.””

I return to the difficulty with Mr Nguyen’s evidence as to that matter below.

18. Mr Nguyen acknowledges that, on 24 September 2020, a further deposit for the Ferrari in the amount of $165,010 was debited to the Company’s bank account, although he claims this was a “loan advanced by the Company to its director” (Nguyen 6.3.25 [45]). Mr Nguyen also refers to having signed a direct debit request which authorised Macquarie Leasing to debit the Company’s bank account with the repayments on its loan to the Company, and those repayments were then debited to the Company’s account over a significant period. The Company’s bank accounts record both the payment of the second deposit for the Ferrari on 24 September 2020 and subsequent payments to Macquarie Leasing (Ex P2, 355).

19. Mr Nguyen refers to the Company’s general ledger which records payments in respect of the Ferrari as, variously “David Nguyen – personal transaction – lease Pay” and as “loan – David [Nguyen]” (Ex D1, 584). I recognise that the characterisation of these payments as loans by the Company to Mr Nguyen is consistent with a subjective understanding on Mr Nguyen’s part that he would own the Ferrari if he assumed liability to reimburse the Company for the payments made by the Company on the loan that the Company had taken out to acquire it. I do not accept Mr Nguyen’s characterisation of the assumption of that liability as his having “paid” those loan repayments, where they were paid out of the Company’s bank account and he did not, at least in FY 2021, contribute funds to the Company to fund those repayments. A journal entry in the Company’s Xero accounting system of 30 June 2021 (Ex P2, 503) records that the then loan by the Company to Mr Nguyen of $285,167.96 was purportedly extinguished by a payment of “extra wages of June qtr 2021” to Mr Nguyen in the same amount as that loan.

20. Mr Nguyen in turn addresses payments made by the Company to Macquarie Leasing in FY 2022 and he refers to a deposit of $99,405.26 he made into the Company’s bank account on 4 August 2022, which he contends repaid the amount of those payments. He also refers to further advances made to the Company in FY 2023 and FY 2024 and contends that his personal transactions were offset against those funds. That proposition depends, however, on an assertion that the relevant payments should be attributed to the loans arising from the Company’s payment to Macquarie Leasing rather than to other dealings between the Company and Mr Nguyen, which was not supported by evidence.

21. Mr Nguyen acknowledges that, as I noted above, the Company paid comprehensive motor vehicle insurance during the first year after its purchase of the Ferrari, which he attributes to urgency in respect of the delivery of the Ferrari, and his evidence is that he took out personal insurance with respect to the Ferrari in subsequent years. He also points to the fact that the Ferrari was registered in his name. The documentary evidence confirms that, for the period from 30 September 2021 until 30 September 2022, and likely subsequently, Mr Nguyen personally insured the Ferrari (Ex D1, 656) and Mr Nguyen also personally took out compulsory third party insurance for the period ended 6 September 2021 (Ex D1, 675).

22. Mr Nguyen then returns to the proposition that

“Its inclusion in the Chattel Mortgage purely procedural, serving only to secure the car loan.”

That proposition neglects the importance of the representation made to Macquarie Leasing that the Company was the legal and beneficial owner of the Ferrari in order to procure financing for the Ferrari.

23. Mr Nguyen also relies on a letter dated 17 February 2025 from the Company’s former accountants who advised Mr Nguyen, presumably in response to an inquiry made for the purposes of these proceedings (Ex D1, 622), that:

“Yes in 2021, 2022, 2023 you repaid the loans as per General Ledger reports and other evidence (bank Statement Deposit/email advising of deposit). Yes, in 2021 and 2022 you took extra wages to pay down the loans.

Note all debits lease pay … Transactions were noted as personal transactions.

The 2023 year was when we resigned as [the Company’s] accountants. We had not done any work in Xero for the 2023 year to my knowledge.

I believe that by working through all the attached you can demonstrate that the loan initially created in [the Company] for purchase of the car has been repaid.”

24. I accept that letter expresses the former accountants’ view of these matters, but I give that view little weight in the determination of these proceedings.

25. By a second affidavit dated 19 March 2025 in reply, parts of which were admitted with a limiting order under s 135 of the Evidence Act as Mr Clout’s understanding or as submission, Mr Clout referred to the Company’s accounting records, including accounting records maintained by its accountant using Xero accounting software. He noted that a second and substantial deposit on the purchase of the Ferrari was paid from the Company’s funds and referred to numerous payments made from the Company’s bank accounts in repayment of the loan made by Macquarie Leasing to the Company to purchase the Ferrari. He also addressed evidence of the Company’s payment of insurance over the Ferrari, in the year after it was purchased, and referred to the position in respect of several other motor vehicles owned by the Company.

26. Mr Clout also responded to Mr Nguyen’s evidence that certain payments made by the Company were treated as loans by the Company to him in the Company’s Xero accounting records, although I note below that those entries were made well after the Company’s purchase of the Ferrari. Mr Nguyen also addressed the circumstances in which a loan created by those entries in FY 2021 as purportedly extinguished, by a journal entry, on the basis of a substantial increase in the wages payable to Mr Nguyen that equated to the amount of that loan, rather than by any monetary payment by Mr Nguyen to the Company. Mr Clout again exhibited documents evidencing the Company’s position to his affidavit.

27. Both Mr Clout and Mr Nguyen were cross-examined, but their cross-examinations did not much advance the issues in dispute beyond the position that emerged from the contemporaneous documents.

The parties’ submissions and determination as to “legal” ownership of the Ferrari

28. As I noted above, the Plaintiffs seek a declaration of right as to the Company’s ownership of the Ferrari, and Mr Nguyen seeks the converse declaration. The Court may, of course, make a declaration of right under s 75 of the Supreme Court Act 1970 (NSW) where, inter alia, the making of a declaration has practical utility, and it is plain enough that such a declaration may be made in a case of this kind. I am satisfied that this is a proper case to grant declaratory relief, where there is a real issue of construction in dispute and a declaration will resolve that dispute.

29. I deal first with the question of ownership of the Ferrari and then turn to Mr Nguyen’s alternative claim to hold an equitable interest in the Ferrari. Mr Noakhtar, who appears for the Plaintiffs, refers to the matters necessary to establish “ownership” of the Ferrari by reference to the observations of Jordan CJ in Gatward v Alley (1940) 40 SR NSW 174 at 178 that:

A good title to property, in the sense of such ownership as the law allows, consists in having the legal right to exercise with respect to it all such rights, as against all such persons, as by law are capable of being exercised with respect to property of the class in question. A person who has possession of property but not ownership has, as a general rule, the same legal rights as the owner, save to the extent to which those rights are qualified as against the owner.

30. Mr Noakhtar then refers to subsequent decisions which have addressed issues of a similar kind to those which arise in this case. He points to Re Maiden Civil (P&E) Pty Ltd; Albarran v Queensland Excavation Services Pty Ltd (2013) 277 FLR 337; [2013] NSWSC 852, where Brereton J, inter alia, determined the ownership of Caterpillars excavators by reference to matters including which entity made deposit and financing payments, insured the excavators and the relevant invoicing arrangements, and noted (at [16]) the significance of obligations owed to the financier under financing arrangements.

31. Mr Noakhtar also refers to Linfox Australia Pty Ltd v Transport Accident Commission (2016) 78 MVR 177; [2016] VSC 592, where Keogh J held that the plaintiff’s payment of vehicle registration, maintenance and insurance costs, on which Mr Nguyen relies here, was neutral as to the question of ownership of a vehicle, at least without further evidence as to the relationship between companies in the Linfox Group in that case.

32. In Ormsby (Liquidator), Rezatechnica Pty Ltd (In Liq*) v Michails* [2023] FCA 972 at [60]-[61], Charlesworth J observed that:

“… the phrase “legal and beneficial owner” is language that is apt to describe forms of ownership under the general law. In the present case, the Liquidators have powers and duties with respect to things that meet the description of the Company’s “property”. The factual and legal circumstances in which a thing may meet that description are not necessarily the same as that arising under the general law.

The Liquidators should be heard on the question of whether the declarations should instead be expressed in terms that recognise that each of the vehicles are the property of the Company within the meaning and for the purposes of the Corporations Act. To my mind, and without expressing a concluded view, declarations in those alternate terms would more appropriately reflect the interests of the Liquidators in performing their duties and functions.”

I will here determine the question of ownership of the Ferrari by reference to the potentially more demanding standard at general law.

33. Mr Noakhtar also refers to Highfields Australia Pty Ltd v Advanced Motor Dealers Group Pty Ltd (recs and m**grs apptd) [2023] NSWSC 1458 (“Highfields”), where Richmond J determined the ownership of four luxury motor vehicles, with reference to the evidence of refinancing, invoices, payments and the terms of security documents, as well as relevant financial records. His Honour there recognised (at [131]) the commercial reality that an entity would typically seek to own a vehicle on which it took out finance, to assist in repayment of that finance:

“It only made sense for [the borrowing company] to take on the liability to the financier if it had ownership of the Vehicles because in the event that [the using entity] ceased to pay the monthly instalments to the financier, it could expect the financier to seek to recover those amounts from Highfields and the shareholders …”

Similarly, here, notwithstanding the accounting treatment of repayments made by the Company to Macquarie Leasing as “loans” to Mr Nguyen, and the payment made by Mr Nguyen in FY 2022 (but not FY 2021), the Company would likely need to realise its equity in the Ferrari, depending on ownership of the Ferrari, in order to repay any balance due to Macquarie Leasing on default or on the expiry of the loan.

34. Richmond J also there considered (at [138]) the relevance of motor vehicle registration, on which Mr Nguyen here relies, albeit in combination with other matters. His Honour there observed that registration of the vehicles in one party’s name had no bearing on ownership, there referring to s 64(2) of the Road Transport Act 2013 (NSW) and Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2003) 45 ACSR 711; [2003] NSWCA 163 at [15]. The same result follows under reg 19 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2021 (Qld), applicable here, which permits any person, and not only the owner of a vehicle, to apply to register a vehicle under so that registration of a vehicle is not linked with its ownership. That matter has been recognised in earlier case law as to predecessor provisions, for example Robinson v Ware [2012] QCA 70 at [50].

35. In Highfields, Richards J also observed (at [140]), in respect of the treatment of the transaction in relevant financial records, that:

“It is true that the financial statements of AMDG are books and records and therefore prima facie evidence of any matter stated or recorded therein: s 1305(1) of the [Act]. However, while the books are prima facie evidence of the matters stated in them, the weight of that evidence is to be measured in accordance with the common sense of the Tribunal of fact and also in light of all the other evidence: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 at [394]–[400].”

36. The first instance judgment in Highfields was upheld on appeal under the name Touma v Highfields Australia Pty Ltd [2024] NSWCA 160, where Basten AJA (with whom White and Adamson JJA agreed) noted (at [19]) that his Honour had appropriately placed weight on the documentary records of the sales and financing arrangements, observing that:

“The second category of evidence, chronologically, comprised the documentary records of the sales and financing arrangements. As those were the operative documents which gave effect to the agreements, the judge placed significant weight on them, and appropriately so. Mr Touma having eschewed any suggestion that they were shams, that documentation was entitled to dispositive weight.”

Mr Nguyen also did not go so far, here, as to suggest that the documentation as to the purchase of the Ferrari as between the Company and Ferrari Brisbane and Macquarie Leasing was a sham, or not intended to have legal effect, although he did seek to resile from the position recorded in it. There is no suggestion that the third parties to those arrangements did not intend them to have legal effect in accordance with their terms.

37. Basten AJA also noted (at [25]) the significance of the relevant finance arrangements, and that:

“… it might have been thought uncommercial for [the borrowing company], first, to represent to a financier that it owned the vehicle when it did not and, further, to do so in circumstances where if [the user entity] defaulted, it had no interest in the vehicle.”

38. Basten AJA also there observed (at [49]) that:

“The refinancing transaction documents were persuasive: indeed, if Highfields did not have sufficient proprietary interest to mortgage the chattels in accordance with the agreements (which included an acknowledgement that the chattels were not subject to any prior security interest) Highfields would have been involved in a fraud on the financiers.”

39. Similarly, here, in order to accept Mr Nguyen’s evidence that he intended to personally own the Ferrari and that the Company was “never intended to be the true owner” of the Ferrari, I would have to find that the representations that he procured the Company to make to Macquarie Leasing were false, and likely knowingly false, in circumstances that they were clear and unequivocal statements which Mr Nguyen could not have failed to understand. I would not readily make that finding, having regard to the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and s 140 of the Evidence Act, notwithstanding that the structure of Mr Nguyen’s case here depends on my accepting a submission that implies that finding.

40. Mr Noakhtar points to several matters which, he submits, support a finding that the Company rather than Mr Nguyen owns the Ferrari, namely that:

“It is clear on the face of the purchase and financing records that the Company purchased the Ferrari. It was purchased with funds withdrawn from the Company’s bank account and subject to the Company’s granting a registrable security. [Mr Nguyen] signed [Macquarie Leasing’s] direct debt authority in relation to instalment payments which were to be made. The [C]ompany’s bank statements are in evidence and show those monthly payments being made. [Mr Nguyen] accepts most of this, but relies on other dealings between him and the Company.”

41. Mr Noakhtar also submits that:

“By contrast, [Mr Nguyen] deposes to his subjective beliefs and intentions about the Ferrari. Features of his evidence are “neutral as to the question of ownership”. Issues relating to registration and maintenance of the [Ferrari] go no further than his being the user of the Ferrari. …”

42. Mr Wang, who appears for Mr Nguyen, responds that Mr Nguyen was the “legal” owner of the Ferrari. Mr Wang relies, in support of the proposition that Mr Nguyen is the owner of the Ferrari, on the descriptions of the payments made by the Company to Macquarie Leasing in the Company’s Xero account, both in respect of the second deposit payment and subsequent loan repayments and contends that Mr Nguyen personally contributed $676,529.43, presumably by assuming liability for the repayments on the Ferrari, which was subsequently extinguished by journal entry in FY 21 and the payment in FY 22 to which I referred above. Mr Wang also submits that the Company’s financial statements reflect a different accounting treatment of the Ferrari from other vehicles by the Company. I give little weight to that submission, where the evidence as to the treatment of other vehicles owned by the Company is inconsistent and some of those vehicles were also used for personal use.

43. Mr Wang also submits, and I accept, that the Ferrari was used for Mr Nguyen’s private purposes and not for business purposes, as is reflected in the information provided to the insurers; was stored at Mr Nguyen’s private residence; that the costs and maintenance of the Ferrari were paid by Mr Nguyen in his personal capacity; and that the Ferrari was registered in Mr Nguyen’s personal name. These matters do not assist Mr Nguyen. His private use of the Ferrari and payment of some expenses referable to that private use was not inconsistent with the Company’s ownership of the Ferrari, and I have pointed to the lack of significance of its registration above. Mr Wang also refers to insurance arrangements for the Ferrari, relying on Mr Nguyen’s evidence that the initial insurance of the Ferrari in the Company’s name was an administrative error, and pointing to the fact that the Ferrari was subsequently registered in Mr Nguyen’s name. Again, that matter is equivocal, where a user of a vehicle may insure it without being its owner.

44. In summary, Mr Wang submits that:

“While the Liquidator relies on the invoice, chattel mortgage, and PPSR registration naming the Company, these documents do not conclusively establish ownership. To the contrary, multiple elements support Mr Nguyen holding legal title, including:

a. the [Ferrari] being registered to his personal name with Queensland TMR;

b. the Initial Contract being executed by his personal name;

c. the CTP insurance being issued in his personal name;

d. from September 2021 onward, motor insurance being issued in his personal name.”

45. I accept that the matters on which the liquidator relies do not “conclusively” establish ownership; however, it seems to me that those matters, combined with the representations made by the Company, in a document executed by Mr Nguyen, to Macquarie Leasing that it was the legal and equitable owner, have significantly greater weight than the matters on which Mr Nguyen relies. The initial contract reflects a position from which Mr Nguyen departed when he was unable to finance the Ferrari in his own name, and the remaining matters are largely consistent with his use rather than with ownership of the Ferrari. I have also had regard to the description of the loan repayments in the Company’s Xero financial records, but these seems to me to reflect a misunderstanding or mischaracterisation of the true position arising at the point of purchase of the Ferrari, or possibly Mr Nguyen’s erroneous perception that his intent to own the Ferrari could prevail over the reality of how it was purchased. In oral submissions, Mr Wang also emphasised the fact that the Company did not claim a tax deduction or depreciation for the Ferrari as inconsistent with its ownership of the Ferrari. I give little weight to that matter, where such a claim would likely not have been available where it is plain enough that the Ferrari was not used for the Company’s business purposes, whoever owned it, but for Mr Nguyen’s private purposes.

46. Subject to Mr Nguyen’s claim to an equitable interest in the Ferrari, I therefore accept the Plaintiffs’ submission that the Company owns the Ferrari and reject Mr Nguyen’s submission that he has “legal” ownership of it.

The parties’ submissions and determination as to objective intention and equitable ownership of the Ferrari

47. I now turn to Mr Wang’s submissions as to “objective intention” and as to the proposition that the Company holds the Ferrari on resulting trust or constructive trust for Mr Nguyen.

48. Mr Wang submits that, where the objective evidence of the parties’ intention is clear, the Court must give effect to that intention and that:

“The objective facts and conduct of the parties demonstrate that Mr Nguyen was, at all relevant times, the true beneficial owner of the [Ferrari].”

49. In support of this proposition, Mr Wang submits that:

“Where the evidence clearly demonstrates that the objective intention of the parties was for Mr Nguyen to hold the beneficial interest, Courts will give effect to that intention.

In Bosanac v Commissioner of Taxation [(2022) 275 CLR 37; [2022] HCA 34], the High Court of Australia considered the application of resulting trusts in the context of a property ownership dispute between spouses. The Court held (at [13]):

“The presumption [of resulting trust] cannot prevail over the actual intention of the party paying the purchase price as established by the overall evidence.” (My emphasis)

As such, the presumption of a resulting trust (the Second Ground) yields to clear evidence of Mr Nguyen’s actual intention and is only engaged where those intentions are equivocal.”

50. In support of this proposition, he submits that Mr Nguyen paid the purchase price for the Ferrari. I do not accept that submission, where the evidence establishes only that Mr Nguyen paid an initial deposit of $5000, before he accepted the change in structure which was necessary to finance the purchase, by which the Company, rather than Mr Nguyen, purchased the Ferrari. For the reasons set out above, I also do not accept that the characterisation of repayments made by the Company to Macquarie Leasing from its bank account as loans to Mr Nguyen, introduced several months after the purchase of the Ferrari, establishes an objective intention on the part of the Company (or Mr Nguyen) that he rather than the Company would own the Ferrari. That position would be inconsistent with the change of structure that was necessary to acquire the Ferrari and contrary to the representations made to Macquarie Leasing that the Company was the legal and equitable owner of the Ferrari, which I have addressed above.

51. It also does not appear to me that Mr Wang’s submissions as to “objective intention” can here advance Mr Nguyen’s position, other than in respect of his claim (which I have rejected) to be the “legal owner” of the Ferrari on the one hand, or possibly that the Ferrari is held on trust for him on the other. Had I accepted these submissions, I would have found either that Mr Nguyen and not the Company was the legal owner of the Ferrari, or alternatively that a trust was established on one or other of the bases for which Mr Nguyen contends. This contention does not support any different basis for a claim for ownership of the Ferrari.

52. Mr Wang alternatively submits that, if the Court considers the objective evidence is equivocal as to whether Mr Nguyen owned the Ferrari, a presumption of resulting trust arises in favour of Mr Nguyen and is not rebutted and there is no evidence that Mr Nguyen intended the Ferrari to be a gift to the Company. He here submits that:

“Where intent is found to be equivocal, a presumption of resulting trust arises in favour of Mr Nguyen’s beneficial ownership in the manner prescribed by the High Court in Calverley v Green [(1984) 155 CLR 242; [1984] HCA 81]. The Court held …:

Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser.

However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. [emphasis added by Mr Wang]

In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. …”

As such, the law will presume a resulting trust in favour of Mr Nguyen in circumstances where:

a. the property is held in the name of a party other than the purchaser;

b. the provider of the funds did not intend to make a gift or advancement; and

c. there is no relationship giving rise to a presumption of advancement.”

53. The principles relating to the circumstances in which a resulting trust should be imposed were also helpfully summarised by Vickery J in Ying Mui Pty Ltd v Hoh (No 3) (2017) 119 ACSR 577; [2017] VSC 29 (“Ying Mui”) at [337]ff, where his Honour referred to Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 and Lam v Lam [2016] VSC 298 at [20] and observed that:

“It is accepted that in certain circumstances (most often but not exclusively confined to the acquisition of property arising in the course of a personal relationship), equity presumes, absent a presumption of advancement, that the registered proprietor intends that the person who provides the purchase money for the acquisition of the property will own the property beneficially to the extent of the beneficial interest corresponding to the proportion of purchase money supplied. [footnotes omitted]”

54. His Honour also there noted that it is well established that, for a resulting trust to arise, the purchase money must have been provided by the purchaser with the character of purchase money and not as a loan, and referred to Ong v Lottwo Pty Ltd (in liq*)* (2013) 116 SASR 280; [2013] SASCFC 57 as authority that a resulting trust will not arise where monies are provided by way of loan or on some other commercial basis. His Honour also observed that any presumption of a resulting trust arising from a contribution of purchase monies can be rebutted or qualified by evidence of a contrary intention.

55. The first difficulty with Mr Nguyen’s resulting trust claim is that its factual basis is not established. Mr Nguyen did not purchase property in the name of the Company, but the Company did so with its own and Macquarie Leasing’s funds, after it became apparent that Mr Wang could not finance the purchase for himself. He also did not contribute funds in FY 2021, when the payments characterised as a loan were then extinguished by a journal entry, although he appears to have made a payment in FY 2022. The question whether a resulting trust could be established where the purchase money is provided by way of loan does not arise here, because Mr Nguyen did not lend the purchase price to the Company; to the contrary, the payments from the Company’s own funds were later recorded as giving rise to a loan to him. Second, an order imposing a resulting trust is an equitable remedy and the Court has a discretion whether to order that remedy, so as to achieve what the Court considers to be “practically just” according to the circumstances of the particular case, although that discretion is to be exercised judicially: Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 at 111–114; Bridgewater v Leahy (1998) 194 CLR 457 at 473, 493–4; Wilkins v Wilkins [2007] VSC 100 at [91]; Re RMATA Cutelli Pty Ltd (in liq*)* [2018] NSWSC 382 at [18]. The Court should not here exercise a discretion to impose such a trust in favour of Mr Nguyen where that remedy would falsify the representations previously made by the Company, and authorised by Mr Nguyen, to Macquarie Leasing that the Company was both the legal and equitable owner of the Ferrari.

56. In the further alternative, Mr Wang contends that the Company held legal title to the Ferrari on constructive trust for Mr Nguyen. He submits that.

“Should the Court find no presumption [of resulting trust] to arise in Mr Nguyen’s favour, [Mr Nguyen] submits that the [Ferrari] was nonetheless held by the Company on constructive trust for Mr Nguyen.

The leading authority for constructive trusts is Muschinski v Dodds [(1985) 160 CLR 583; [1985] HCA 78]. In that case, the High Court held (at 614):

“Viewed in its modern context, the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.”

In short, equity will not permit the assertion or retention of legal rights to property where such assertion would be unconscionable in the circumstances.”

57. This claim can be addressed briefly. The Court would also not impose a constructive trust for the benefit of Mr Nguyen, where that would also be inconsistent with the representations made by the Company, as authorised by Mr Nguyen, that it was not the legal and equitable owner of the Ferrari, and would itself promote an unconscionable result at the expense of the Company, its creditors and Macquarie Leasing.

58. For these reasons, the Plaintiffs have established that the Company is the owner of the Ferrari and Mr Nguyen has not established the converse, either in law or in equity.

Direction under IPSC s 90-15

59. For completeness, Mr Noakhtar also addresses the circumstances in which the Court may give directions under s 90-15 of the IPSC. It is not necessary to address those principles here, where this is a proper case to make a declaration of right to determine the competing claims of the Company and Mr Nguyen over the Ferrari.

Orders

60. I have previously reserved the question of costs of Macquarie Leasing in respect of the proceedings, and it will be matter for Macquarie Leasing whether it seeks to relist the matter in order to seek an order for the costs of its involvement in the proceedings, if that matter cannot be resolved by agreement between the parties.

61. For these reasons, I make the following orders:

62. Declare that the 2020 Ferrari F8 Tributo (VIN ZFF92LMD000256895), the subject of these proceedings, is an asset of Tactoys Pty Ltd (in liquidation).

63. The First Cross-Claim Cross-Summons filed by the First Defendant be dismissed.

64. The First Defendant pay the Plaintiffs’ costs of the proceedings as agreed or as assessed.

65. Reserve the Third Defendants’ costs of the proceedings and reserve liberty to apply on two business days’ notice as those costs and the interlocutory relief previously granted in the proceedings.

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Amendments

17 April 2025

Amend Order 4 on last page to refer to Third Defendant's costs.