Sweeney v He

The parties

1. The plaintiff, Michael, is 58 years old. For many years he was self-employed and ran his own IT consultancy company, Zang Technologies. He holds a university degree in computer science. In 2015 he underwent a liver transplant that rendered him unable to work. Further health complications emerged in the form of a bowel condition and sleep apnoea. He receives an income in the form of a disability support pension in addition to repairing and selling second-hand vehicles.
2. The first defendant, Ying, is 53 years old and was employed in aged care at the time the proceedings were heard in this Court. She is a citizen of the People's Republic of China and has resided in Australia since 2005 when she obtained permanent residency pursuant to the grant of a partner visa that was sponsored by Michael. Ying is not a native English speaker and gave evidence with some assistance from a Mandarin interpreter.
3. The second defendant, Kevin, is 28 years old. He is Ying's son from a previous relationship. Kevin came to Australia with his mother in 2005. He holds a PhD in Statistics. At the time these proceedings were heard, he was an honorary research associate at the University of Sydney and worked as a clinical bioinformatics scientist.
4. Each of the parties gave oral evidence as to their version of events. No other witnesses were called. The Court received some measure of circumstantial evidence to assist in sifting through the competing accounts of the parties. There were no other witnesses as to the primary facts.

Facts

1. There were three main areas of factual dispute: 1. The circumstances under which the Property was purchased and any agreement between the parties at that time; 2. Whether the regular payments from Ying to Kevin were for the purpose of rent or repayment of the mortgage; and 3. The extent of any alleged improvements to the Property by Michael.
2. It was uncontroversial that Michael and Ying met in China. They married in March 2003 before Ying and Kevin immigrated to Australia in 2005. The couple moved between several rental properties in Australia, relocating approximately every two or three years.
3. In mid to late 2013, Michael and Ying looked at several properties in Nowra with a view to Kevin purchasing one of them in his name. A pre-inspection report for a house at Park Road, Nowra dated 19 July 2013 was admitted as evidence of this. The report listed Michael as the client and Kevin as the intended purchaser of that property.
4. On 9 September 2013, Kevin obtained a home loan from Suncorp for $248,977.35. On that same day, the loan was used to purchase the Property for $272,000. Settlement occurred on 31 October 2013. Only Kevin's name appeared on the loan documents and the contract for sale.
5. Solicitors at R.F. Bergagnin & Co were retained to assist in the transfer. Michael and Kevin agreed that Michael had arranged for R.F. Bergagnin & Co to assist in the transfer as they were former clients of Michael. An invoice for solicitors' fees of $2,463.33 from R.F. Bergagnin & Co dated 31 October 2013 was addressed to Kevin. It was disputed whether Michael or Kevin paid the invoice.
6. Suncorp bank account statements in Kevin's name showed that the mortgage was initially paid at a rate of $1,271.84 per month.
7. In December 2013, Michael and Ying moved into the Property. There was no written tenancy agreement at that time.
8. Two tenancy agreements were tendered as evidence, each dated 1 April 2016. Both documents stated that Kevin was the landlord and Michael and Ying were tenants. The signatures of all three parties, witnessed by a person named "R. Zinke", appeared on the documents. As discussed below at [61], Michael contested the authenticity of these documents.
9. ANZ bank statements for Ying showed regular transfers of $700 every fortnight between 2014 to 2017 to Kevin's Suncorp account from which the mortgage was repaid.
10. Around October 2016, Kevin's Suncorp bank statements began to show an increase in the mortgage repayments to $1,771 per month.
11. In mid-2017, after Michael had vacated the Property and Ying became the sole occupant, the payments from Ying to Kevin began to increase, varying in amount from $1,000 up to $2,000 per transfer.
12. An aide-memoire was tendered which purported to show the total amounts of money transferred by Ying to Kevin from October 2017 until August 2020. Counsel for Michael agreed that the document was simply a summary of payments according to what was recorded in bank statements provided by Ying. The aide-memoire showed that, in the period since Ying returned to the Property in 2017, she had transferred a total of $88,800 to Kevin of which $70,000 was allegedly for rent. The remaining payments totalled $18,800.
13. The Court finds in accordance with [18] to [23] and [25] to [27] above.
14. As to the improvements made on the Property referred to at [17(3)] above, these purportedly were: 1. A concrete slab for $4,000 evidenced by an invoice from Gordon's Concreting dated 5 October 2013 that was issued to Michael. No documentary evidence of payment was provided. 2. A shed that was erected on the concrete slab referred to in the previous sub-paragraph for $3,455. An invoice from Best Sheds Pty Ltd dated 17 September 2013 was issued to Michael and a bank account statement from Zang Technologies showed a corresponding payment on 30 September 2013. 3. Curtains purchased for $521.63. An invoice from Oslo Drapery Hardware dated 1 October 2014 was addressed to Michael. The handwritten words "Cash 1-10-2014" appeared on the page, presumably to indicate the alleged mode of payment. 4. More curtains purchased for $449.95. An invoice from Oslo Drapery Hardware dated 3 October 2014 was addressed to Michael and a corresponding payment dated 4 October 2014 appeared on Zang Technologies' bank statement. 5. An electrical box frame to support an inverter and battery pack. An invoice dated 5 March 2013 for $1,300 was issued to Michael. No documentary evidence of payment was provided. 6. An inverter charger for $1,300. A record of this was provided in the form of an eBay purchase confirmation addressed to Michael which stated the goods had been paid for on 21 April 2013. No documentary evidence of the source of these funds was provided. 7. A diesel generator for $2,982 evidenced in an invoice to Michael dated 10 November 2015 and, according to an ANZ bank statement for Zang Technologies, paid on the same day. 8. An off-grid switch system for $470 that was paid for via Zang Technologies using PayPal on 7 November 2015. 9. Deep-cycle batteries used in the off-grid power unit for $5,500. A receipt for that amount was issued to Zang Technologies. 10. Floating floorboards that were installed in April 2016 with Ying. No evidence of this was provided and it is unknown how much it was alleged to have cost. 11. Two remote controlled ceiling fans for $250 that were installed in August 2016. 12. A water tank for $790. An invoice from Bunnings South Nowra listed Michael as the customer in the transaction. A payment to South Nowra Bunnings for that amount on 6 November 2016 was paid from Kevin's Suncorp bank account. 13. New guttering that was installed for $6,584.19. A deposit receipt signed by a Mr Chris Hill and Kevin on 16 January 2017 attested that Kevin had paid a $2,000 deposit for the installation of the guttering and water tank. Two cash receipts issued to Mick and Leah (being Michael and Ying, respectively) were provided. The first receipt was dated 13 January 2017 for $2,000 in relation to "Roof material". The second receipt was dated 20 January 2017 for $4,584.19 in relation to "The remainder of roof and gutter repair and water tank installation". An invoice for services related to the installation of the water tank and guttering was signed by Michael on 20 January 2017.
15. Michael also claimed to have assisted in making improvements to the Property, including: 1. Installation of an oven and cooktop in the kitchen; 2. Installation of an air conditioning unit in the master bedroom that was purchased for $1,500; 3. Toilet and en suite renovations, including installation of new vanities.
16. The source of the payments made for improvements, and the extent of Michael's involvement, was heavily disputed.

Michael's evidence

1. It was critical to Michael's case for the Court to be satisfied that Michael and Ying were intended to be the true owners of the Property with Kevin's interest being in name only.
2. There were a number of discrepancies in the evidence provided by Michael in these proceedings, especially when compared to evidence he provided in earlier proceedings at the Local Court. Some of the inconsistencies were minor, such as listing the purchase price for the Property as $248,000 as opposed to $272,000. Others were more significant, particularly evidence that he had paid $100 per week towards the mortgage, a fact he now conceded was untrue and misleading. For this he laid blame at the feet of his lawyer in the Local Court proceedings, stating that he had only done so on the solicitor's advice. I do not accept that evidence because it is inherently unlikely.
3. Where documentary evidence did not support his version of events, Michael claimed the documents were either inaccurate or fraudulent without any objective material to support his claim.
4. Other assertions made by Michael lacked plausibility to the extent that the Court had difficulty accepting his version of events as put by him. For example, his evidence in respect of the words used by Ying in conversation relating to the alleged agreement between the parties, and the failure by solicitors at R.F. Bergagnin & Co to advise him to put any such agreement in writing.
5. For the reasons set out in [34] to [36] above, I do not accept Michael was a reliable witness and do not accept his evidence on any contentious matter unless it is against interest, corroborated by contemporaneous records or is inherently likely.

Purchase of the Property

1. Michael alleged that a conversation took place between himself and Ying outside Best & Less in Liverpool, NSW sometime around June 2013. A female friend of Ying, whose name Michael could not recall and who was not called to give evidence, was also said to be present. During that conversation, Michael claimed these words were said: "MS: Was it difficult for you to get a loan from the bank? How did you do that? Friend: I had enough money in the bank for collateral for a deposit. YH: We can do the same. I can get some money from my parents and my friends and we can put it in my son's bank account. YH: We should get the loan in my son's name. YH: You cannot get the loan because of your illness and possibly your age. We are already paying rent now. It will be the same as paying the mortgage, only there will be no rent increase and we will own our own property for our future."
2. In June 2013, this exchange allegedly took place between Ying and Michael: "YH: [Michael] you have liver problems and you don't have a will, if it were in our joint names, then there is a possibility that I would be saddled with transfer costs and legal fees if you had died before I died. YH: My dad has some money. He said he can help me buy a house as a gift for our future. MS: Alright, I will put in $10,000 as a deposit and you can put in $20,000. YH: How about we put Kevin's name for the mortgage as you may not be able to get a loan because of your illness and age. MS: He has no money, how would he do that? YH: His borrowing power is better than yours, right? He receives some money from your business. He can get the loan because he has no other problems or liabilities."
3. Sometime in July 2013, Michael then allegedly had a conversation with Ying and Kevin: "MS: Kevin, your mother and I would own the property but put it in your name. KW: I can't afford the mortgage. YH: Mick will help with all the things to do to buy it. YH: Mick, I will pay the mortgage, it is about $360 per week. We are paying $360 rent where we are now so it is the same, and you can buy the food, pay for the electricity, mobile phones and make improvements and maintenance to the property. Only his name will show on the mortgage document."
4. Michael maintained that the intention between the three protagonists was that Ying and he would each have a 50% share in the Property that was to be held on trust by Kevin.
5. It was Michael's assertion that he and Ying identified the Property as one of several they had inspected together. In support of this, he provided a copy of the pre-purchase inspection notice dated 19 July 2013 (referred to at [19] above) for a separate property at Park Road, Nowra which named him as the client. Kevin as the purchaser.
6. The parties then met with lawyers at R.F. Bergagnin & Co. Solicitors Michael Bergagnin and Rudy Bergagnin were both present at that meeting. The latter has since passed away and the former did not give evidence in these proceedings.
7. At the meeting with R.F. Bergagnin & Co, Kevin signed the contract for sale of the Property. Michael also claimed that the following exchange took place between himself and Michael Bergagnin: "MS: … [T]he contract will be going into Kevin's name but we will be living in it. MB: So this property will be held in Trust for you guys. Yes?"
8. No contemporaneous documents were provided to corroborate that exchange (for example, file notes). Michael claimed under cross-examination that he was never advised by either solicitor to record the agreement in writing. In the absence of any independent corroboration, and for reasons set out in [34] to [36] above, the Court is not satisfied that such an exchange ever occurred.
9. There were three relevant contributions to the purchase monies that Michael claimed to have made: 1. $10,000 as part of the deposit; 2. $8,020 as payment for stamp duty; 3. $2,463 in solicitors' fees for the transfer.
10. Michael also alleged that he had assisted Kevin in obtaining the loan from Suncorp by contracting him to Zang Technologies for which Kevin received a cash income of $2,000 per month. No objective evidence was provided to show that Kevin was ever employed by Zang Technologies and Kevin denied it.
11. Michael claimed to have paid the monies towards the deposit referred to at [46(1)] above by way a combination of $8,000 from his company bank account and $2,000.00 in cash. An ANZ bank account statement for Zang Technologies showed a withdrawal of $8,000 on 10 July 2013.
12. The defendants denied that Michael paid any money towards the deposit. During cross-examination, Ms Boettcher noted that the bank statement did not disclose to whom the $8,000 had been given. Michael responded: "There's something wrong with this statement" (Tcpt, 25 November 2021, p 43(35)).
13. In relation to the stamp duty payment at [46(2)] above, an ANZ bank account statement for Zang Technologies showed a withdrawal for exactly $8,020 on 1 October 2013. There was no reason stated or other documentation to confirm the purpose of that withdrawal, however Michael attested that it was used to draw a bank cheque for the Office of State Revenue. Kevin's Westpac account showed that he had paid $10 for the purchase of a cheque around this time.
14. An email sent to Michael on 27 September 2013 by R.F. Bergagnin & Co instructed that stamp duty of $8,020 was to be paid by cheque to the Office of State Revenue. The email noted that this was to be paid by Kevin.
15. As evidence that he paid for the solicitors' fees referred to at [46(3)] above, Michael tendered an ANZ receipt showing a transfer of $2,000 from Zang Technologies to the general account of R.F. Bergagnin & Co on 3 November 2013. Michael said he paid the remainder of the solicitors' fees ($463) in cash.
16. Bank statements showed an earlier deposit of $10,000.00 was received into Zang Technologies' account on 19 September 2013. That money was deposited by Kevin and was, according to the defendants, used to pay for both stamp duty and solicitors' fees. In the defendants' submission, Michael was merely a conduit for the moneys which actually came from Kevin.
17. When he was asked about this during cross-examination, Michael agreed that Kevin had transferred this money to him for stamp duty, but was adamant that the money was originally transferred by him to Kevin and Kevin had effectively returned that money to Michael. No documentary evidence was provided to substantiate Michael's assertion. A Westpac bank statement for Kevin did show a deposit of $10,000 into Kevin's account on 18 September that was transferred out on the same day. There was no evidence where the $10,000 deposited into Kevin's account came from.
18. When asked why he would have moved money around in this manner, Michael stated that he had done so at Ying's suggestion for the purpose of making it appear as if Kevin had more funds at his disposal. This, he alleged, would assist in securing the loan from Suncorp to purchase the Property. He was challenged on this point because, as it was advanced by Ying, Michael controlled all of her finances during the relationship. He conceded that he did all of the shopping but denied an allegation that he held all of the couple's bank cards or controlled Ying's bank accounts.
19. Michael also claimed to have paid for all of the couple's Internet, mobile phone, electricity and water utilities as part of the arrangement. While this was commensurate with a tenancy arrangement, Michael asserted that he was also responsible for paying infrastructure costs associated with water usage at the Property.

Rent/mortgage repayments

1. Michael denied that he and Ying were tenants in the Property or that they paid rent. ANZ bank statements belonging to Ying showed that payments of $700 were made to Kevin from Ying's account on a fortnightly basis. Michael argued that those payments were not for the purpose of rent but were actually mortgage repayments.
2. In support of this proposition, Michael pointed to the fact that Ying ceased claiming rental assistance from Centrelink shortly before the couple moved into the Property, however she may have received rental assistance sometime in 2016 (which coincided with the formal tenancy agreements referred to at [24] above).
3. Ying's bank records showed that the transfers to Kevin closely corresponded with the carers' pension Ying received from Centrelink. The Centrelink payments often arrived a few days in advance of the $700 transfer and were for a similar amount. It followed, Michael contended, that the payments were comprised wholly of the carer's pension.
4. Michael sought to claim some interest in those payments on the basis that the carers' pension was ostensibly for his benefit. It was put to him that it was actually paid for Ying's benefit as she was his carer.
5. Two residential tenancy agreements both dated 1 April 2016 were tendered as evidence (referred to at [24] above). These documents listed Michael and Ying as tenants and Kevin as landlord. It was alleged by Michael that the documents were a forgery as he had no memory of them and had certainly never signed them. No expert evidence was provided to substantiate Michael's claim on this point. Nor were the originals of the tenancy agreements able to be located. In the absence of any reliable evidence, the Court rejects Michael's assertion that the tenancy agreements were fraudulent, especially in light of the acceptance of the documents' validity by NCAT.
6. An application form to the NSW Civil and Administrative Tribunal (NCAT) that was lodged by Michael was also tendered as evidence by the defendants. On the form, Michael had described himself as a tenant. Michael claimed he had only done so because Kevin had previously lodged NCAT proceedings and so Michael was "only addressing what [Kevin] started" (Tcpt, 25 November 2021, p 62(44)).
7. Michael conceded that he had never paid any council rates for the Property during his tenure.

Improvements to the Property

1. Michael claimed to have paid for various improvements to the Property, including the laying of a concrete slab for $5,000 and the construction of a shed on the slab for $3,400. It was put to Michael that, again, the money for these payments originated from Kevin.
2. Copies of statements from a Westpac Choice Student account in Kevin's name showed a payment of $5,000 to Michael in addition to three cash withdrawals in two lots of $1,000 and one lot of $1,400 (totalling $3,400 exactly). Michael denied ever receiving these funds and claimed to have paid for the concrete slab from the proceeds of the sale of a Nissan ute on Gumtree. A PPSR certificate dated 6 October 2013 showed that, at that time, Michael had been the registered owner of such a vehicle. The words "Sold for $6100" were handwritten on the certificate, but no other evidence of the sale (or the use of the proceeds to pay for the concrete slab) was provided. Zang Technologies' bank statements from that period do not record any corresponding deposit in the amount of $6,100.
3. Other improvements that Michael claimed to have paid for were the installation of a water tank and guttering that he said he had financed through the sale of a Subaru Outback and spare parts on Gumtree. Michael conceded that Kevin had contributed $2,000 for this but he claimed it was done as a gift for Ying and that Michael had been required to pay the remaining costs. A word document, which evidence showed was created on 7 January 2017, that purported to constitute a Gumtree advertisement for the sale of spare parts for $4900 was submitted as evidence.
4. He claimed to have undertaken installation of a new oven and cooktop in the kitchen (but accepted that these were paid for by Kevin).
5. He also attested to purchasing and installing: 1. New curtain hardware for which curtains were made by Ying; 2. Floating floorboards (which appeared to have been a joint project with Ying); 3. A reverse-cycle air conditioner, although it had originally been installed at the couple's previous residence and relocated with them; 4. The off-grid power system and its attendant components including an inverter, diesel generator, switch system and deep cycle battery; 5. Two remote controlled ceiling fans; 6. New en suite and toilet vanities.
6. It became apparent throughout the proceeding that many of the improvements for which Michael had initially held himself out as being responsible for had also involved Ying, Kevin or other members of the defendants' extended family.

Ying's evidence

1. Ying gave her evidence partly in English and partly with the assistance of a Mandarin interpreter. This was done pursuant to the requirement that proceedings are generally to be conducted in English unless the Court is satisfied that the witness' English is insufficient to enable them to understand what is put to them and make adequate reply, in which case an interpreter may be used (see: rr 31.57 and 31.58 of the Uniform Civil Procedure Rules 2005 (NSW)).
2. Ying had resided in Australia since 2005 and completed an English language course at TAFE. Ms Ferguson also informed the Court that instructions for Ying's affidavit in these proceedings were taken in English. On that basis, I was satisfied that the best course of action was to allow Ying to give her evidence in English with intervention from a Mandarin interpreter when Ying needed that assistance.
3. It quickly became apparent during cross-examination that Ying spoke what could only be described as broken English. The assistance of the interpreter was required at several points in her evidence.
4. Ying gave evidence that the couple would communicate in English because Michael did not speak Chinese. She completely denied the conversations that Michael alleged formed the basis of their agreement. Given their lack of fluency in each other's' native tongue, and the obvious discrepancy between her grasp of spoken English in the witness box and the conversations as recounted in Michael's affidavit, this cast serious doubt on his version of events.
5. Notwithstanding the challenge presented by barriers of language, Ying demonstrated a clear understanding of the critical matters. Importantly, her evidence was consistent that she never intended to have any interest in the Property because it belonged to her son. Overall, Ying presented as a credible witness who cared deeply for her son and wanted the best for him, such that her own needs were secondary to his. The Court accepts Ying as a witness of truth.

Purchase of the Property

1. Ying's recollection of how the Property was purchased was that she had a brief conversation with her son in about June or July 2013 in which he told her that he planned to buy a property in Nowra.
2. Because Kevin was quite busy, she and Michael participated in identifying a suitable property, looking at property listings online and attending some inspections. Ultimately, Kevin was in charge of any final decision about which property to purchase. He settled on the Property, in part, because it was close to public transportation.
3. Ying asserted that she was not a party to discussions about the finer details of the purchase, including the price or the loan amount, because Kevin handled all of those matters himself. To the extent that she was aware, she knew that Kevin had contributed to the purchase price monies he had received as a gift and from his own savings (although she did not know exactly how much). She also knew that he had met with a mortgage broker to secure the loan.
4. Ying refuted Michael's claims that he had paid stamp duty or the solicitor's fees on the property transfer. That money came from Kevin originally. She also denied that he met all of the water and mobile phone bills. This expense was shared between them. However, she conceded that he did pay all of the electricity and Internet accounts.

Rent/mortgage repayments

1. Ying was repeatedly pressed about whether the Property was really intended to be for Kevin's sole benefit but on this she was firm: the Property was purchased by Kevin as an investment and she and Michael were tenants. She accepted that in 2013 she wished she could purchase a house of her own, but knew it was "impossible" for her.
2. As to the tenancy agreements referred to at [24], [58] and [61] above, Ying gave evidence that her handwriting appeared on at least one of the documents as did Michael's handwriting. She also stated that they were likely signed at the post office in Bomaderry although she could not specifically recall.
3. Mr Ang suggested to Ying that it would be frowned upon in Chinese culture for a son to charge his mother rent. She disagreed, maintaining that the fortnightly payments to Kevin were for rent and not for repayment of the mortgage, although the rental payments did conveniently cover the mortgage payments in full.
4. Evidence that she ceased to receive rental assistance from Centrelink around the time the couple commenced living at the Property was put to Ying. It was suggested that she was no longer in need of such assistance because she no longer paid rent and was instead paying a mortgage. Ying responded that she was unaware of this until she saw the Centrelink statement tendered as evidence in these proceedings. Michael controlled her finances, she claimed, including her Centrelink and ANZ bank account. She did not know how to make applications for such things and so Michael would do it for her, merely telling her when and where to sign her name. Michael also controlled all of the money coming out of her account and it was him who had set up an automatic debit for the fortnightly payments to Kevin.
5. It was pointed out that in her affidavit Ying stated that she was the person who transferred rent to Kevin. However, her evidence now was that Michael had set up an automatic debit from her account to transfer fortnightly payments to Kevin. Ying stated that she had said this because she had seen from her bank statements that the payments were coming from her account.
6. The automated payments to Kevin ceased in 2017, after Michael had been evicted from the Property. On Michael's case, this was evidence that the payments were never intended as rent. Ying stated that she had not paid rent to Kevin from about May to September 2017 because she was living in crisis accommodation. Other payments to Kevin by Ying continued after this date, but they were no longer in consistent amounts referable to rent. This was explained on the basis that Ying would transfer rent in addition to a portion of money that she wanted put aside as savings for herself. If Ying transferred $1,000 to Kevin, $700 was for rent and the remaining $300 was savings. The arrangement arose because, despite having opened a separate Westpac account that Michael did not have access to, Ying felt that her money was not safe from her former partner while it remained with her. She also had legal fees from NCAT that she owed her son and some of the money was repayment for that.
7. Kevin's bank statements from mid-late 2017 showed money being used to purchase furniture which, Ying alleged, was done on her behalf with extra funds she had deposited in his account. Further funds were used for a deposit to purchase a vehicle. In total, these amounts represented more than $12,000, which came well within the $18,800 of extra money referred to in the aide-memoire above at [28]. This supported her version of events that the additional moneys were not for the purpose of mortgage repayments.
8. It was suggested by counsel for Michael that what she was actually doing was attempting to divest her assets in anticipation of family law proceedings by Michael. Ying denied this. To the extent it is relevant, the Court accepts her denial.

Improvements to the Property

1. Overall, Michael had contributed comparatively little to the improvement and maintenance of the Property. The bulk had been paid for by Kevin and his relatives.
2. Some contributions Michael claimed (including the inverter, diesel generator for and deep cycle batteries) Ying claimed no knowledge of them.
3. Ceiling fans Michael stated he had paid for were paid by her and a bathroom renovation was paid by her brother-in-law.
4. Kitchen upgrades were paid by Kevin; Michael and Ying had gone to bunnings to get some screws and other pieces to install it but that was all.
5. A water tank was paid for by Kevin and guttering was paid for by Kevin and Ying's sister-in-law.
6. As to the concrete slab and shed built upon it, she alleged that Michael did not want to move anywhere without a garage, so the parties had agreed to construct a garage prior to the couple moving in. Kevin had paid for the concrete slab to be laid and Ying had given cash withdrawn from her bank account to Michael for the construction of the shed. Michael did not pay for either.

Kevin's evidence

1. Kevin was a careful and precise witness. He gave deference to documentary evidence wherever possible. Overall, his evidence was consistent and corroborative of that given by Ying. He appeared to be doing his best to give truthful evidence and I accept him as a reliable witness.

Purchase of the Property

1. Kevin denied that any conversation took place between himself, Michael and Ying in July 2013 as was put by Michael. There was no agreement that he would hold the Property in name only on their behalf.
2. His version of how the Property came to be purchased was that Ying and Michael searched for a property because Kevin was quite busy, and they would both be living there.
3. In July 2013, Kevin retained a mortgage broker, Betty Ventouris. He could not recall exactly who referred him to Ms Ventouris. It may have been someone at Suncorp or perhaps Michael. Kevin did not attend her offices, corresponding with her via phone and email. There was no evidence that any person other than Kevin had contact with Ms Ventouris.
4. Initially, Kevin dealt with Ms Ventouris for the purpose of obtaining pre-approval from Bank of China for the property at Park Road, Nowra. This was the property which Ying and Michael had inspected referred to at [19] and [42]. That inspection was paid for by Ying with a bank statement tendered showing payment of $495 from Ying to Wise Eyes Building Inspection. Kevin alleged he repaid that money to his mother.
5. The purchase of the property at Park Road, Nowra was abandoned for reasons that are unclear, and Kevin was able to obtain financing with Suncorp which led to him purchasing the Property.
6. Kevin agreed that R.F. Bergagnin had been retained to assist with the transfer at Michael's suggestion as they were former clients of Michael's. He did not recall the specifics of any conversation with Michael about this but accepted that it logically would have occurred. This was the extent of Michael's involvement in the transaction as everything else related to the purchase was handled by Kevin. The deposit, stamp duty and lawyer's fees were all paid by Kevin. He clearly rejected the notion that any conversation had taken place with the lawyers regarding holding the Property on trust.
7. At the time he obtained the loan from Suncorp, Kevin was a fulltime student at Sydney University. In terms of employment, he had been working approximately 10-20 hours per week as a mathematics tutor at a rate of $50 per hour.
8. Kevin denied that Michael had assisted him to obtain the loan from Suncorp in any way. No details were provided to demonstrate exactly how Kevin had obtained the $248,000 loan. Regardless, there was no dispute that he used it to pay for the purchase of the Property.
9. Given that Kevin, at the time the Property was purchased, was only twenty years of age with little in the way of assets, counsel for Michael submitted that an inference could be drawn that he would of course be holding his interest on trust for his mother and stepfather. However, the evidence presented at hearing ultimately did not support any such presumption, which in any event the Court does not consider is a presumption that can be made as a proposition.
10. The remaining funds for the purchase were paid by Kevin using a combination of moneys given to him and his personal savings. This included: 1. $5,000 provided to Kevin by his godmother, Manna Howarth. A bank statement belonging to Ms Howarth showed a $5,000 withdrawal on 15 July 2013. A deposit of that amount was received into Kevin's Westpac account on 18 September 2013. 2. $5,000 provided by his mother's friend, Lina, who resided in New Zealand. Oral evidence from Ying agreed on this point. A second deposit of that amount was received into Kevin's Westpac account on 18 September 2013. 3. $27,300 for the deposit that was given to him by his grandfather. Bank statements confirmed this transaction on 10 September 2013. 4. Approximately $7,000 of his own savings from a separate Westpac account. A deposit of this amount was made to Kevin's Westpac Choice Student account on 14 October 2013.
11. Although Kevin gave evidence that he was allowed to spend the money he was given by his grandfather, godmother and Lina on whatever he wished, he chose to use it for the purchase of a home. It was put to Kevin that it was implausible that a 20-year-old man would use a gift to purchase an investment property, but he maintained (and the Court accepts) that this is what occurred.
12. Kevin's evidence was that, in purchasing the Property, he had acted for the dual purpose of securing rental accommodation for Michael and Ying and an investment property for himself. This was supported by the fact that he obtained the funds for the deposit from his grandfather in China and Michael allegedly knew nothing of the mortgage arrangements.
13. It was also consistent with Kevin's affidavit evidence, which asserted that he offered to allow his mother and Michael to live in the Property, but they would be required to pay rent in order for Kevin to meet the mortgage repayments.
14. Kevin pointed out that remarks made by him during NCAT proceedings in 2018 were consistent with his case before this Court. Those remarks were: "I purchased the property in late 2013. That is not in dispute. I organised the paper works, yes. The lawyers and the mortgage broker sort of thing, they were suggested by Mr Sweeney and Ms Ying He partially and that is not in dispute but let me be clear that I paid for all the costs involved, the taxes, the deposit, everything. I have the bank statement to prove that."

Rent/mortgage repayments

1. Kevin agreed that he received $700 fortnightly from his mother beginning in approximately December 2013. At that time, the mortgage repayments were set at $1,331 per month, making the total rental payments slightly higher than the mortgage repayments. The mortgage repayments increased to $1,771 in October 2016.
2. Mr Ang pointed to two additional deposits of $1,000 made by Ying around that time, alleging this was done to reflect the increase in mortgage repayments. Kevin denied this. His understanding (which corresponded to the evidence Ying had given) was that Michael controlled Ying's finances and the extra money was an attempt by her to keep some of her savings in a place beyond his control. In any case, Kevin did not need his mother to meet the mortgage repayments. His own income in 2016 was sufficient to cover it, especially with the fortnightly $700 he received in rent.
3. Like Ying, Kevin was pressed by Mr Ang about whether the payments were truly for rent, but Kevin adhered to his evidence. He conceded that the rental payments were deposited into his Suncorp account and often used to cover the mortgage, sometimes with no additional funds deposited by himself, but they were not mortgage repayments.
4. Mr Ang drew the Court's attention to remarks made by Kevin during NCAT proceedings in 2018 in which he stated: "And yes there was an agreement between myself and Ms Ying He that says she will pay me a certain amount because we are mother and son. So she helped me to accommodate the mortgage payment and at that time was not claimed as a rent and that is not a problem because the matter that is in the court today is not about what happened in 2013. It's about what happened during 2017 …"
5. Kevin did not dispute the veracity of what he stated during the NCAT proceedings. He could not have done so as his remarks were taken from a transcript of those proceedings. Kevin clarified that he was only stating that his mother's rent had assisted him to pay the mortgage, not that his mother was making mortgage repayments. As to the statement that it was "not claimed as rent" this was because there was no formal tenancy agreement in place until 2016 (although they were still tenants prior to this time). The Court accepts these explanations.
6. Other things he said at NCAT were consistent with the version of events he now advanced, including that rent was paid at a rate of $350 per week. It was also submitted by Ms Boettcher for the defendants that the NCAT proceedings were confined to the tenancy agreement in 2016-2017. That appears to have been the case.
7. On Kevin's evidence, the tenancy agreements were legitimate documents and not forgeries. They had been drafted in light of the fact that Michael wanted to claim rental assistance from Centrelink, which required written evidence of his tenancy. A copy of Michael's Centrelink statement dated 23 May 2017 shows that he was in receipt of rental assistance at that time.

Improvements to the Property

1. Kevin's evidence corroborated the evidence of his mother. His evidence was that: 1. Kevin paid $790 for the water tank that Michael claimed to have paid for. This was confirmed by Kevin's bank statement that showed a $790 withdrawal at South Nowra Bunnings on 6 November 2016. 2. The installation of the water tank and guttering works totalling $6,494.19 were paid for by Kevin and his aunt. This was done through a deposit of $3,000 to the Contractor and two transfers to Zang Technologies by Kevin of $1,250 and $850. The remainder was paid by Kevin's aunt in cash as a gift to him. It was put to Kevin that Michael paid for the works through the sale of a Subaru Outback. Kevin responded that the $1,250 and $850 payments were initially made by him for the purchase of the Subaru Outback for his mother, however the purchase never eventuated and so the money was repurposed for the home improvements. 3. Kevin paid $5,000 for the concrete slab to be laid. This was evidenced in his bank statement on 18 September (which showed a withdrawal for that amount). This was done to satisfy Michael, who wanted a covered area to work on the second-hand vehicles he sold and would not move to the Property without it. The kit garage on the concrete slab was to be paid for and dealt with by Michael and Ying without Kevin's involvement.
2. Mr Ang put to Kevin that it seemed unusually generous for a 20-year-old student (as Kevin then was) to pay for the concrete slab which was only for Michael's benefit. Kevin explained that he chose to appease Michael out of love and concern for his mother since he could not ask her to separate from Michael at that time and he wanted secure accommodation for her.
3. Other contributions made by Michael were put to Kevin under cross-examination. These included: 1. Curtains in 2014. 2. An inverter in March 2013 for $1,300. 3. A deep-cycle battery in June 2013 for $6,050. 4. An off-grid switch system in November 2015 for $319. 5. A diesel generator in November 2015 for $2,982. 6. Floating floorboards in April 2016. 7. Kitchen cooktop and oven around May/June 2016. 8. A Mitsubishi inverse air conditioner in mid-2016 for $1,050. 9. Bathroom renovations in mid-2016. 10. Two remote controlled ceiling fans in August 2016 for $250.
4. With respect to those contributions listed at [117(1)-(5)], Kevin attested that he did not know how much these things had cost as they were done by Michael without Kevin's input.
5. Many of the items listed could not truthfully be claimed as improvements by Michael. The off-grid switch system, inverter, diesel generator and deep cycle battery listed at [117(2)-(5)] were removed from the Property, presumably by Michael, before Ying moved back in 2017. Kevin paid an electrician to remove the wires leftover from the off-grid switch system. Screenshots showed an advertisement by Michael on Gumtree for the sale of an "off-grid package" listed for sale on 9 June 2017 for $6,000.
6. He maintained that the fact that his permission for several of the improvements was not obtained did not undermine the notion that Michael was a tenant. In the case of the curtains, Kevin stated that was something which wouldn't require permission from a landlord anyway given it wasn't a permanent alteration.
7. The floating floorboards referred to at [117(6)] above were paid for jointly by his mother and Michael, and the kitchen cooktop and oven at [117(7)] were paid for by Kevin (although Michael and/or Ying installed them by plugging them in).
8. Kevin could not recall the exact details regarding the Mitsubishi air conditioner referred to at [117(8)], bathroom renovation at [117(9)] or the remote-controlled fans referred to at [117(10)].
9. In several instances, payments had been made by Michael using funds supplied by Kevin. Many of the payments by Kevin were in the form of cash that he had withdrawn from his account to give to Michael. According to Kevin, this was generally done as Michael's request as he "loves using cash for payments" (Tcpt, 3 December 2022, p 239(42)).
10. Michael paid for the electricity and internet bills at the Property. He paid for most, but not all, of the water bills as some of these were paid by Kevin, including infrastructure costs. This was not unusual for a tenant in Kevin's opinion because Kevin himself paid for those same utilities as a tenant.
11. The council rates and home insurance were both paid by Kevin.

Plaintiff's submissions

1. The submissions for Michael may be summarised as: 1. Michael was a witness of truth. The inconsistencies in his evidence were mere inadvertent errors. In any event, his inconsistencies were peripheral to the real matters in dispute. In contrast, the defendants were not reliable witnesses. 2. The conversations alleged by Michael in 2013 established the basis for a common intention trust or a proprietary estoppel. 3. Kevin was merely a "rubber stamp" for the purchase of the Property. This was especially so because Michael and Ying had identified the Property and the money used to purchase it largely came to Kevin from other people rather than his own earnings. 4. A joint endeavour constructive trust could be established on the objective circumstances even if the Court was not satisfied the conversations alleged by Michael in 2013 ever occurred. Three key pieces of objective evidence were identified: Centrelink records showing that no rental assistance was claimed by Ying from 2014 until 2016, bank statements showing the increase in mortgage repayments and Ying's transfers to Kevin in 2017, and invoices demonstrating Michael's participation in improving the Property.

Defendants' submissions

1. Although they provided separate submissions, their closely connected interests justify consolidating their arguments. The submissions for Ying and Kevin together may be summarised as: 1. The evidence of the defendants was to be preferred over Michael because it was consistent with documentary evidence whereas his evidence was unsupported. The defendants' evidence was also consistent with each other: both Ying and Kevin agreed the Property was Kevin's investment, albeit one which had the additional benefit of securing reliable accommodation for his mother. 2. The contemporaneous records favoured a conclusion that Kevin was the true owner of the Property and he had purchased it as an investment with assistance from relatives and family friends. This was supported by the fact that Kevin obtained the mortgage in his name only and managed the mortgage repayments himself from his Suncorp account. 3. In contrast, there were no contemporaneous records to support Michael's account of the alleged conversations. The alleged conversation with his solicitor, in particular, was implausible because it was never recorded in writing. 4. Fortnightly payments to Kevin were not mortgage repayments but were for the purpose of rent. Given that Kevin was not paying agent fees, it was perfectly explicable that the rent would cover the whole of the mortgage repayment without need for further contribution by him. Irrespective, Kevin's financial capacity to meet the repayments was less relevant than whether there were other circumstances giving rise to a constructive trust or proprietary estoppel. 5. Michael's so-called improvements to the Property were minimal and most of what he claimed was actually paid for by Kevin. Further, he had in fact caused damage to the Property to the extent that that it resulted in a costs order against him being issued by NCAT. 6. At most, the Court could be satisfied that the parties were in a mutually beneficial arrangement to provide secure accommodation for Ying, but no proprietary interest arose in favour of either her or Michael. However, even if a constructive trust were established, the contributions of Ying far outweighed those of Michael and adjustments would need to be made accordingly.

Consideration

1. Mr Ang argued for Michael that there were three bases upon which the Court might found a constructive trust had arisen. These were: 1. Common intention trust; 2. Joint endeavour trust; and 3. Proprietary estoppel.
2. It is convenient first to deal with the alleged conversations that were central to Michael's case. It follows from the Court's earlier findings as to credit at [34]-[36], [74] and [93], and the contemporaneous records such as they are consistent with the defendant's case, that the Court finds those conversations never occurred. This is fortified by what is set out below at [133] to [138].

Common intention trust

1. It was advanced for Michael that a common intention trust existed between the protagonists arising from the alleged conversations in 2013. Specifically, that the parties held an intention between them that Kevin would hold his interest in name only. The true owners were Michael and Ying in equal half shares.
2. The requisite elements of a common intention trust were helpfully set out by White J (as his Honour then was) in Re estate of the late Doolan; Shepherd v Doolan [2005] NSWSC 42 at [31]: "One class of case where equity will intervene to prevent the unconscientious denial by the legal owner of another party's rights, is where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other. And the claimant acted to his or her detriment on the basis of that agreement or common intention (e.g. Grant v Edwards [1986] Ch 638; Green v Green (1989) 17 NSWLR 343; Maharaj v Chand [1986] AC 898 at 907)."
3. The Court does not accept that any common intention existed between the parties that Kevin would hold the Property on trust. There was no documentary evidence of such an agreement, and the oral and circumstantial evidence does not support its existence.
4. First, it is implausible that Ying, who spoke English as a second language and had a basic grasp but was by no means fluent, would have used the words Michael attributed to her at [38] to [40] above (and especially at [139]). His account of their conversations ascribed colloquialisms that, having observed her in the witness box for a considerable period, are simply unbelievable. When it was put to him under cross-examination that Ying would not have spoken in the terms he described, he maintained that she did. Given my own observations of Ying in the witness box, I cannot be satisfied of Michael's account on this matter.
5. Written submissions in reply for Michael attempted to assert that it was only words to the effect of the colloquialisms that were stated by Ying. However, that submission ignores this exchange between Michael and Ms Ferguson during cross-examination (Tcpt, 25 November 2021, p 74(29-38)): "Q. "Saddled with the transfer fee", you say that Ms He would use that sort of colloquialism? A. She has a background in human resources and she has legal experience. Q. That's not an answer to my question. A. What was the question again? Q. The question was that you attributed words to her where she says "I would be saddled with transfer costs"? A. That's what she said."
6. Second, Michael claimed that he had a conversation with solicitors at R.F. Bergagnin & Co to the effect that the Property was to be held on trust by Kevin. Michael claimed that, despite the conversation, he was never advised by R.F. Bergagnin to put anything related to the agreement in writing.
7. It seems extraordinary that solicitors retained for the purpose of providing advice on a property transfer would not recommend that any trust agreement should be recorded in writing, such that the Court is not satisfied that Michael ever had any such conversation.
8. That conclusion is underscored by correspondence from R.F. Bergagnin & Co dated 27 September and 31 October 2013 that asserted Kevin would be responsible for payment of stamp duty and solicitors' fees, which accords with a state of affairs where Kevin was understood to be the true owner.
9. Third, the Court accepts Kevin's explanation that the Property was his investment but that he had a concurrent motivation to provide comfortable, secure accommodation to his mother. The improvements made to the Property, including acceding to Michael's request for a concrete slab and shed as well as other renovations, align with this version of events. Michael and Ying had always rented. All that had changed was that they would not find themselves suddenly turned out of the Property (for example, due to reasons of increased rent). In circumstances where the Property was intended to be a long-term residence, it is also logical that permission would not always have been required for the couple to undertake alterations (although the Court nevertheless finds that these were minimal - see [143] to [145] below).
10. These points taken together satisfy the Court that the actual state of affairs that existed at the time the Property was purchased was one in which Kevin was intended to obtain absolute ownership of both the legal and beneficial interest.

Joint endeavour trust

1. In the alternative to a common intention constructive trust, Mr Ang asserted that a joint endeavour trust could nevertheless be established.
2. The relevant legal principles to establish a joint endeavour trust were elucidated by Deane J in Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 at 620: "[T]he principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or provided that the other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him to do so …"
3. What emerged from the evidence put before the Court was a tendency by Michael to exaggerate his contributions. He credited to himself payments for which he was not, in reality, responsible and tended to minimise the contributions of others. Where objective evidence did not support his account, he asserted that the document was either inexplicably incorrect or fraudulent.
4. Extrapolating from the consistent accounts of Ying and Kevin, in conjunction with the documentary material tendered, the Court is not convinced that Michael contributed to the Property in any significant way beyond the construction of the shed, floating floorboards, assisting in some minor renovations, hanging curtains, and installing an off-grid power system that seems to have been removed from the Property upon his vacating it. The Court's findings in relation to the various alleged contributions are: 1. The deposit was paid by Kevin in the manner described by him at [103] above. This was largely consistent between Ying and Kevin's accounts and was also reflected in the evidence of Kevin's transferrals of funds to Zang Technologies' bank account. 2. Stamp duty was paid by Kevin. Michael's evidence on this point is not accepted, and is contradicted by several pieces of documentary evidence, being Kevin's bank statements and correspondence from R.F. Bergagnin & Co. 3. Solicitors' fees were paid for by Kevin as demonstrated by contemporaneous bank records and correspondence from R.F. Bergagnin & Co. 4. It was undisputed that council rates and insurance were paid by Kevin. 5. The utilities, including electricity, Internet and water were paid by Michael (with some measure of contribution by Ying). The Court finds he did so in the ordinary course as a tenant. 6. The concrete slab for $5,000 was paid for by Kevin. This is reflected by the consistent accounts of Ying and Kevin and is supported by documentary evidence of Kevin's bank statements. 7. It was unclear on the oral testimony who, exactly, paid for the shed that was constructed on the concrete slab for $3,455. Michael claimed he paid. He was named on the invoice and a payment was recorded from Zang Technologies. Ying claimed the couple were both responsible for the shed without Kevin's input (though she did not specify who paid), and Kevin claimed that he paid. Taking into account the objective evidence of Kevin's Westpac bank statements showing transfers to Zang Technologies, the Court is satisfied that, on the balance of probabilities, Kevin was the original source of the funds for the shed, although Michael carried out the arrangements as the shed was for his benefit. 8. The curtain hardware in two lots totalling $971.58 was paid for by Michael. However, the Court accepts Kevin's evidence that curtains are not a fixture as they are easily removed, such that any tenant could put them up. It cannot be concluded that Michael's contribution in this regard provided much overall value to the Property let alone constituted part of any joint endeavour. 9. The electrical box frame, inverter charge, diesel generator, switch system and deep cycle batteries which formed part of the off-grid system totalling $11,552 were purchased and installed by Michael. However, the Court accepts Kevin's assertion (which is supported by evidence of a Gumtree advertisement) that Michael removed and sold these items upon vacating the Property. The Property therefore retains no such benefit from the off-grid system, and whatever benefit it conferred while Michael was resident primarily accrued to him as a tenant because the Court accepts his evidence that he was the person who paid for the electricity bill. 10. The water tank for $790 was purchased by Kevin. This is evident from contemporaneous bank statements. 11. The guttering for $6,584.19 was paid by a combination for funds from Kevin and his aunt (Ying's sister-in-law). At least one document shows clear evidence that Kevin contributed $2,000 to the cost of this improvement. While the cash receipts referred to at [30(13)] above are issued in both Ying and Michael's names, it is unclear how much of that money (if any) came from Michael. In the absence of further reliable documentary evidence (which the documentary material Michael relied on at [66] above was not) and in light of the consistency between the defendants' accounts on this matter, the Court is satisfied that Kevin's aunt was the source of the remaining funds. 12. The air-conditioning unit for $1,500 suffered from a lack of documentary evidence in relation to who paid for it. It was undisputed that the unit had initially been installed at the couple's prior residence, so Kevin had no involvement, nor could he recall the air conditioner when it was put to him during cross-examination. The Court accepts that Michael paid for the air conditioner. However, it is unclear whether the air conditioner remains at the Property or whether it was removed by Michael on his departure. 13. The ceiling fans installed for $250 were paid for by Ying. Despite Michael's assertion that he was responsible for this, given his unreliability as a witness and the lack of objective documentary evidence regarding the purchase, Ying's evidence is accepted. 14. The kitchen oven and cooktop were paid for by Kevin (as was accepted by Michael during cross-examination). The Court is satisfied that Michael installed them but is not persuaded that the installation was a significant undertaking. 15. The bathroom renovations in the form of new vanities, the cost of which is unknown, were paid for by Ying's brother-in-law and Michael assisted with installation. The Court bases this finding on the fact that Michael has demonstrated a propensity to exaggerate his contributions, and in the absence of any objective documentary evidence, Ying's oral testimony is preferred. 16. The floating floorboards were installed by Ying and Michael. With no evidence before the Court regarding the cost of this work, or how much each individual was personally responsible for paying, it is difficult to quantify. The Court is satisfied that Ying and Michael both paid but can conclude nothing further.
5. The Court's findings in the preceding paragraph at [143] result in a conclusion that, even extending the benefit of the doubt to him, Michael's financial contributions were minimal. He has not made out any quantifiable entitlement to reimbursement. He made other contributions in the form of labour, but these were also on a small scale and do not rise to a level that persuades the Court that corroborates a joint intention that Michael was intended to have any proprietary interest in the Property.
6. In any case, there is a more likely explanation for many of the improvements that was advanced by Kevin: he was simply making the Property decent for his mother to live in. His actions may have been more generous than what the average tenant might expect from a landlord, but it was understandable in the context of their close family relationship, and without further reliable evidence does not demonstrate a joint endeavour.
7. Even if Michael were entitled to reimbursement for his contributions, those debts may be offset against monies he owes Kevin. Evidence tendered in these proceedings showed that orders were made by NCAT on 15 February 2018 that Michael and Ying were liable to pay $5,600 to Kevin as compensation. If he has not already done so, the outstanding amount would need to be offset against the value of his contributions, reflecting the maxim that those who seek equity must do equity.
8. Mr Ang also submitted for Michael that the fact that the "lion's share" of the mortgage was covered by Ying's fortnightly payments was sufficient to establish a joint endeavour under which it would be unconscionable for Kevin to retain the Property. Mr Ang directed the Court's attention to the decision of Parker J in Woods v McKinlay (No 2) [2021] NSWSC 1510 (Woods v McKinlay) at [165]-[166] to support this proposition.
9. There are significant differences in the overall contributions made by Michael in this case and those made by the plaintiff in Woods v McKinlay. In that case, the plaintiff had contributed to the deposit, covered all improvements and repairs, paid $130,000 in lump sum towards the mortgage and a subsequent $320,000 towards the mortgage in the form of monthly "rent".
10. In contrast, as is set out in [143] to [145] above, the Court is not satisfied on the balance of probabilities that Michael ever contributed to the deposit, stamp duty or solicitors' fees for the Property. The manner in which money moved through the Zang Technologies account, and correspondence from R.F. Bergagnin & Co that states Kevin was responsible for paying stamp duty and solicitors' fees, are consistent with Kevin paying these moneys.
11. The plaintiff in Woods v McKinlay also paid council rates and insurance which Michael and Ying did not.
12. To the extent that Michael could claim to have contributed to the mortgage, this was only through Ying's fortnightly payments. The Court notes (but does not accept) Mr Ang's submission that the fortnightly payments were part of Ying and Michael's shared household assets. This is based on the fact that, in all other matters of contribution alleged by Michael, he makes no allowance for the notion that the money he expended was part of any shared household asset with Ying. His insistence now that the rental payments were a shared asset between them is at odds with this. It is also at odds with his version of the alleged agreement between the parties, whereby his contribution was to pay for the utilities.
13. Michael stressed that he had an interest in the payments as they derived from Ying's carer's pension which, in his view, was for his benefit. This is a troubling and inaccurate characterisation. The correct characterisation is that the carer's pension was for Ying's benefit, in recognisance of the fact that her ability to maintain gainful employment was impacted by the assistance she provided to Michael.
14. Additionally, the Court is not satisfied that Michael could claim that his interest in Ying's payments was in the proportion of 50% (as put by Mr Ang in written submissions). The household arrangement between the couple was that Ying had responsibility for the rent at a rate of approximately $350 per week while Michael would pay the couple's phone bills, Internet and other utilities (though Ying claimed to have contributed to this on occasion also). The total moneys expended by Ying on rent over time would have far exceeded those expended by Michael on household bills.
15. Even if the conclusions set out at [151] to [153] are wrong, without further evidence it does not dislodge the Court's ultimate find that the purpose of Ying's payments was rent.
16. The absence of any claim for rental assistance from Centrelink during the period from 2014 until 2016 is easily explicable on the basis put forward by Kevin (which the Court accepts) that rental assistance was not claimed because the tenancy agreement at that time was of an informal nature.
17. On this point, Ying and Kevin gave consistent evidence and the Court accepts their assertion that the payments were rent and not mortgage repayments. It is perfectly credible (and common) that a landlord should pay the lion's share of a mortgage with rent received from tenants. This factor, without greater evidence of agreement between the parties or contribution by the plaintiff, cannot establish a constructive trust.
18. The Court also rejects Michael's contention that the increase in Ying's fortnightly payments corresponded to an increase in the mortgage repayments in 2017. Evidence was provided by Ying of additional purchases she had made with monies from Kevin's Suncorp bank account, including receipts for those purchases. This accords with an understanding that Ying was paying savings into the Suncorp account in addition to her rent. The aide memoire described at [28] above, plainly sets out that Ying's purchases fell comfortably within the range of additional funds that she had transferred. Any discrepancy about the purpose of those funds (namely, whether they were to assist Kevin as was stated in her affidavit, or for her own savings as was stated during oral evidence) is de minimis.
19. To the extent that Michael may have made other contributions, these were in the nature of assisting Kevin to identify a suitable property for his investment and making recommendations for solicitors and a mortgage broker to assist in the transaction. These actions, even taken together with the other contributions that I have accepted, do not rise to the level of a joint endeavour.
20. The effect of these findings is that the Court is satisfied on the balance of probabilities, to the level of actual persuasion, that no joint endeavour existed in the terms alleged by Michael. The property was not purchased in Kevin's name only for Michael and Ying's benefit. The Court finds that it was purchased as an investment property by Kevin, with the added intention of providing secure rental accommodation for his mother.

Proprietary estoppel

1. Counsel for Michael relied on the principle established in Ramsden v Dyson (1866) LR 1 HL 129 to assert the existence of a proprietary estoppel. The principle is enunciated in the oft-cited passage of Lord Cranworth LC (at 140): "If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own."
2. Michael's case in relation to proprietary estoppel can be quickly dealt with as the elements on which it could be grounded have been largely dealt with in the preceding paragraphs.
3. First, for the reasons already set out at [133] to [137] above, the Court does not accept that the conversations in 2013 alleged by Michael with the other parties or with the solicitor, Michael Bergagnin ever occurred. It follows that there was no agreement between them that Michael was ever going to obtain an interest in the Property beyond that of a tenant.
4. Second, for the reasons set out at [143] to [145] above, the Court does not accept that the contributions made by Michael were of so significant a nature that they would give rise to an estoppel.
5. Third, the Court does not accept that to the extent that works were carried out with the knowledge or permission of Kevin, this indicated an understanding by Kevin that Michael expected to hold a proprietary interest. In the absence of any prior representation or agreement, the Court concludes that the works undertaken both with and without Kevin's knowledge were largely within the realm of what a tenant might reasonably do (especially one whom the landlord had an interest in appeasing, given their familial connection).
6. Fourth, for the reasons set out at [154] to [157] above, the payments made by Ying were for the purpose of rent, not mortgage repayments, although they incidentally covered the mortgage repayments until those repayments increased.

Conclusion

1. Michael's case fails because the Court is not satisfied that any endeavour or agreement existed that could give rise to a constructive trust over the Property or that any proprietary estoppel has been made out.
2. The parties will be given an opportunity to make submissions as to costs which, in the absence of any special application, should follow the event.

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: 24 May 2022