Sweeney v He

Catchwords

[2020] NSWCA 165 Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 Baira v RHG Mortgage Corporation Ltd [2012] NSWCA 387[1984] HCA 81 CSR Ltd v Della Maddalena [2006] HCA 1(2006) 80 ALJR 458 Day v SAS Trustee Corporation [2021] NSWCA 71 Devries v Australian National Railways Commission (1993) 177 CLR 472[1993] HCA 78 DW v The Queen [2004] ACTCA 22(2004) 150 A Crim R 139 E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63 Ellis v R [2015] NSWCCA 262 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Galea v Galea (1990) 19 NSWLR 263 Hofer v The Queen [2021] HCA 36(2021) 95 ALJR 937 Jones v National Coal Board [1957] 2 QB 55 Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366[2007] NSWCA 83 Lee v Lee (2019) 266 CLR 129[2011] HCA 48 Michel v The Queen [2009] UKPC 41[2010] 1 WLR 879 Mikus v Chief of Army [2020] ADFDAT 1 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507(2020) 94 ALJR 785 R v Barrowman (2007) 96 SASR 294[2007] SASC 28 R v JAE [2021] QCA 287 R v Keyte (2000) 78 SASR 68

Judgment (19 paragraphs)

[1]

Background

The background to the present dispute between the parties is set out in the primary judgment and can be summarised as follows.
The appellant and the first respondent met in China and were married there in 2003. In 2005, the first respondent immigrated with her son (the second respondent) to Australia. The family lived in a number of rental properties in the period from 2005 to 2014, during which time the first respondent claimed and received rental assistance and other benefits from Centrelink. The first respondent's evidence in cross-examination, about which the appellant takes issue, was to the effect that the appellant had financial control and was responsible for the rental assistance claimed until their separation.
In mid to late 2013, the appellant and the first respondent inspected a number of properties for sale in Nowra. The second respondent cavils with the proposition by the appellant that he (the second respondent) had nothing to do with the house-hunting and says that there was also evidence that he (the second respondent) searched the internet and specified Nowra, near the train station, as his desired location. The second respondent says that it was common ground that the property was not intended to provide accommodation for the second respondent and that multiple properties were considered by all the parties prior to reaching an agreement about the subject property.
There was in evidence a copy of a pre-inspection report dated 19 July 2013 for a property at Park Road Nowra, which listed the appellant as the client and the second respondent as the intended purchaser of the property. The primary judge found that this was with a view to the second respondent purchasing a property in his name (see at [19]).
The appellant alleged that there was an oral agreement in June 2013 that the second respondent would make a loan application for the purpose of a property as the appellant could not obtain a loan due to his illness and age and the first respondent was on Centrelink benefits (see at [38]-[39]). The respondents denied this allegation and the primary judge did not accept that there was such an agreement (see at [36]; [46]).
The appellant also alleged that the second respondent began employment as a subcontractor to the appellant's business (Zang Technologies), earning about $2,000 per month paid in cash (and that this was part of the joint endeavour to obtain the loan to purchase the Bomaderry Property). This was denied by the second respondent and the respondents say that there is no objective contemporaneous evidence to support this.
The appellant alleged that in July 2013 there was a further oral agreement to the effect that the second respondent would obtain a loan; the appellant would help with the procedure to purchase a property, along with paying utilities, mobile phones, food and improvements; and the first respondent would pay the mortgage (see at [40] of the primary judgment). This was again denied by the respondents, who claimed that at all times the agreement was that the first respondent would pay rent to the second respondent. (The appellant maintains that in February 2018 the second respondent contradicted this position in evidence that he gave in other proceedings at the NSW Civil and Administrative Tribunal (NCAT) - see below.)
On 9 September 2013, the second respondent obtained a home loan from Suncorp for $248,977.35. There seems to have been no evidence of any loan application in relation to the Suncorp loan. Those funds were used to fund the purchase of the Bomaderry Property for consideration in the sum of $272,000. There were also disputes at hearing about the contributions each party made to the purchase price and associated expenses.
The purchase of the Bomaderry Property completed on 31 October 2013. The second respondent was registered as the owner. The appellant had arranged for solicitors who had previously been his client to act on the conveyance. An invoice dated 31 October 2013 for their fees was addressed to the second respondent. The primary judge noted that there was a dispute as to whether the appellant or the second respondent paid the invoice (at [21]).
There was also a dispute as to a conversation that the appellant claimed to have taken place with the solicitor acting on the conveyance at the time the second respondent signed the contract for sale of the Bomaderry Property, to the effect that the property would be held in trust for "you guys" (being the appellant and the first respondent). The primary judge did not accept that the appellant ever had any such conversation (at [136]) pointing to the implausibility that solicitors retained for the purpose of providing advice on a property transfer would fail to recommend that any trust agreement should be recorded in writing.
In December 2013, the appellant and the first respondent moved into the Bomaderry Property. There was no written tenancy agreement at that time.
ANZ bank statements from the first respondent's account showed regular transfers of $700 each fortnight between 2014 and 2017 to the second respondent's Suncorp Everyday Options account. Those fortnightly transfers appear to have occurred the day after the first respondent received payments (of around that amount) from Centrelink. (The appellant says, but the first respondent appears to dispute, that the first respondent received a carer's pension as the appellant's carer. However, the primary judge seems to have accepted that the first respondent was in receipt of a carer's pension, see at [152], when recording that he found the appellant's characterisation of the carer's pension as being for his benefit was a "troubling and inaccurate characterisation".)
The fortnightly payments received from the first respondent were debited from the second respondent's Suncorp Everyday Options account into his Suncorp Investment Loan account in repayment of the mortgage repayments. Suncorp bank account statements in the second respondent's name showed that mortgage repayments were initially paid at a rate of $1,271.84 per month from that account. The primary judge noted that it was hotly contested between the parties as to whether the fortnightly payments by the first respondent to the second respondent represented rent or mortgage repayments (at [2]).
The appellant's bank account records deductions for mobile phone bills, water and other utilities (which he maintains is consistent with the alleged July 2013 oral agreement). The appellant also tendered evidence as to work performed by him or expenses paid by him in relation to the Bomaderry Property (which was the subject of dispute between the parties). The primary judge made findings as to the appellant's alleged contributions at [143], describing his financial contributions and the improvements to the property as minimal (see at [138]; [144]).
The Centrelink customer record for the first respondent showed that she claimed rental assistance from 7 August 2006 up until 4 February 2014 for various rental properties and that from 4 February 2014 (thus, shortly after the purchase of the Bomaderry Property), the first respondent ceased obtaining rental assistance from Centrelink.
In August 2015, the appellant had a liver transplant and in his submissions he identifies that, after this, his relationship with the first respondent began to deteriorate. The appellant says that, by then, he could not work, and he began claiming the disability support pension in September 2015. The appellant's health apparently continued to deteriorate in April 2016.
Two tenancy agreements (the authenticity of which was disputed by the appellant) each dated 1 April 2016 were in evidence, both stating that the second respondent was the landlord and that the appellant and first respondent were the tenants. In cross-examination, the first respondent said that the appellant had forced her to create the document(s) (see T 158.18-24).
The Centrelink records relating to the first respondent indicate that rental assistance was claimed again from 1 April 2016 (this being the date of the disputed residential tenancy agreements).
The primary judge found that, around October 2016, the second respondent's Suncorp bank statements began to show an increase in the mortgage repayments to $1,771 per month (see at [26]).
In May 2017, the relationship between the appellant and the first respondent broke down; and the first respondent moved into crisis accommodation (see at [2] of the primary judgment). The appellant remained in the Bomaderry Property at that stage.
The second respondent then brought an application against the appellant in NCAT to terminate the appellant's tenancy of the Bomaderry Property. An eviction notice was served on 19 May 2017. The appellant denied that there was any lease agreement to be terminated. There was a hearing at NCAT on 4 July 2017 in the appellant's absence and orders were made to terminate the appellant's tenancy. The appellant sought unsuccessfully to set aside NCAT's orders. A warrant for possession was issued on 19 August 2017 and the appellant subsequently vacated the Bomaderry Property in September 2017. The first respondent then resumed occupation of the premises.
The primary judge found that "in mid-2017", after the appellant had vacated the Bomaderry Property and the first respondent became the sole occupant, the payments from the first respondent to the second respondent began to increase, varying in amount from $1,000 up to $2,000 per transfer (at [27]).
Further proceedings ensued between the parties, including an application by the second respondent against the appellant (to which the first respondent was joined also as a respondent) for the recovery of amounts claimed as unpaid rent for the period from May to September 2017. (In his appeal submissions, the second respondent points to the fact that in the NCAT proceedings the appellant had marked his documents as "tenant".)
Tendered at the hearing before the primary judge was a transcript of proceedings in NCAT on 15 February 2018 relating to the claim for unpaid rent. The appellant places much weight on the following evidence given by the second respondent on that occasion: Ms Ying He and Mr Sweeney moved into the Property. 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's happened in 2013 it's about what happened between the period in 2017. Relevantly, there was a dispute between the parties as to what was meant by "accommodating" the mortgage payments.
The appellant commenced proceedings in the Supreme Court by statement of claim filed on 3 March 2020, claiming amongst other relief a declaration that the Bomaderry Property was held on trust for him in the proportion of 50% or such other amount that the Court might determine. The amended statement of claim filed on 14 August 2020 amended the declaratory relief claimed to a declaration that the second respondent held the property on constructive trust for the appellant and the first respondent in equal shares. The appellant sought an account to be taken as to amounts paid and received by the parties with respect to the property; an order as to payment by way of contribution following that account; and an order for a trustee for sale to be appointed to the property. In the alternative, the appellant sought an order that the respondents pay him the sum of $41,428.66 by way of restitution plus interest and costs on that amount.

[2]

Primary judgment

As noted earlier, the appellant's claim was put in various ways: a joint endeavour constructive trust, a common intention constructive trust or a constructive trust arising pursuant to proprietary estoppel. The appellant claimed that a verbal agreement had been made by the parties that the second respondent was to hold the property on trust for the appellant and the first respondent. Both respondents denied the claim and asserted that the Bomaderry Property was purchased as an investment for the second respondent and to assist his mother in having stable long term accommodation.
Having considered the evidence and made findings as to the credit of the witnesses (see at [34]-[36], [74], [93]), the primary judge found that the alleged conversations that were central to the appellant's case had not occurred (at [129]).
As to the alleged common intention trust, the primary judge did not accept that any common intention existed between the parties that the second respondent would hold the Bomaderry Property on trust, noting that there was no documentary evidence of such an agreement; and saying that the oral and circumstantial evidence did not support such an agreement (at [132]). His Honour considered it implausible that the first respondent would have used the words attributed to her by the appellant; was not satisfied (as noted above) that the appellant had had the conversation with the solicitor on which he had relied; and accepted the second respondent's explanation that the Bomaderry Property was his investment but that he had a concurrent motivation to provide comfortable secure accommodation for his mother (see [133]-[138]). His Honour concluded that the actual state of affairs that existed at the time of purchase of the Bomaderry Property was one in which the second respondent was intended to obtain absolute ownership of both the legal and beneficial interest (at [139]).
As to the alleged joint endeavour trust, his Honour concluded that the appellant's contributions to the property were minimal (at [138]; [143]-[145]), observing that the appellant had a tendency to exaggerate his contributions, crediting to himself payments for which he was not responsible and tending to minimise the contributions of others (at [142]).
The primary judge concluded that the appellant had not made out any quantifiable entitlement to reimbursement for any financial contributions and that his other contributions in the form of labour were on a small scale and did not rise to a level that corroborated a joint intention that the appellant have any proprietary interest in the property (at [144]). His Honour also considered that even if the appellant were entitled to reimbursement for his contributions those debts could be offset against moneys that he owed the second respondent (at [146]).

[3]

Appeal grounds

Of the grounds set out in his further amended notice of appeal, the appellant presses the following grounds: 1. The court erred in finding that the payments made by the First Respondent to the Second Respondent concerning the [Bomaderry Property] ("the Property") from 2014 to 2016 of approximately $700 per fortnight and from 2016 to 2017 of approximately $1771 per fortnight were rent, not mortgage, as such a finding was glaringly improbable, given the evidence led at hearing: a. The admissions made by the Second Respondent under oath in NCAT, concerning the nature of the payments on 15 February 2018; b. Centrelink Record showing that the First Respondent stopped claiming rental assistance shortly after the purchase of the Property on 4 February 2014. c. Suncorp Bank statements relied upon by the Appellant at hearing. d. The fact there was no other explanation as to how the Second Respondent, a part time university student obtained a loan for $248,000 other than with the assistance of the Appellant. e. That the Appellant and the First Respondent chose the Property to be purchased, and that the Second Respondent was a "rubber stamp". f. That the Second Respondent never contributed any of his salary towards the mortgage, it was always covered by the payments made by the First Respondent. g. The Appellant's evidence of an oral agreement in June and July 2013 that: i. The Property would be purchased in the Second Respondent's name. ii. The Appellant and First Respondent would be beneficial owners in the proportion of 50/50. iii. The First Respondent would pay the mortgage from Centrelink funds arising from the Appellant's carer's payment. iv. The Appellant would pay phones and utilities. v. The Appellant would maintain, and make improvements to the Property at his expense. 2. On the basis of appeal ground 1, the court erred in finding there was no common intention and / or joint endeavour and that the Appellant should hold a 50% interest in the Property. 3. Not pressed. 4. It was glaringly improbable that the court found that the Property was purchased for the benefit of the Second Respondent only, in circumstances where: a. The Second Respondent did not choose the Property, the Appellant and First Respondent did. b. Numerous improvements were made by the Appellant to the Property with his own two hands that had the effect of benefiting him only. c. The Second Respondent was a full time university student earning $216 per fortnight. 5. With regard to the Second Respondent's affirmed admissions in NCAT on 15 February 2018, the court erred in finding that the Second Respondent "only stated that his mother's rent had assisted him to pay the mortgage, not that his mother was making mortgage payments" as the court drew the wrong inference of fact as this inference was not available to the court. 6. The court erred in finding that the absence of any claim for rental assistance from Centrelink during the period 2014 to 2016 was "explicable on the basis put forward by" the Second Respondent" that rental assistance was not claimed because the tenancy agreement at that time was of an informal nature: a. Not pressed b. the Second Respondent was not responsible for claiming rental assistance. c. The First Respondent gave evidence, at odds with the court's finding that the Appellant was responsible for preparing the documents that were lodged with Centrelink. d. The matters referred to in 6(c) above were not put to the Appellant in crossexamination. 7. The court failed to give adequate reasons for finding the First Respondent was a reliable and consistent witness. The Court did not address the following issues of credit raised by the Appellant with respect to the First Respondent: a. Conflicting evidence about the conversations she had with the Second Respondent about the Property before it was purchased. b. Conflicting evidence about the nature of the payments made to the Second Respondent between 15 September 2016 and 17 May 2017 as either "financial assistance" .for the Second Respondent or "savings". c. Conflicting evidence with the Court's finding that the absence of any claim for rental assistance from Centrelink during the period 2014 to 2016 was "explicable on the basis put forward by" the Second Respondent that rental assistance was not claimed because the tenancy agreement at that time was of an informal nature, as the First Respondent gave evidence, at odds with the court's finding, that the Appellant was responsible for preparing the documents that were lodged with Centrelink. d. Illogical evidence about the Appellant's alleged financial control over her life. e. Inconsistent evidence about the bank accounts the First Respondent owned. f. Evidence that the residential tenancy agreement dated 1 April 2016 was signed at Bomaderry Post Office, inconsistent with an email she instructed her solicitors to send dated 8 December 2020 alleging she could not recall where the residential tenancy agreement was signed. g. Her own evidence that the Appellant "forced" her to create the Residential Tenancy Agreement, despite her and the Second Respondent relying upon the documents at the NCAT hearing on 18 February 2018. 8. The court failed to give adequate reasons for finding the Second Respondent was a reliable and consistent witness. The Court failed to address the following issues of credit raised by the Appellant in respect of the Second Respondent's evidence: a. Evidence under cross-examination that $7000 was paid on 14 October 2013 as a contribution from the Second Respondent's savings towards the Property despite not mentioning this amount in his Affidavit, and giving evidence that none of the monies that he received from his salary went towards paying off any loan repayments for the three year period from 2013 to 2016 apart from the first payment on 4 December 2013 of $700. b. Not pressed c. Evidence under cross-examination that another amount of $5,000 transferred on 18 September 2013 was payment for home loan banking related fees, which was never mentioned in the Second Respondent's Affidavit. d. Evidence under cross-examination that he worked as a private tutor in 2013 despite not mentioning any such job in the Second Respondent's Affidavit. e. Evidence of the Second Respondent's income (which appeared to be consistent with a full-time income) under cross-examination without reference to any supporting taxation returns or documents which was inconsistent with the evidence of the First Respondent that he was a "part time" tutor. f. How it could be reconciled that the Second Respondent obtained a $248,000 loan without the assistance of the Appellant. 9. The court erred in unduly intervening in the conduct of the hearing and palpably misused it's [sic] advantage thereby causing a miscarriage of justice when, during the cross-examination of the First Respondent His Honour asked leading questions of the First Respondent concerning the timing of her stopping the carers [sic] pension on or around 19 May 2017, and the coincidental ceasing of the $700 regular fortnightly payments (alleged by the Appellant to be for the mortgage, and the Respondents for rent) leading the witness to respond to His Honour's questions as "Yes. Yes. Very clear you explained to me, thank you".

[4]

Grounds 1-2, 4-6 - findings and conclusion re constructive trust claim

Grounds 1 and 2 were addressed together in the appellant's written submissions, the second ground (error in the findings that there was no common intention or joint endeavour that the appellant should hold a 50% interest in the Bomaderry Property) being predicated on the first (namely, the alleged error in finding that the payments made by the first respondent to the second respondent were in the nature of rent and not mortgage repayments). Grounds 4-6, though separate grounds, were largely covered in the appellant's submissions in relation to grounds 1 and 2. Therefore, it is convenient to consider all of these grounds together.

[5]

Appellant's submissions

The appellant emphasises that the appeal before this Court is by way of re-hearing and maintains his submissions at first instance as to the applicable principles giving rise to the claimed constructive trust. The appellant contends that if grounds 1-2 and 4 succeed then there should be a verdict in his favour.
The appellant maintains that the impugned findings (see the appeal grounds reproduced above) were glaringly improbable (invoking the principles articulated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) and, in his submissions in reply, referring to this as indicating that assessments of credibility based on observations and demeanour are the exception rather than the rule). In particular, the appellant submits that it is glaringly improbable (on the evidence as a whole) that the Bomaderry Property was purchased for the benefit of the second respondent only and that the arrangement up until April 2016 was one of "informal landlord and tenant".
In this regard, the appellant says that: he and the first respondent "house hunted" and chose the property together, and that the second respondent did not choose the Bomaderry Property; the second respondent merely "rubber stamped" the purchase (in the sense that the decisions to purchase the property were made by him and the first respondent); he (the appellant) dealt with the lawyers on the purchase; the second respondent was a university student; and the second respondent never contributed any of his salary towards the mortgage, it was always "covered" by the payments made by the first respondent. It should be noted that the respondents challenge many of the factual assertions made by the appellant in his submissions (see at [4]-[5] of the first respondent's submissions; [13]ff of the second respondent's submissions) to which the appellant has responded in his submissions in reply at [2].
The appellant argues in his submissions in reply that it is very common in "family type relationships" that the parties do not record their dealings on records like trust deeds (citing Kirby P (as his Honour then was) in Baumgartner v Baumgartner (1985) 2 NSWLR 406 at 417 in this context).
As to the nature of the arrangement in relation to the occupation of the Bomaderry Property after its purchase in late 2013, the appellant argues that the fact that the first respondent ceased claiming rental assistance from Centrelink from the time of the purchase (without, he argues, any financial incentive to do so) is inconsistent with any allegation of an informal lease; and places weight on the regular payments made by the first respondent that had the effect of covering the mortgage (maintaining his assertion that the later increase in payments was linked to the increase in the mortgage repayments). As noted above, at the hearing the appellant disputed the authenticity of the April 2016 residential tenancy agreement but, in any event, the appellant points out that rental assistance recommenced in April 2016 and he points to the cessation of the $700 fortnightly payments after he was evicted from the Bomaderry Property.

[6]

Respondents' submissions

Although the respondents were separately represented on appeal, it is convenient to consider their submissions together.
The respondents submit that it was not glaringly improbable that the Bomaderry Property was purchased for the benefit of the second respondent only. In this regard, both respondents cavil with the submissions of the appellant (at [61] of his submissions) to the effect that the appellant and the first respondent "house hunted" and chose the property together and the second respondent did not choose the property; that the second respondent merely "rubber stamped" the purchase; that the appellant dealt with the lawyers on the purchase; and that the second respondent never contributed any of his salary to the mortgage and it was always "covered" by the payments made by the first respondent.
I have noted above the second respondent's reference to evidence that he had searched for properties on the internet and had nominated Nowra as a desired location. As to the assertion that he "rubber stamped" the purchase, the second respondent points to the inaptness of that expression in relation to the purchase process. It is accepted that the appellant nominated the solicitor who acted on the purchase (said to be a long-term acquaintance of the appellant) but the second respondent points to his own evidence that he was busy with work at the time (and in any event says that it is clear that the solicitor invoiced the second respondent in relation to the retainer).
Most relevantly, given the emphasis placed by the appellant on the fortnightly payments made by the first respondent, the respondents say that the payments made by the first respondent did not have the effect of "fully covering the mortgage" because the payments varied from month to month from the commencement of the mortgage term; and that the bank statements do not support a consistently correlating change between the payments made and the amount of the mortgage repayments. The respondents contend that a common sense reading of the objective and contemporaneous material supports their evidence that the Bomaderry Property was purchased by the second respondent as an investment property in which his mother and the appellant (and later just his mother) could live and pay rent; and that the fact that he was a university student is irrelevant to whether he could purchase a property for another's benefit.

[7]

Determination

At the outset, it may be noted that the circumstances in which findings based on credibility assessments may be found to be erroneous are well established (Fox v Percy at [28] per Gleeson CJ, Gummow and Kirby JJ; as further explained by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [19]-[21]). To the extent that the primary judge's findings have been affected by impressions about the credibility and reliability of witnesses formed by his Honour having seen and heard them give their evidence, those findings may be overturned where there are incontrovertible facts or compelling inferences to the contrary, or where it is clear that the primary judge has palpably misused his advantage (see Fox v Percy at [130] per Callinan J, citing Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 at 479). It should also be noted that in Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785, Nettle and Gordon JJ at [119] endorsed the observations by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, and noted that "at least where the trial judge's decision might be affected by his or her impression about the credibility of the witness, whom the trial judge sees and hears but the appellate court does not, the appellate court must respect the attendant advantages of the trial judge".
That said, the challenge as to the finding that the payments by the first respondent to the second respondent were properly to be characterised as rent, not mortgage payments (ground 1), which the appellant identifies as the central issue on the appeal, strictly speaking is a challenge as to the legal effect of the arrangements between the parties (not a credibility finding per se though the factual findings on which it was based may have been informed by the credit findings made in respect of the witnesses).
Each of grounds 1 and 4 (and ground 2 since it is predicated on ground 1) invokes Fox v Percy principles, expressed by reference to findings being said to be glaringly improbable. Ground 5 is a complaint that a particular inference drawn by the primary judge was wrongly drawn and not available to him. Ground 6 impugns a particular finding including on the basis that the matters referred to in ground 6(c) were not put to the appellant in cross-examination. I deal with them in turn.
As to grounds 1 and 4, the appellant places weight on the three key pieces of evidence referred to above (those being the matters referred to in grounds 1(a)-(c)), namely, the so-called NCAT admissions; the Centrelink records showing that rental assistance was not claimed from shortly after the purchase of the Bomaderry Property; and the Suncorp bank statements.

[8]

Grounds 7 and 8 - adequacy of reasons for credibility findings

The complaint made by these grounds (as affirmed in the appellant's submissions in reply) is that the primary judge did not adequately provide reasons for the finding that the respondents were reliable and consistent witnesses. Complaint is made that his Honour addressed the inconsistencies in the appellant's evidence but not the respondents' evidence in the same way. In particular, complaint is made that there was no reference in the primary judge's reasons as to the numerous credit issues raised by the appellant's counsel in relation to the respondents' evidence. In the grounds of appeal, there does not appear to be a challenge to the credit findings themselves (although the submissions make numerous complaints as to inconsistencies and alleged illogical evidence with reference to the respondents' evidence); simply as to the adequacy of the reasons.

[9]

Appellant's submissions

The appellant accepts that reasons need not necessarily be lengthy or elaborate but says that in the present case it is impossible for him to understand why the respondents were held to be reliable witnesses given the numerous issues with their evidence, the inconsistencies exposed and the submissions made on his behalf. The appellant submits that the inadequacy of reasons of the primary judge was such as to lead to a miscarriage of justice (citing Pettitt v Dunkley [1971] NSWLR 376) and argues that, although it was open for his Honour to find against the appellant on credit, "the proper procedure should have been followed", so that he could understand that his reasons had been received and considered by the Court.

[10]

Credit of the first respondent

As to the first respondent, the appellant maintains that the credit issues and inconsistencies with respect to the first respondent's evidence were substantial; that her evidence was unreliable, unsatisfactory, inconsistent and illogical. The appellant submitted to the primary judge that the first respondent was evasive and had a selective memory when her answers did not suit her case.
The appellant says that the first respondent attempted to minimise or downplay any suggestion of conversations alleged to have been had with the appellant or second respondent prior to the purchase of the Bomaderry Property and that this was at odds with the objective evidence which the appellant says disclosed a plan which would have required forethought by all three parties in its execution.
The appellant points to the following inconsistencies or contradictions in the first respondent's evidence.
First, that the first respondent alleged that she never talked to her son about the Bomaderry Property at all then admitted that she talked to her son about building a shed on the premises; that she first alleged that her son searched for a property, then when taken to her affidavit said that she and the appellant started looking at properties in Nowra; and that she gave evidence that she spoke to her son about the Bomaderry Property only after her son bought it but admitted that there was a lot of organisation to do to purchase the property. The appellant says that it is not believable that the first respondent only spoke to the second respondent about the Bomaderry Property after it was purchased, when it is said that she also admitted that she chose the property herself and the second respondent was just a "rubber stamp". (The respondents cavil with the proposition that the first respondent stated that the second respondent was just a "rubber stamp".)
Second, reference is made to the first respondent's evidence as to financial matters. The appellant says that the first respondent deposed in her affidavit evidence that she started getting Centrelink payments on 7 February 2006 and for the next ten years the appellant kept her bankcard and controlled her finances; and that in cross-examination she alleged she did not have access to any money as at February 2006 and said that the appellant just kept her ANZ bankcard. The appellant points out that the first respondent then said that it was incorrect that from 7 February 2006 and onwards the appellant kept her bankcard. As to the allegation that the appellant was transferring the $700 payments from her ANZ account, it is noted that at [21] of her affidavit the first respondent stated that "Michael and I moved into the home in December 2013 and each fortnight I transferred $700 into Kevin's bank account for rent", and that the first respondent then alleged that the appellant had set up an automatic payment (having said nothing of this automated arrangement in her affidavit). The appellant says that the evidence given by the first respondent as to why that was not mentioned in her affidavit ("because is [the appellant] who told me that") is illogical.

[11]

Credit of the second respondent

Similarly, the appellant complains that submissions made by him as to the second respondent's credit were not addressed in the primary judge's reasons. The appellant raises the following matters in that context.
First, the appellant points to the second respondent's assertion that $7,000 paid on 14 October 2013 into his Suncorp bank account came from his own savings which was contributed towards the Bomaderry Property but that the second respondent did not mention that sum in his affidavit as a contribution to the property (and it is noted that the first respondent alleged that all the money initially contributed to the Bomaderry Property was gift money). Again, the complaint is that this evidence was never included in the second respondent's affidavit and that these matters were never put to the appellant in cross-examination; and it is submitted that it must be inferred that the second respondent never instructed his lawyers "in this matter" (i.e., as to this evidence) and that such evidence was a recent invention.
Second, the appellant says that the second respondent's evidence in cross-examination that the $7,000 was contributed towards the monthly repayment of the mortgage was inconsistent with the evidence he later gave that none of the moneys that he received from his salary actually went towards paying off any loan repayments for a three-year period from 2013 to 2016, apart from a first payment on 4 December 2013 of $700.
Third, the appellant says that the second respondent exaggerated the amount of money he earned as a part time private tutor in his evidence in cross-examination, not having mentioned in his affidavit that he had any job in 2013 as a private tutor. (The appellant sees an inconsistency here with the evidence from the first respondent that the second respondent was a part time private tutor in 2013.) The appellant says that the second respondent's evidence of his timetable in 2013 adds up to between 60-70 hours per week (taking into account university contact hours, self-study and work as a private tutor) and that on that evidence the second respondent would have been earning around $50,000 per annum (based on 10-20 hours per week at $50 per hour). It is noted that no tax documentation was adduced by the second respondent, nor any letters of offer or any bank documentation showing that he obtained a loan on this basis.

[12]

Respondents' submissions

As to the criticism made of the first respondent's evidence (ground 7), the respondents maintain that there is no evidence that the first respondent gave inconsistent illogical evidence or was evasive in questioning when the answers did not suit her case; nor that she had a selective memory. It is noted that the cross-examination of the first respondent was lengthy and the respondents point to difficulties that the first respondent had in understanding the questions put to her in English and in answering them in English (by way of example, reference being made to questioning as to the bathroom vanity at T 96.24-27). It is said that the first respondent was visibly confused at times (a submission that this Court cannot test, not having seen the witness give her evidence).
The respondents submit that the first respondent's evidence was consistent with the available objective contemporaneous evidence, her evidence being that the second respondent bought the Bomaderry Property for himself as an investment.
Insofar as the appellant argues that the first respondent was involved with mortgage payments after the departure of the appellant from the Bomaderry Property in May 2017, the respondents refer to an aide memoire provided to the primary judge ("Summary of Payments between the First and Second Defendants from 30/10/17 to 28/2/20").. The respondents also refer to the first respondent's evidence (about which it should be noted that the appellant complains that this was not put to him in cross-examination) that the appellant controlled her finances prior to their separation (see T 118.43); and her evidence that, after their separation, she needed to purchase furniture, a car and spend money on legal fees and that the second respondent assisted her with all of these purchases when she moved back to the Bomaderry Property from the women's refuge in 2017 (see T 132.48-133.22). They submit that none of this evidence is inconsistent with the objective, contemporaneous evidence.
As to the criticisms made by the appellant of the second respondent's evidence (ground 8), the respondents characterise the second respondent's evidence as being considered (not exaggerated). They refer to the specificity of the second respondent's evidence (referring to T 189.44ff; and the primary judgment at [93]-[125]) and say that there was no obligation on the second respondent to provide evidence of the "private tutor job" by way of affidavit evidence rather than at hearing (referring to T 193.29-35) and that the fact that certain evidence was not included in his affidavit does not make him an unreliable witness.

[13]

Determination

As made clear in the submissions in reply, these two grounds are complaints as to the adequacy of the reasons given by the primary judge for the credibility findings in respect of the two respondents.
In Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 at [102], this Court has recently considered the duty of judicial officers to give reason for their decisions, that being a manifestation of the principle that not only must justice be done, but it must also be seen to be done. It is not necessary here to restate in any detail what was there said.
Suffice to note that in the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but, rather, the minimum acceptable standard; and that the standard is not one of perfection.
The appellant here accepts, as I understand his submissions, that the duty to give reasons does not require an elaborate or lengthy exercise. His complaint, however, is that there was not an adequate description of the process of reasoning in order to expose the primary judge's reasons for making the credit findings in relation to the respective respondents so as to permit him to see that his submissions were received and understood. (This complaint follows the reasoning in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA (as his Honour then was) at 279, it being there said that the purpose for the giving of adequate reasons is to enable the parties to see the extent to which their arguments have been understood and accepted, as well as the basis for the relevant decision.)
More recently, in Alexandria Landfill Pty Ltd v Transport for New South Wales (2020) 103 NSWLR 479; [2020] NSWCA 165 at [29], this Court said that: … Having regard to the purpose of giving reasons, the standard is properly identified negatively: it must be shown that the decision has not been reached capriciously or arbitrarily, but rationally. The reasons must thus reveal that all material factors have been identified and addressed, and that no prohibited considerations have been operative. If there is an available process of reasoning from the evidence to the outcome which has been adopted, either expressly or by implication, the appellate court should be slow to reach the conclusion that the function of the trial court has not been exercised according to law.

[14]

Appeal Ground 9 - alleged undue intervention in conduct of the hearing

The final appeal ground appears to be a complaint as to denial of procedural fairness (although in submissions the appellant goes so far as to suggest that the intervention by the primary judge in the conduct of the hearing created an apprehension of bias on the part of the primary judge).

[15]

Appellant's submissions

The appellant cites the well-known passage of Lord Denning in Jones v National Coal Board [1957] 2 QB 55 (National Coal Board) at 64 as to when a judge "drops the mantle of a judge and assumes the robe of an advocate"; and refers to Galea v Galea (1990) 19 NSWLR 263 (Galea).
Although in his written submissions, the appellant invited this Court to look at the whole of the way the trial was conducted (in context of the numerous credibility issues raised by the appellant, which he complains were not referred to in the primary judge's reasons), in oral submissions the appellant could point only to one passage in the course of the first respondent's cross-examination about which complaint was made, that being as follows (in which the questions were asked by his Honour): Q: Madam, just help me with this. The $700 a fortnight, as I understand your evidence, was paid from your ANZ account. Is that correct? A: That's - yeah, before May 2017. Q: What other income was paid into the ANZ account other than the carers pension? A: None. Q: None? A: None. Q: Is what you're telling me that the only money going into the ANZ account was the carers pension? A: Yes. Q: The money for the $700 fortnightly deposit came out of the ANZ account? A: Yes. Q: When your ex-husband left the property-- A: Yeah. Q: --is that when you stopped receiving the carers pension? A: No. No. Q: When-- A: I stop - yeah. Q: When you stopped receiving the carers pension, there was no more money coming into the ANZ account; is that right? A: Yes. Q: Your income was paid into - that's your job income. A: Yeah. Q: Your job income was paid into your Westpac account? A: Yes. Q: The only place that what you call the rental payments could come out of was the Westpac account, is that what you're telling - A: Yes. Yes. Very clear you explained to me, thank you.
In his submissions in reply, the appellant expands on this ground of appeal, invoking the principle of open justice and asserting that the intervention came at a crucial time in the cross-examination (where counsel was seeking to put to the first respondent that she had stopped the $700 payments in May 2017 because she had finally ousted the appellant from the Bomaderry Property and saw herself as the owner for all intents and purposes).
The appellant says that given the importance of these issues to the main question in the case (which he characterises as being whether the payments made by the first respondent were mortgage or rent), there has been a miscarriage of justice (by reason of the intervention) such that the judgment should be set aside.

[16]

Respondents' submissions

The respondents maintain that the transcripts demonstrate that the questions from his Honour were not excessive and were reasonable; that, during the proceedings his Honour intervened to ask questions either when it was clear that counsel was confusing the witnesses or on points that his Honour needed to clarify in order better to understand an issue in the case, and that the transcript shows no bias toward any party's case.

[17]

Determination

In Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 (Nguyen), this Court had occasion to consider whether the trial judge had there descended into the arena (or the fray) and had adopted the mantle or robe of an advocate or had stood in the advocate's shoes (to adopt various of the metaphors commonly used in cases where there is said to have been excessive judicial intervention). It is not necessary here to repeat the analysis there set out as to the respective roles of judge and counsel (see Yuill v Yuill [1945] P 15; [1945] 1 All ER 183 per Lord Greene MR at 20 and the observations to which the appellant has here referred that were made by Lord Denning in National Coal Board at 63-64). I also there noted the summary of guidelines set out in Galea, to which the appellant has also referred, by Kirby ACJ (with whom Meagher JA agreed) in relation to complaints of excessive judicial interference (at 281-282), the first of those being that the test to be applied is "whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair" (his Honour there referring to E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146).
Relevantly, in Galea, Kirby ACJ noted that greater latitude in questioning will be accepted where a judge is sitting alone and that, where a complaint is made of excessive questioning, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion" (his Honour there citing Sir Robert Megarry, "Temptations of the Bench" (1978) 16 Alta L Rev 406 at 409; and also referring to U Gautier, "Judicial Discretion to Intervene in the Course of the Trial" (1980) 23 Crim LQ 88 at 95-96 and cases there cited). In this regard, his Honour noted that the matters to be considered include the context of the whole trial, the number, length, terms and circumstances of the interventions and the point at which they occur (see the principles set out at 4 and 5 of his Honour's reasons at 281).
The principles articulated in Galea were considered in the Full Court of the Supreme Court of South Australia in R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3 by Kourakis CJ, where his Honour (in a case involving intervention by a judge sitting without a jury in a criminal trial), identified the following three basic grounds on which excessive judicial intervention would give rise to a miscarriage of the trial, those being (see [38]): (i) where the questioning unfairly undermines the proper presentation of a party's case; (ii) where the questioning gives an appearance of bias; and (iii) where the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (this being referred to as the "dust of conflict" ground). They were considered in the Court of Criminal Appeal in Ellis v R [2015] NSWCCA 262 (Ellis) at [65] (Bathurst CJ; R A Hulme and Garling JJ), where the Court emphasised that the ultimate question is always whether the intervention was unjustifiable and resulted in a miscarriage of justice.

[18]

Conclusion

For the above reasons, I propose the following order: 1. Appeal dismissed with costs.
BRERETON JA: An appeal such as the present to this Court, governed by Supreme Court Act 1970 (NSW), s 75A, is by way of rehearing. On such an appeal, this Court has the powers and duties, including powers and duties concerning the drawing of inferences and the making of findings of fact, of the court of first instance. As the High Court explained in Lee v Lee ("Lee"): [1] "A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law [Fox v Percy (2003) 214 CLR 118 at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686 [43]; 331 ALR 550 at 558]. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" [Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687 [43]; 331 ALR 550 at 558-559] is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts [Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at 434-435 [144]; Thorne v Kennedy (2017) 263 CLR 85 at 104 [42]]. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge" [Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs A-CJ, Jacobs and Murphy JJ; see also Fox v Percy (2003) 214 CLR 118 at 127 [25]]."
Thus in this appeal, notwithstanding the numerous and elaborate grounds of appeal, the essential issue is whether on reviewing the evidence this Court is persuaded, as the appellant contends and contrary to the conclusion of the primary judge, that the second respondent held the Bomaderry Property upon trust for the appellant and the first respondent, whether pursuant to a joint endeavour constructive trust, a common intention constructive trust, or a proprietary estoppel.

[19]

Endnotes

(2019) 266 CLR 129; [2019] HCA 28 at 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ).
Primary judgment at [34]-[37].
Primary judgment at [129].
If the purchase price is funded in whole or in part by moneys raised on mortgage, the mortgage moneys are treated as a contribution by the person or persons liable to repay them: Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 at 251 [9] (Gibbs CJ), 257-258 [7]-[8] (Mason and Brennan JJ), 267-268 [4] (Deane J).
DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 139 at [27] Crispin P, Connolly and Selway JJ ("DW v The Queen").
(1987) 10 NSWLR 247 at 280. See also R v Keyte (2000) 78 SASR 68; [2000] SASC 382 at [56] (Doyle CJ; Williams and Wicks JJ agreeing); R v Power [2003] SASC 77; (2003) 141 A Crim R 203 at [57], [59], [63] - [65] (Perry J, Williams and Bleby JJ agreeing); DW v The Queen at [28] (Crispin P, Connolly and Selway JJ); R v Barrowman (2007) 96 SASR 294; [2007] SASC 28 at [6] - [7] (Vanstone J, Sulan and Layton JJ agreeing); Mikus v Chief of Army [2020] ADFDAT 1 at [71] (Logan J, Brereton JA and Barr J). 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: 18 April 2023

As to issue (i) (1) It was not glaringly improbable that the Property was purchased with the intention for the second respondent to retain both the legal and beneficial interest: [78]-[80] (Ward P), [170] (Brereton JA), [186] (Mitchelmore JA). The evidence before the primary judge did no more than provide proof of payments between the first and second respondents, rather than support the suggestion that the payments were for mortgage repayments, as opposed to rent: [73]-[75] (Ward P) [170] (Brereton JA), [186] (Mitchelmore JA). Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied. (2) When considering the application of the Browne v Dunn principle, it is necessary to consider not only the matters put to the appellant in cross-examination, but also the issues raised by the pleadings and the parties' submissions and relevant to consider the credibility and reliability of a party: [88] (Ward P), [170] (Brereton JA), [186] (Mitchelmore JA). Here, the appellant was cross-examined on a broad enough topic to ensure that the appellant and his counsel could be under no misapprehension as to the direction that was taken in cross-examination by the first respondent at trial: [91] (Ward P), [170] (Brereton JA), [186] (Mitchelmore JA). The appellant need not be cross-examined on the precise point for there to be compliance with the rule in Browne v Dunn. Browne v Dunn (1893) 6 R 67; Scott v Scott [2022] NSWCA 182, applied.

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