Tamer v Official Trustee in Bankruptcy

Supreme Court of NSW|2016-05-09|Before: Sackar J

Nature of Proceedings

These proceedings concern an application for a declaration that the Plaintiffs are the beneficial owners of the whole of the interest in a property located at Auburn N.S.W. ('the Property'), and that the Property is held on trust for them by reason of either a constructive or resulting trust. The Property was until 8 July 2015 registered in the name of Rana Tamer, the Plaintiffs' daughter. Rana was made bankrupt on 29 February 2012, on which date the Defendant holds that the Property vested in the Defendant by operation of the Bankruptcy Act 1966 (Cth).
Further or alternatively, the Plaintiffs seek a declaration that the Defendant is estopped from denying that the Plaintiffs are the owners of the whole of the beneficial interest in the Property, and is estopped from relying on its legal right to the Property.
By reason of these two claims, the Plaintiffs also seek an order that the Defendant transfer the Property to the Plaintiffs, and that this be charged in favour of the Plaintiffs to the value of the Property payments plus interest.
Alternatively, a declaration is sought that the Defendant is required to give restitution to the Plaintiffs in respect of the Plaintiffs' contributions to the Property in the form of payments of the mortgage, rates and expenses for the Property and for improvements made to the Property from 7 October 2009 to date.
The Defendant denies that relief should be granted. By way of cross claim, the Defendant seeks orders that: 1. the Cross-Defendants vacate the Property within 21 days of the date of the making of this order; 2. the Cross-Claimant have leave to issue a Writ for Possession immediately in respect of the Property; 3. Pursuant to section 74MA of the Real Property Act 1900 (NSW), the Plaintiffs' registered caveats (AG33590M) over the Property be removed from its title.
The key issues to be determined in these proceedings can thus be summarised as pertaining to whether or not a trust can be said to have existed, and, should that question be resolved in the negative, the degree to which the granting of restitutive relief or estoppel would be appropriate at law.

Factual Background

The Plaintiffs, Mr Ali Tamer and Mrs Susan Tamer, were born in Lebanon in 1954 and 1958 respectively, and migrated to Australia in 1979 after their marriage. They have ability to speak English, and a lesser ability to read it. Their daughter, Rana Tamer, was born on 5 July 1982. Rana is one of seven children, two of who passed away in 2007.
In 1985, the Plaintiffs purchased the Property at 30 Marion Street, Auburn N.S.W. (Folio Identification Number 29/16/1389) ('the Property') for approximately $70,000.00. The Plaintiffs paid the purchase price by providing $5,000.00 in cash and the remaining balance with moneys borrowed from the State Bank secured by a mortgage ('the State Bank Mortgage'). The Plaintiffs moved into the Property where they raised their children. They presently live at the Property with their son Muhssen and his wife.
From 1985 until mid 1995, the Plaintiffs made the payments for the State Bank Mortgage of approximately $500 per month. In about 1992, the Plaintiffs' renovated the Property by adding extensions to it. They spent in the vicinity of $28,000 - $30,000 following a payout from Ali Tamer's former employer, Ford Motor Works Australia.
In about 1995, the Plaintiffs refinanced the mortgage on the Property with the Commonwealth Bank of Australia and further mortgaged the Property ('the Commonwealth Bank Mortgage') and borrowed an additional $15,000 - $20,000. After this refinance the total loan from the Commonwealth Bank was $60,000, and the Plaintiffs made the payments to the Commonwealth Bank Mortgage of approximately $500 - $650 per month until 2003.
In 2003, Mr Moussen Tamer (Ali Tamer's brother) requested a loan from Ali of $215,000, followed by a second loan of $50,000 in 2004 for the purposes of starting a business. To facilitate this, the Plaintiffs borrowed about $300,000 to $320,000 against the Property from a finance company.
Throughout 2004, Ali's brother had been repaying him at a rate of approximately $2,400 per month. The Plaintiffs subsequently refinanced the Property with National Australia Bank in 2004. That enabled them to loan Mr Tamer's brother a further $50,000. However these repayments had ceased sometime between 2005-2007, and as a result the Plaintiffs subsequently began to default on their mortgage repayments. By 2007, the mortgagee (the National Australia Bank) was sending correspondence to the Plaintiffs threatening possession proceedings. The Plaintiffs sought to increase the loan over a longer period in order to reduce the monthly mortgage payable on the Property to a level which was affordable to them, ideally over a thirty year period. They were unable to do so due to their age.
In 2007 two of the Plaintiffs' children died. In April one of their daughters Manal, who was disabled, died. In October 2007 another daughter Nessrin died of leukaemia. She had been in hospital for most of 2007. During 2007 Mrs Tamer became depressed and Mr Tamer decided to give up work to care for her. From that point on Mr Tamer was receiving pension benefits and has not returned to work. Mrs Tamer also receives a pension.

Another Refinance and Transfer in 2009

By 2009 the mortgage repayments were approximately $3,500 per month. Due to a number of defaults the mortgagee had commenced possession proceedings.
During about April or May 2009, Rana and the Plaintiffs had a discussion concerning transferring the property into Rana's name. Rana facilitated a refinance with RAMS. On 24 August 2009, Rana and the Plaintiffs entered into a contract for the sale of land in which the Property was transferred to her, in order to increase the loan period and bring down the mortgage repayments. This was because Rana's age and earning capacity meant that she was in a position to negotiate a longer term facility with lower monthly repayments. The Plaintiffs signed a transfer on 7 October 2009.
Subsequent to the refinance, the Plaintiffs with the assistance of their son, Muhssen made the mortgage payments (at approximately $2,200 per month) and paid the council rates and water bills. They also claim to have expended a good deal of effort and expense at making further improvements to the Property.
By 6 January 2010, the RAMS mortgage began to fall into arrears. Over the course of the loan, Rana was sent numerous arrears notices and letters of demand. Hardship applications were made and accepted and arrears were capitalised. On 8 April 2014 Rana was granted an early release of superannuation funds, which she applied to the arrears of the mortgage.
In or about mid-September 2010, Rana was terminated from her employment on suspicion of defrauding her then employer, Combined Insurance Company Australia. Charges were ultimately laid and she was given a two year suspended sentence. A civil judgment against her was obtained by default in the District Court for an amount of approximately $212,000 on 17 December 2010.
On 24 January 2011, Rana's solicitor, Mr Sam Abbas, registered a caveat over the Property. The parties to that caveat (AG33590M) were listed as the Plaintiffs and their son Muhssen. The caveat was said to be an interest in the Property due to 'substantial financial contribution' by virtue of the following: "The registered proprietor holds the land as trustee for Ali Tamer, Susan Tamer and Mohsen (sic) Tamer. Since January 2010 the three caveators have been making all financial contributions in payment of the mortgage, payment or rates and fees, and towards the upkeep of the premises."

Rana's Bankruptcy

By virtue of her inability to pay the civil judgment entered against her, Rana was declared bankrupt on 29 February 2012.
On 5 March 2012 when telephoned by Ms Bhutkar from the Defendant, Rana asserted the Property was owned by her parents and that they had been making the mortgage payments. However in her Statement of Affairs completed on 4 April 2012, Rana in effect stated she owned the Property and there were no other owners of the Property.
On 18 November 2014 the Defendant wrote to the Plaintiffs (and Muhssen) requesting full details of the caveat and outlining its power to sell the Property. A further letter was sent on 28 November 2014.
Rana was discharged from bankruptcy on 5 April 2015 by operation of law. On 15 April, the Plaintiffs were notified that the Defendant was not satisfied they held a caveatable interest over the Property, and on 20 May 2015 made a request for the Plaintiffs to vacate.
On 19 June 2015, the Plaintiffs commenced these proceedings. The Defendant was registered on title as registered proprietor of the Property on 8 July 2015.

Trust Property and Bankruptcy

Determining whether or not a trust exists is of fundamental importance in these proceedings as it will have decisive bearing on deciding what assets may be recoverable by the Official Trustee in Bankruptcy. Under s 116(2)(a) of the Bankruptcy Act 1966 (Cth), property held by a bankrupt on trust for another person is excepted from the property divisible among the creditors.

Creation of Trust

A trust, as Deane J said in Muschinski v Dodds [1] (at 613), is an institution that requires a number of "staple" ingredients: subject matter, trustee, beneficiary (or conceivably, purpose) and personal obligation attaching to the property.
When seeking to establish the existence of an express trust, construing the true and actual intentions of the parties is of fundamental importance; a process in which a broad array of evidentiary factors can be employed to make such a determination. The point was made in Byrnes v Kendle [2] , where Gummow and Hayne JJ held: "Where an express inter vivos trust respecting land or any interest in land is manifested and proved by some informal writing, or an express inter vivos trust of personalty is said to have been created by informal writing or orally, then a dispute as to the presence of the necessary intention, despite inexplicit language, is resolved by evidence of what the Court in Kauter v Hilton [3] identified as 'all the relevant circumstances'".
In such a case objective intentions, rather than subjective ones, are relevant in proving an intention to create a trust: "A settlor must, of course, possess the necessary intention to create a trust, but his subjective intentions are irrelevant. If he enters into arrangements which have the effect of creating a trust, it is not necessary that he should appreciate that they do so; it is sufficient that he intends to enter into them". [4]
Of course no express trust is pleaded or relied upon in this case.

Existence of a Constructive Trust

A constructive trust is an institution or remedy used to designate the basis for granting forms of equitable relief which are to some degree equivalent or analogous to relief that would be available against an express trustee for breach of trust. [5] It is distinct and is typically remedial in nature, and is usually imposed by operation of law when it would be inequitable, by reference to established equitable principles, for a defendant to deny the obligations of trusteeship. [6] It differs from the resulting or implied trust. Actual intention is clearly relevant, including whether the relevant participants had a common intention. [7] However the absence of an actual or presumed intention will not prevent a court from declaring a constructive trust to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle. [8]
There is a wealth of case law to support the proposition that a constructive trust may be imposed upon a legal entitlement to property in order to prevent a person from asserting or exercising his or her legal right in respect of that property in circumstances where the particular assertion or exercise of it would constitute unconscionable conduct. [9] It is important to note that unconscionability serves as the benchmark criterion for determining the propriety of the award of a constructive trust. As Deane J stated in Muschinski v Dodds, they are not 'mediums for the indulgence of idiosyncratic notions of fairness and justice' [10] , and unlike other common law jurisdictions such as Canada [11] , go beyond unjust enrichment as a sole basis. Further that case recognised the need of equitable intervention where the substratum of a joint relationship or endeavour is extinguished 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 where it would be unconscionable for that other party to retain a benefit with respect to the relevant property not commensurate with his or her contribution. [12] In Koh v Chan [13] , this point was taken further when it was decided that the unconscionability criterion dictates that a constructive trust may be imposed even if this is contrary to the express or implied intention of either or both of the parties.
In contrast to the common intention constructive trust, the Baumgartner constructive trust does not require the court to infer the intentions of the parties from the contributions they have made to the relationship. What is called for is merely an analysis of the parties' financial and non-financial contributions.

Existence of a Resulting Trust

While resulting trusts must satisfy the same certainties as their express counterparts, they do not attract the same stringent formalities. A resulting trust is not imposed by law against the intentions of the settlor but gives effect to his or her presumed intention. [14]
In Calverley v Green, Gibbs C.J. said: [15] Where a person purchases property in the name of another, or in the name of himself and another jointly, the question whether the other person, who provided none of the purchase money, acquires a beneficial interest in the property depends on the intention of the purchaser. However, in such a case, unless there is such a relationship between the purchaser and the other person as gives rise to a presumption of advancement, i.e., a presumption that the purchaser intended to give the other a beneficial interest, it is presumed that the purchaser did not intend the other person to take beneficially. In the absence of evidence to rebut that presumption, there arises a resulting trust in favour of the purchaser. Similarly, if the purchase money is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship, presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such - not, e.g., as a loan. Consistently with these principles it has been held that if two persons have contributed the purchase money in unequal shares, and the property is purchased in their joint names, there is, again in the absence of a relationship that gives rise to a presumption of advancement, a presumption that the property is held by the purchasers in trust for themselves as tenants in common in the proportion in which they contributed the purchase money.

Mistake and Restitution

So far as these proceedings are concerned, the primary ground upon which a remedy of restitution may be made available is on the basis of mistaken payments. In equity, 'mistake' encompasses both a positive but mistaken belief in an existing matter and also ignorance of an existing matter, however it does not encompass a misprediction about future matters. [16]
The courts no longer draw distinctions between the type of mistake that can ground recovery in restitution [17] . However, coincidently with the recognition of a broader basis of recovery for mistake, the courts have recognised new defences such as change of position, to place appropriate limits on recovery. [18]
A payment is prima facie recoverable in restitution on the ground of mistake of law or mistake of fact where the mistake caused the payment. [19] A Plaintiff's negligence in failing to properly investigate the circumstances of the payment does not preclude recovery in restitution. [20] Furthermore, a demand for repayment is not a prerequisite of a cause of action based on mistake for recovery in restitution. However, a mistake made 'voluntarily' will not be recoverable as a mistaken payment. [21]
Restitution may also be granted should a mistake of law be made out, should there have been a mistaken belief by the payer that the payee is legally entitled to the payment [22] . Once unjust enrichment is recognised as the basis of recovery, the nature of the mistake becomes irrelevant.

Estoppel

In Waltons Stores (Interstate) Ltd v Maher [23] , the application of estoppel in Australian law was affirmed as an equitable doctrine that will come to the relief of a party who has acted to his or her detriment on the basis of some assumed state of affairs in relation to which the other party to the transaction has played such a part in the adoption of the assumption that it would be unfair or unjust if that other party were left free to ignore that assumption. Equity will intervene and give relief to the Plaintiff in such a case on the basis that it would be unconscionable conduct on the part of the Defendant to ignore the assumption [24] .
According to the test as outlined in Brennan J's judgment in Waltons Stores at [388], an equitable estoppel will arise when the Plaintiff assumes a particular legal relationship exists with the Defendant from which the Defendant is not free to withdraw. The Defendant must have somehow induced that assumption. There must be reliance on the part of the Plaintiff and the Defendant must know or intend that the Plaintiff will act on that assumption. The Plaintiff of course must also act to his or her detriment.
In the High Court of Australia's recent decision in Sidhu v Van Dyke [25] , it was held that it was not the breach of promise, but the promisor's responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise. Gageler J said that a party needs to 'establish that having the belief and taking the belief into account made a difference to their taking the course of action or inaction: that they would not have so acted or refrained from acting if she did not have the belief'. [26]

Overview

It is clear the Tamer family is close knit. The evidence really only permits of one view, namely that the Property was to be at all times the family home. That has been the position since 1985 and continues to be so. The evidence would suggest that all children lived there at one time and one still does. For reasons which I address below in some detail I found Rana's evidence confused, ambiguous and in some respects difficult if not impossible to reconcile with contemporaneous documents and hence in some respects unreliable. However, I generally accept as truthful the evidence of her brother and father. It is plain on the evidence that mortgage payments were not always made or made on time. Indeed prior to 2009, Mr and Mrs Tamer were facing legal action over non payment of their mortgage. This was largely due to Mr Tamer giving up work to care for his wife. A similar pattern emerged in the evidence after 2009. The clear impression I have formed is that all of the Plaintiffs' children regard the Property as in fact belonging to their parents and some of them, Rana and her brother being two have done all that could be done to maintain that position.

Rana Tamer

Ms Rana Tamer ('Ms Tamer') is a daughter of the Plaintiffs. She provided two affidavits to the Court, one dated 12 October 2015 and the other dated 12 April 2016.
She has a Bachelor of Teaching from Macquarie University. After completing her studies in 2004 however she commenced working as a claims assessor for Combined Insurance in Sydney.
Until she married in December 2014 she lived with her parents at the Property. She has since moved to Greenacre to live with her husband. She recalls her father telling her that his brother was not making repayments in respect of a loan which her father had provided to him. She asserts that she and her brother Abraham flew to Melbourne to talk to their uncle who simply indicated that he could not pay the moneys back. This evidence was unchallenged.
As a result of a conversation with her father in 2008, Ms Tamer asserts that she suggested that her father refinance the Property so as to bring the interest and hence the repayments down. Her father told her that he could not because of his age, but during discussions Ms Tamer suggested to him that the Property could be put into her name. She told him she could negotiate a longer loan period and hence a lower interest rate, with the anticipated impact on the amount of monthly repayments. I am satisfied such a conversation took place.
She asserts that at the time of her making the suggestion, she thought that swapping over the names on the title of the Property would be a simple matter and that she did not understand in effect how a refinance would actually work. Again I accept that evidence.
As a result of the discussion she had with her father, Ms Tamer asserts that during mid 2009 she approached RAMS to enquire as to the possibility of a refinance. She knew someone who worked at RAMS and she made contact with him.
She said that a person from RAMS came to the Property. She and the RAMS representative had a meeting during which it is clear that she provided him with certain information. As a result he completed forms in her presence which she then signed. This is not controversial.
She asserts that prior to, or perhaps during the meeting, Ms Tamer had learned that the only way a refinance would occur is if the Property were transferred into her name. She was referred to a solicitor to attend to the paperwork in connection with the transfer. She retained at RAMS' suggestion, Platinum Lawyers who prepared the contract and transfer documents for her. She took the documents to her parents at the Property for them to sign them.
Ms Tamer suggests that there was no discussion about the documents and that after her parents had signed she took them back to a Mr Robert Nasser at Platinum Lawyers. Again I accept this evidence.
In her affidavit of 12 October 2015 at [19] Ms Tamer asserted that at no time did any moneys change hands between herself and her parents in relation to the transfer of the Property. That is strictly true perhaps but by no means the full story. She also asserted at [20] that her sole intention in undertaking the transaction was not to become the owner of the Property but simply to in effect maintain ownership in the hands of her parents in order to reduce the mortgage costs. I will return to this assertion. In addition, she asserted at [22] that after the refinance had occurred the mortgage payments were $2,200 on an interest only basis.
After the refinance, Ms Tamer stated that her father gave her $2,200 in cash each month to pay the mortgage. She also asserted that during October/November 2010 she and her brothers Muhssen and Abraham and her sister Abbey wanted to make a gift to their parents to commemorate the deaths of their sisters Nessrin and Manal. As a result they spent some $17,000 putting a pool in their back yard. Ms Tamer asserts that her father helped with some of the labouring in relation to the works.
She asserted that at all times whenever her father gave her money for the mortgage he would either pay it into her bank account or alternatively straight into a RAMS account.
Ms Tamer accepts that in 2012 she was made bankrupt by her former employer, but notwithstanding her bankruptcy she asserted her father continued to give her money for the mortgage. She continued to pay moneys into the RAMS account. She asserts that in the "month or so" after her bankruptcy she called the office of her trustee and informed a person (a female) that the Property was "only in her name because her parents put it in her name to refinance to bring the interest down and that it was a family property and had been for many years".
In November 2014 she asserts that she opened an account with Westpac and signed a direct debit form with RAMS to directly debit from that account moneys for the mortgage repayments.
In her short second affidavit at [4] she relevantly asserts that she was discharged from her bankruptcy on 5 April 2015.
Pursuant to leave given Ms Tamer was briefly orally examined in chief. She clarified that in relation to the Westpac account which she opened in November 2014, there was only one account which she had opened. It was simply to facilitate the payment of the RAMS mortgage. She was shown certain bank statements and asserted that she made none of the deposits into the account and that each of the deposits had been made by her father, (T32/35). However, she clarified that again by indicating that it would either be her father or her brother but she could not be certain of the precise identity of the depositor, (T32/45). She was not present when the funds were deposited, but she denied making any of the deposits. She also asserted that she had given the debit card to her father, (T33/20-25).
By 2014 the repayments had risen to $2,700 per month, (T34/10-15).
Ms Tamer was cross examined. She conceded that she was terminated from her employment at Combined Insurance Company on the basis that she had defrauded her employer by falsifying claims. She acknowledged that in doing so moneys were paid out to what were (presumably fictitious) individuals, (T38/27-47). In addition, she agreed that she had originally denied the charges and then admitted them and that she had received a two years suspended sentence which was still being served, (T39/1-17). She acknowledged that she had not told her present employer about those events.
She accepted that when making declarations in documents, in particular to RAMS for the purposes of the refinance, that she had made declarations as to the truth and accuracy of certain statements and that she fully appreciated that RAMS would rely upon her statements in the context of the refinancing, (T39/30-40).
I should note in passing that on a number of occasions during Ms Tamer's cross examination I was persuaded by counsel for the Plaintiffs that I should give certificates pursuant to Section 128 of the Evidence Act 1995 (NSW).
It was put expressly to Ms Tamer and she accepted that in the context of signing a declaration in respect of the RAMS refinancing, she had understood that a line drawn through a particular page in the form had the effect of representing that the Property was not the subject of a trust, (T42/1-15, CB1, 297).
She also acknowledged that when she signed documents relating to the acceptance of the RAMS refinancing proposal that she accepted she signed a declaration to the effect that she was not signing as a trustee, (T43/30, CB2, 408).
She also acknowledged that she had made application for a first home owner's grant and that by doing so she was declaring that she was in fact the true owner of the Property and further declared that the Property was not held subject to a trust, (T44/5-40).
She agreed that she was terminated from her job on 13 September 2010. It was put to her that she had had a conversation with the representative of RAMS in which she told that person that she resigned due to personal reasons. She asserted that she felt she did not have to tell RAMS the truth in relation to the circumstances of her dismissal, (T45/25-30).
It was put to Ms Tamer that the loan then fell into arrears because she was no longer employed. It was put to her that on 22 March 2011 she had a conversation with RAMS to discuss a proposition of paying $1,000 a month off the arrears. She could not remember having done this. The particular diary note (CB2, 444), on its face suggests that Ms Tamer advised that she wanted to pay $1,000 off the arrears and that she was going to attempt to access her superannuation account and that her parents were "now" going to help her out with the mortgage.
When pressed on this topic Ms Tamer indicated that at or about this time she was going through her court case and her father was paying her lawyer's fees and also trying to pay the mortgage and there were cash flow difficulties as a result, hence she made an application to make smaller payments, in order to assist her parents. Although she could not remember having done so, I am satisfied that this is precisely what she did do. I also accept that there were cash restraints as a result no doubt of her having to face on any view what were serious criminal charges. She said her father had to borrow additional funds to pay for her lawyers.
It was also put to her that on two occasions she used moneys otherwise set aside as superannuation in order to appease the mortgagee in relation to outstanding mortgage payments. She agreed with this suggestion.
It is certainly true that from the contemporaneous records produced (CB2, 431), on a number of occasions when discussing outstanding mortgage payments she had indicated, for example that she would be obtaining assistance from her parents. On a number of occasions when asked about such records she indicated that she had no recollection. She could not recall for example making hardship applications nor could she recall in that context indicating that not only would she get assistance from her parents but that she would repay them, (T48/25). Importantly however, she did not deny that she may have made such statements. She insisted however, when asked, that at all times she had behaved truthfully and honestly in relation to her dealings with RAMS, (T48/40-45). I am clearly of the view she did not.
She was taken to a document (at CB1, 371) which is a settlement letter following the refinance with RAMS. She acknowledged that the full extent of the loan was $429,660 of which $376,612.57 was paid to National Australia Bank for the purposes of discharging the mortgage. She accepted that her parents received $11,608.24 and she received $25,374.82 with varying other smaller amounts going to Sydney Water, Auburn City Council and lawyers. She accepted that she was able to receive the moneys because she had indicated that she was eligible for a first home owner's grant, (T50/25). She agreed that she used the money to pay off her car and that none of those moneys were used for repayments on the mortgage.
She agreed that the loan that she managed to procure from RAMS was for a 30 year period and that her parents were in their 50s at the time she got the loan. It was put to her that she understood that this was the reason why they could not get a loan, (T54/5-10). It was also put to her that it did not matter that there was no mechanism to transfer the Property back to her parents. She responded by stating that it was "always going to be their house", (T54/19). She agreed that she did not entertain any concept that her parents may die when the Property was transferred or what would happen to the Property upon their death, but she asserted that she would have to divide the Property up with her family, (T54/30-35).
As I have already observed she accepted that on two occasions she rolled her superannuation funds into the mortgage repayments. Once on 11 May 2011 and once again on 8 April 2014, (T54/38-44). She however asserted that her parents paid some moneys back to her in cash funds, (T55/10). She agreed however that no such transaction was ever documented as the payments were all in cash.
She agreed that many letters were received from RAMS alleging default in repayments, and further letters of variation capitalising the arrears. She had no recollection of these things occurring however there is an abundance of contemporaneous materials to that effect and I am satisfied that is precisely what was occurring from time to time. Of notable significance, at CB2, 667, there is an example of such a variation document signed by Ms Tamer on 21 October 2014.
It was put somewhat forcefully to Ms Tamer that she had agreed that she had told RAMS the truth in respect of the application for finance in particular that there was no trust involved. This evidence was then contrasted at [20] of her affidavit which in effect states that it is her parents' house and she held it for them. When confronted with that paragraph and the suggestion that she must have misrepresented her position to RAMS, she said "I am telling the truth in my affidavit", (T61/30-35). She was pressed further on this topic but again adhered to her evidence that paragraph [20] of her affidavit of October 2015 was in fact the truth, (T62/5-10). Not without some hesitation I am inclined to accept her evidence, the effect of which is that she was untruthful with RAMS.
It was also put to Ms Tamer that in one conversation she had had with RAMS she had indicated that her parents were going to retire and move to Lebanon. She denied having made that representation. I am unable to accept her denial. There is a contemporaneous report described as a "background report" (CB1, 359) which is entirely consistent with her having told a representative of RAMS at some point at least, that the reason for the refinance was because her parents were considering selling the family home and moving "back to Lebanon and to enjoy their retirement". There is no possibility in my mind that someone from RAMS has invented that nor could anyone but Ms Tamer be the source of it. However I do not accept that that idea had any basis in fact. I consider she was telling yet another untruth to RAMS to achieve some sort of indulgence.
Ms Tamer was asked some further questions about completing the forms for the RAMS home loan. She indicated that the broker came to the house and asked her a series of questions and that as a result she signed the documents. She asserted that she had explained to the broker that her father had a need to refinance the house because he had given money to his brother and that he was no longer in a position to make the repayments, and further that he was not working so the Property needed to be refinanced in her name so her father could reduce his repayments. Ms Tamer asserted that at all times she had been truthful and honest with the broker, (T83/45-50). However she insisted that she could not see what he was writing on the forms and she could not remember having asked him any questions. She did however sign the documents but she could not remember him telling her to read the documents carefully before she did so, (T84/15-45). I am not inclined to accept this evidence. Had she told the truth to the RAMS representative I cannot accept that the forms would have been completed as they were.
She was asked again whether by allowing a 'scratch' to be placed through the document she intended to indicate it was not owned on any trust and she agreed that that was her intention, (T85/5-10). That concession was in my view tantamount to an admission that she told RAMS in effect what she thought they wanted or needed to hear.
In re-examination at (T86/35) she was taken to the transcript of the previous day's evidence and to her agreeing that she had indicated that the Property was not subject to a trust. She was asked whether in 2009 the concept of the trust was something that she had any understanding of, to which she answered "No", (T87/5). Further, she indicated that it was not a term used by any person in respect of the refinance with RAMS nor had it been used by any solicitor of hers, nor was it a term that she used in everyday life or indeed had ever heard of. Further, in 2012, when she filled out her statement of affairs in relation to her bankruptcy she did not have any understanding of the concept of a trust as it applied to land, (T87/30).
On balance I am satisfied that Ms Tamer attempted to the best of her ability to give truthful evidence before the Court albeit (somewhat) confused because she felt she could not admit that she had lied to RAMS. She was, of course, at pains to agree that when she spoke to the representative for RAMS she told the truth. She no doubt thought that is what she should have said rather than it in fact being the truth. On balance in any event, I am not satisfied that she truly understood the nature of a trust at any point in time. She has a degree in teaching, but it was not put to her expressly in cross examination that she understood the concept of a trust or its significance. After all, the existence or non-existence of a trust involves mixed questions of fact and law.
However, that to one side without intending any disrespect to her, I am clearly of the view that when it came to her family, in particular her mother and father, she would do anything she could to assist them in their time of need. To that end I am quite certain that even had she understood the true nature of the relationship of a beneficiary/trustee she would have said anything to either RAMS, or for that matter anybody else, in order to assist her parents. I suspect that she appreciated that the disclosure of a trust would at least be a complication in relation to the RAMS home loan application, although this particular aspect was not really cross examined on in a way which satisfies me that she would necessarily have appreciated the relevant complexities. I say this notwithstanding her answers at (T41/44 and T50) to which I will return.
That she had taken advantage of her purported status as a first home buyer and in fact pocketed some $25,000 hardly stands to her credit. However whilst that certainly does not enhance her credibility I do not consider in the end it is determinative in my mind of the question of whether a trust existed or not, nor does the payment of certain of her superannuation moneys similarly effect the ultimate outcome. She was part of a family which I think fairly on the evidence can be described as I have said as close knit. With the death of the Plaintiffs' two daughters in 2007 and a relative who would not or could not repay his loan her parents had been placed in most stressful circumstances.
In short, it therefore seems to me that whilst there can be much that can be said to criticise Ms Tamer and her evidence I consider her principal focus at all relevant times was to engage in any activity which she deemed necessary to save her parents financially and hence their family home. To that end I am satisfied that she would have engaged in any device, honest or dishonest, to achieve that end. However, I do accept her evidence that apart from her superannuation moneys she never made any contribution to the payment of mortgage moneys. Even in relation to her superannuation moneys she asserted, and I accept, that her father paid some of that back. When she got into difficulty with the police her parents stood by her and in particular her father had to clearly divert resources to ensure she was legally represented. I am also inclined to accept her evidence when she says her intention at all times was to hold the Property for the benefit of her parents. I am indeed convinced that was her sole purpose and intention at all relevant times.

Muhssen Tamer

Mr Muhssen Tamer is the son of the Plaintiffs. He swore one affidavit of 26 June 2015.
He and his wife live at the Property where he has lived his entire life.
During 2011 he says he commenced giving his father money to help with the mortgage payments on the Property. Initially in 2011, he says he gave his father $1,000 per month in cash and that continued until about November/December 2014 after which he started to give his father $2,000 per month.
As a result of leave Mr Tamer gave some additional evidence in chief.
Mr Tamer was shown a large number of bank statements which he identified as relating to an account in his name at the ANZ Bank at Auburn.
In cross examination, he agreed that he had been employed first as a road line marker in about April 2008. He was asked some questions about his bank statements showing payments from Centrelink and Newstart and he explained that he was out of work for 6 or 7 months and during that time he was on benefits, (T104/25-30).
It was put to Mr Tamer that he was giving practically everything he got from Newstart to his father to which he answered "Yes". He was not married at the time and he was otherwise in effect living off his parents, (T106/45).
He was asked about what appears to have been a regular deduction to "Toyota Finance", (T108/50).
He was asked whether the ANZ account was his only savings account, to which he answered "No", (T109/35). As at July 2013 he believed he could have had between $3,000 to $4,000 in his other savings account which he had saved from his previous employment, (T110/15). Mr Tamer went on to explain that the payment to Toyota Finance was for a car that he bought his father, (T111/5-10). Mr Tamer agreed that he kept no record of the transfers to his father, nor a diary, or any other documentation concerning the cash payments he made to his father from time to time, (T111/17-29). He agreed that he was party with his mother and father to a caveat being placed on the Property and in jointly instructing a Mr Abbas (their solicitor) to do so, (T113/15-29).
Mr Tamer was then asked whether he agreed that the Property was being held by Rana on trust for himself, to which he responded that he did not understand that to be the fact "because at the end of the day the house is my father's", (T115/26-34).
I am satisfied Mr Tamer did his best to tell the truth. It was not suggested to him for example, that he had not lived with his parents since he was born, nor was it put to him that he had not made financial contributions to his father from time to time in order to assist his parents to make mortgage payments. According to his bank statements, as far as they go, they show some withdrawals from time to time of amounts of around about $1,000 and there are withdrawals of smaller sums as well. Those bank statements at least, do not assist me to determine clearly one way or another whether Mr Tamer made payments to his father in those amounts or as regularly as he asserts. However, I am inclined to accept that from time to time and perhaps on a relatively regular basis he gave moneys to his father in order to assist him in making payments to the mortgagee. After all, Mr Tamer was living with his parents and continues to reside there even after his marriage. There is no suggestion that he has ever paid rent as such nor made any contribution to specific bills such as council rates or water. However I would regard as entirely usual circumstances when family members live together, especially when the person is an employed adult that they make some financial contribution to the household. On that basis I am prepared to accept Mr Tamer made contributions of cash to his father to assist in paying the mortgage.

Mr Ali Tamer

Mr Ali Tamer is the first named Plaintiff. He swore two affidavits, one of 12 October 2015, the second of 12 April 2016.
Mr Tamer was born in Lebanon in 1954 and came to Australia in 1979. His native language is Arabic although he can speak English. He does however have difficulties writing in English. He married his wife Susan in 1979 in Lebanon.
Mr Tamer did not attend primary or secondary school either in Lebanon or in Australia. He has never undertaken any formal study or education but he has some experience in relation to building work.
Mr Tamer stated uncontroversially that he and his wife purchased the Property in 1985 and have lived there continuously since. The purchase price was approximately $70,000. They paid a $5,000 deposit and borrowed the balance from the State Bank, according to his affidavit at [13]. Mr Tamer no longer has any paperwork in relation to the initial borrowings.
At the time when Mr and Mrs Tamer purchased the Property, they had three children. Mr Tamer worked six days a week in two jobs. First as an assembly line worker for Ford at Flemington and as a milkman in the Flemington area. Mrs Tamer did not work after they married.
Mr Tamer asserts that the repayments to the State Bank were about $500 per month and that he made all of those payments from money he earned from his two jobs, (affidavit 2015 at [17]).
Between 1985 and 1993, Mr and Mrs Tamer had four further children.
In or about 1989 or 1990, Mr Tamer left Ford and received approximately $30,000 on termination. He claims to have used all the money he says to renovate the Property in about 1992. He put on an extension which included an extra bedroom, lounge room, living room, kitchen, laundry and bathroom. He did most of the work. However, he continued to work as a milkman until about 1995.
Between 1992 and about 2003 he worked as a labourer for the clothing company Kakadu. From 2003 he worked as a door to door salesman selling Dead Sea hair products.
In or about 1995 Mr Tamer and his wife refinanced the Property with the Commonwealth Bank. They borrowed approximately an extra $20,000. The extra moneys were spent on living expenses and Mr Tamer also sent some money to his father in Lebanon. The monthly payments were then between $500 and $650 per month.
In 2003, Mr Tamer's brother Moussen, who lived in Melbourne, asked Mr Tamer for a loan. Mr Tamer and his wife refinanced their Property with a finance company and then National Australia Bank. As such he was able to loan his brother approximately $215,000. He has no paperwork in relation to this loan.
At first, Moussen gave Mr Tamer approximately $1,500 on a monthly basis. The total repayments then due to the National Australia Bank were approximately $2,000 per month.
In 2004 Mr Tamer and his wife again refinanced the Property with the National Australia Bank so as to enable Mr Tamer to loan his brother a further $50,000.
From about 2005 onwards, Moussen stopped making regular payments to him.
In April 2007, Manal (one of Mr and Mrs Tamer's daughters) died. During the early part of 2007 as a result of another daughter being in hospital, Mr Tamer was unable to make regular payments to National Australia Bank.
Mr Tamer made contact with his brother, however apart from perhaps one further payment, his brother thereafter ceased making any payments.
Mr and Mrs Tamer assert that they were forced to make hardship applications to the bank during the latter half of 2007. However, in the October of that year, their other daughter Nessrin died in hospital.
Mrs Tamer was unsurprisingly traumatically effected by the death of her two daughters. She became depressed to such an extent that Mr Tamer felt he had to become her full time carer. Since around about that time he and his wife had been on pensions.
Mr Tamer made further attempts (as did Rana and Muhssen) to extract moneys from Moussen but to no avail.
From about 2008 and onwards, the National Australia Bank made numerous requests and demands in relation to outstanding mortgage payments. It was in this context that he and his daughter Rana, at her instigation, devised a plan he asserted to put the Property into Rana's name in order to effect a long term loan with lower interest repayments.
None of the evidence I have referred to above is controversial.
At first Mr Tamer and his daughter attempted to organise a loan through Westpac but were refused. Rana then suggested to her parents that they could transfer the Property into her name to effect a longer term loan so as to lower the repayments. This evidence is not controversial either.
Rana organised someone from RAMS to come to the house to see her father. Mr Tamer was at the Property when the RAMS representative came and he explained to the representative that he had a problem with National Australia Bank. The rest of the meeting however took place only between Rana and the RAMS representative.
National Australia Bank issued a further demand indicating that they would commence proceedings.
Mr Tamer asserted that during August 2009 Rana brought the contract for sale of the Property to him and his wife to sign, which they did. He asserted that he did not read the document. He further asserted there was no purchase money or other money paid to him or his wife or anyone in relation to the Property. He further asserted that at the time of signing the transfer he did not understand that it was said that some $11,000 was paid to him or his wife. He claims that at all times he believed and understood the position that he and his wife were transferring the Property into Rana's name in order to enable a refinance for a longer period at a more favourable rate. His sole intention was to achieve that purpose and he never had any intention of parting with ownership of the Property. Although I do so with some slight hesitation, I accept his evidence on these matters.
Mr Tamer asserted that as soon as RAMS became the mortgagee he and his wife used their pension moneys together with additional moneys given to them by their son Muhssen to pay the mortgage payments to RAMS. Each month he asserts he would give cash to his daughter for her to pay RAMS. In December 2014 his son Muhssen married and his wife moved into the Property. They do not pay rent or other outgoings other than assist in mortgage payments.
In 2011 Mr Tamer asserted that Rana told him that she had left her job and was looking for other work. Mr Tamer asserted that he and his wife helped Rana through this period. However in early 2012 he discovered that Rana was being taken to court in relation to a matter concerning her former employer, and in due course she was made a bankrupt. He assisted her by paying her lawyer's fees. In the course of speaking to the particular lawyer, Mr Sam Abbas, he says he was assured that his house would be safe. He borrowed $10,000 from a friend to pay lawyers to assist Rana. Again I accept his evidence on these matters.
He asserted that during December 2014, Rana gave him a debit card and asked him to use the card for the purposes of paying money off the mortgage. I accept this evidence.
He said Rana married in December 2014 and then moved out of the Property. In November 2014 Mr Tamer discovered that the Official Trustee was making demands in relation to the Property and in relation to some caveats which had been filed. He asserted that he had a conversation with a person from the Official Trustee in which he attempted to explain the effect of the arrangement he had had with Rana.
Mr Tamer swore a second affidavit of 12 April 2016. In that affidavit he clarified that when the Property was first purchased in 1985, he and his wife paid all costs of the purchase including stamp duty, registration fees, solicitors fees and the like.
The affidavit in part deals with a number of statements attributed to Mr Tamer in diary notes kept in the records of the Official Trustee. He took issue with a number of statements attributed to him, none of which it seems to me is of any significant relevance.
Mr Tamer addressed the question of the moneys dispersed on the sale of the Property to Rana. He ultimately accepted that the amount of approximately $11,000 was received by him and his wife and that he asserts it was spent on the Property. It was spent on concreting the back yard and creating a play room for their grandchildren.
In relation to the caveat lodged on the Property, Mr Tamer said he did not understand what it was or how it worked but he did believe that by lodging it he would somehow protect his house.
Mr Tamer confirmed that at all times he and his wife paid Council rates and water rates before and after Rana's bankruptcy.
Mr Tamer, although asserting that he and his wife have continued to pay mortgage payments, acknowledged that from time to time they have fallen behind in making those payments.
Mr Tamer also asserted that he and his wife had no intention of living elsewhere and intend to spend their retirement in Australia with their children and grandchildren. I accept this evidence.
Mr Tamer swore a further affidavit of 27 April 2016. That affidavit had attached to it a number of receipts purporting to prove a series of deposits into a Westpac account in relation to which he had a debit card given to him by Rana. He said in evidence in chief and in elaboration of the 27 April affidavit that at the end of each month he realised he had to pay the loan. He would take money from his wife and/or his son and go to the bank and deposit moneys "in this card", (T117/30-40).
Mr Tamer was cross examined and he was asked whether he had seen the RAMS application documentation before and he said he could not remember, (T122/5-20).
He was asked whether he had seen the transfer (CB1, 106) and he agreed he had seen it before, (T122/30).
He understood that when he signed the transfer it had the effect of transferring the house from himself and his wife to Rana and he did so knowing the effect of the document, (T123/10).
Mr Tamer agreed that in 2009 he was about to lose his house and that he decided to put the house in someone else's name in order to hold on to it and keep it in the Tamer family, (T123/20-25).
Mr Tamer asserted that he transferred the Property into his daughter's name because he could not refinance the house himself and he needed someone to refinance the house so that he could keep it and that is why he put it into Rana's name, (T123/38-45).
Mr Tamer agreed that the reason he could not refinance the house was because he was too old to obtain a loan. He rejected any proposition however that he was planning on retiring to Lebanon, (T124/15-20).
Mr Tamer also asserted that a reason why he put it into Rana's name was because she lived with him and his wife, (T124/45-50).
Mr Tamer agreed that at the time he transferred the house over he did not have any plan about the house coming back into his name, (T125/20-25).
Mr Tamer was cross examined about how as he was on a pension, he managed to pay the mortgage payments and he indicated that from time to time his son Muhssen would assist. Mr Tamer agreed that he kept no records of the actual payments and details thereof.
Mr Tamer agreed that by November 2014 the repayments on the RAMS mortgage became $2,716.42, (T127/23-25). He also agreed that there is no way that he or his wife could make the mortgage payments on their own, (T127/45).
It was put to Mr Tamer (T128/50) that Rana may have been taking money from him each month and not paying off the mortgage. He could not answer that question. He was then asked did he trust Rana, to which he replied "That's very hard question. I can't answer this one". He was asked whether he trusted her now and Mr Tamer said he did not. Indeed, he did not trust her from the time that he discovered she had been taking money from her employer, (T129/10-34).
He was asked a series of questions about the relevant caveat and he agreed that he did instruct Mr Abbas to put the caveat on the Property, (T130/11-13).
Mr Tamer asserted that in conversation with Mr Ng he told him that the house was his and that he needed it back, (T132/25-30).
Mr Tamer accepted that he knew that Rana had been made a bankrupt and that she had defrauded her employer and owed them money.
Mr Tamer agreed that when the Property was purchased by Rana in October 2009, he received a cheque for $11,687.24, (T137/45-50).
Mr Tamer appreciated that as a result of the transaction his mortgage with National Australia Bank had been paid off, (T138/16-25).
Mr Tamer has not kept any receipts for any improvements he has undertaken on the Property. Most of the jobs were done by himself and his son, (T138/24-41).
Mr Tamer accepted that he not only receives a payment from Centrelink, but he also receives a pension as a carer, (T139/5-15).
I regard Mr Tamer to have been an honest witness. I am firmly of the view that in agreeing to transfer the Property into his daughter's name his only motivation and intention was to create a more favourable financial environment which he hoped would permit him and his wife to keep their family home. At the time, his daughter was living with him and his wife and he trusted his daughter. In his mind I am certain he was undertaking a course of action so that he and his wife could hold on to the Property.

Susan Tamer

Mrs Tamer swore one affidavit of 13 October 2015. Mrs Tamer is the Second Plaintiff and the wife of the First Plaintiff. She came to Australia when she was 18 years of age and left school in Year 10. Before she was married she worked as a seamstress but has not worked since she married.
Her husband has always managed the financial affairs relating to the Property. As and when needed, she would sign documents from time to time to do with the Property.
After the death of her two daughters in 2007 she became depressed and since that time has been on disability benefits.
Mrs Tamer was not required for cross examination.
In so far as it is relevant I accept her evidence.

Jamie Ng

Mr Ng was the only witness called by the Defendant. Without intending any disrespect to him his evidence was largely mechanical. His affidavit had attached an abundance of business records or communications he had had, for example with the solicitor for the Plaintiffs.
I did not regard such cross examination as there was as disclosing anything at all materially different to his or another's documents which were attached to his affidavit.

What do the Bank Statements Disclose?

There was an abundance of bank statements tendered. Some were the subject of oral testimony to which I have referred.
Rana's evidence is that after the RAMS loan was approved, the mortgage payments were initially for $2,200 interest only. She asserted that her father gave her $2,200 cash each month to pay the mortgage. This would be deposited into her ANZ account with a direct debit to the RAMS account.
However, the RAMS documentation contained in the court book (CB2, 674-682) shows something quite different. Nothing in the end probably turns on this difference, however the initial account linked to the direct debit was an account numbered 062217-69671051. This was an account at the Commonwealth Bank in the name of Ms Tamer. Direct debits occurred from that account from 7 October 2009 until at least 30 June 2011. Many of these direct debits were dishonoured.
From July 2011, the direct debits were in respect of an ANZ account numbered 012110-452015668. On 28 January 2014, a direct debit request was signed by Ms Tamer in respect of an account numbered 082112-141441918 at National Australia Bank. However, the RAMS statement shows that for the first half of 2014 direct debits occurred in respect of her ANZ account, whereas for the second half of 2014 no direct debits appear to have occurred at all. There appear to have been deposits made directly into the RAMS account. Further, from December of that year, it is plain that direct debits occurred in relation to her Westpac account in respect of which there was a debit card which she gave to her father. That account was numbered 732003-698815 ('the Westpac account').
The bank statements for the Westpac account show transactions occurring in 2014 and 2015. Those bank statements show little if any activity on the account apart from deposits and payment by authority to RAMS.
Mr Ali Tamer in his statement of 12 April 2016 attaches a number of receipts. The receipts relate to a Westpac debit card numbered 5163 6100 4574 9618. Amounts for $3,000 (5 December 2014), $3,000 (29 December 2014) accord with deposits made into Ms Tamer's Westpac account on each of those days. A deposit of $2,500 (29 January 2015) is also to be found in her Westpac bank account statement.
However, there were further deposits on 26 February 2015 ($2,500), 31 March 2015 ($2,600), 30 April 2015 ($2,700) and 29 May 2015 ($2,700) for which there are no similar receipts.
A further deposit is shown on 29 June for $2,600 again for which there is no receipt. However, there is a receipt for a deposit on 31 July of $2,400. There is no receipt for the deposit on 31 August 2015 of $2,600, but there is a receipt for a deposit on 29 September 2015 for $2,600 and 29 October for $2,600. There is a further deposit made on 30 November 2015 for $2,600 for which there is a receipt.
In addition, there are receipts for payments on 29 January 2016 for $2,650, 29 February 2016 for $2,700 and 30 March 2016 for $2,700.
By and large the Bank statements do not show a consistent pattern but I consider on balance they do provide corroboration for Rana and Mr and Mrs Tamer, especially the activities recorded on the Westpac account for 2014-2015. Those payments, I am satisfied, were made by Mr and Mrs Tamer almost certainly with the assistance of Muhssen. As for the earlier period I am satisfied Mr and Mrs Tamer along with Muhssen effectively paid sums towards the mortgage as and when they could. There were many missed payments and hence defaults as is clear from the records such as they are.

Consideration

The Defendant unsurprisingly wishes to rely upon a number of statements made by Rana to RAMS and others to the effect that the Property was not affected by any trust. There are however, in my mind, some problems with this approach.
One issue that arose is the extent to which Rana really understood what a trust involved. The Defendant relies on a number of answers given in her evidence, in addition to the various declarations she made.
In particular, answers given by her at T42-44 and T50 to the effect that she intended to inform RAMS that the Property was not owned on trust. Further, it was submitted that her answer at T43/43-45 was particularly revealing because by her agreeing that she intended to convey to RAMS that she was the only person who "owned" the Property, was tantamount to her displaying knowledge of a trust.
I do not consider that is a reasonable conclusion for two reasons. First, it was not put to her explicitly that she understood the distinction between a legal and a beneficial interest, or more to the point, that she was intending in any of her answers to convey the impression that her parents had no interest whatsoever beneficial or otherwise, in the Property upon transfer to her. If she had explicitly been asked that question and an affirmative answer had been given, that evidence might have carried some weight. Secondly, in any event, there is a direct explanation for why she was prepared to answer questions in the way she did and that is because regardless of her true beliefs, she would, I consider, have given any answer at all whether true or false in order to achieve the family objective, namely a refinancing of the Property on more favourable economic terms so that her parents could hold on to the Property.
Although self-serving, both Rana and her father gave evidence in their affidavits of their common intention as it were, which in my view is the most plausible explanation for their conduct independently of what they said. Both assert it was always their intention that the Property remain that of Mr and Mrs Tamer (Rana's Affidavit 13 October 2015 at [20], Mr Tamer's affidavit 12 October 2015 at [75]).
By the end of 2007, Mr and Mrs Tamer had owned the Property for some twenty two years. It was the house in which they had brought up their family. In that year, two of their children died. Mr Tamer felt the need to give up work to care for his wife. His brother Moussen had borrowed in or around 2003-2004 a large sum of money from him that had not been repaid and was by 2007 perhaps unlikely to be repaid. That placed a significant financial burden on the household. He desperately needed assistance from his son in an attempt to pay the mortgage. By 2009 Mr Tamer and his wife were facing the serious prospect of losing the Property.
I am satisfied on the evidence that the refinance with RAMS was a blatant device to reduce monthly outgoings so as to permit Mr and Mrs Tamer to retain the family home. I am satisfied that this was the common or shared intention of Mr and Mrs Tamer and Rana. That intention is proved on the balance of probabilities by what in part they said to each other in the circumstances they found themselves in at the time and by what they did. Nothing that happened subsequently on any of their parts detracts on balance, in my view, from that common or shared intention. Indeed, if anything, their subsequent conduct corroborates it.
I accept on the evidence that whilst Mr Tamer was able to work he made most, if not all of the mortgage payments. After he gave up work, clearly he and his wife only had pensions to fall back on. As a practical matter I am satisfied that Rana twice contributed her superannuation moneys to the mortgage. I am also satisfied that Mr and Mrs Tamer's son Muhssen made contributions to the mortgage. Neither he nor for that matter Rana, make any claim on the Property. Their contributions to the mortgage can be characterised in any number of ways. First they could be gifts or moneys paid in lieu of rent. Muhssen has lived at the Property for the whole of his life and notwithstanding his marriage continues to live there with his wife and Rana also lived there her whole life until she was married in December 2014.
I am satisfied that council rates, water rates and other household expenses have either been paid by Mr and Mrs Tamer or perhaps with money given to them from time to time by Rana or Muhssen.
In so far as it is alleged that Rana said anything to either RAMS or others suggesting she owned the Property, I am, regrettably, satisfied that they were likely to be at least careless or worse deliberately false statements on her part and said purely to obtain finance. The statements in her Statement of Affairs in April 2012 is totally at odds with what she told the Defendant on 5 March 2012. In my mind that highlights her lack of understanding of what a trust is or perhaps her confusion as to what she should do or say.
The Defendant also put that one additional reason for rejecting her denial of trust was that there was no plan for the Property to revert to Mr and Mrs Tamer. There are various answers to this. The most obvious is that the topic had simply not been thought of and hence was not addressed. That is unsurprising, given that Mr and Mrs Tamer are unsophisticated people. They were concerned with holding on to the Property at any cost. Rana suggested the device and no one relevantly was concerned to obtain or seek any legal advice. Mr and Mrs Tamer at the time totally trusted their daughter, never imagining what would ultimately occur. If Rana had not got herself into difficulty, there is no reason why the arrangement could not go on indefinitely.
In all the circumstances it seems to me that there was at the relevant time a common or shared intention to create a trust and I consider the evidence therefore demonstrates that the Plaintiffs have a proprietory interest in the Property. It would in my view be therefore appropriate to make a declaration accordingly for a remedial constructive trust.
Although not strictly necessary for me to do so I should say something briefly about the other remedies sought by the Plaintiffs. No case for an express trust was advanced or pleaded, but a resulting trust was contended for. However the facts are clear the Plaintiffs did receive consideration on the transfer of the Property to Rana being the payment out of their mortgage plus the payment of $11,687.34. The whole idea was for them to remain in the Property and Rana became the mortgagor. I see no room here for a resulting trust in all of the circumstances. It is certainly as I see it not a case where the usual presumption arises.
Likewise I do not see how estoppel can arise here. It seems to me there was no representation relevantly made by the Defendant that it would not seek to sell the Property for the benefit of the bankrupt estate. Nor do I consider that the Defendant can by reason of anything it did be said to have lead anyone in the Plaintiff's position to form the view they should repay the mortgage payments to Rana. That was what they intended to do from the very outset.
I consider the case on mistake and restitution as somewhat confused and misconceived. In short I see no available evidence to link some mistaken belief as to the ownership of the Property to any action on the part of the Defendant. In addition there are serious causation issues on the part of the Plaintiff's case. It is difficult to see how any mistaken belief as to ownership is causatively linked to their mortgage.

Conclusion

I consider that in all the circumstances, a remedial constructive trust should be declared with such consequential relief as is necessary. For example I would propose making the declarations sought in paragraphs 1 and 3, but would otherwise dismiss the Plaintiff's claim. I would dismiss the Defendant's cross claim. I am prepared, of course, to hear submissions if need be on these matters.
I would invite the parties to prepare short minutes to reflect my reasons and relist the matter to determine the question of costs if agreement cannot be reached on that issue.

Endnotes

(1985) 160 CLR 583 at [614]
(2011) 243 CLR 253 at [54]
(1953) 90 CLR 86 at [100]
Byrnes v Kendle (2011) 243 CLR 253 at [55]
Greater Pacific Investments Pty Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143 at [152]
Parsons v McBain [2001] FCA 376 [10]
Muschinski v Dodds (1985) 160 CLR 583 at [590] (Gibbs CJ), at [598] (Mason J), at [611] (Deane J); Baumgartner v Baumgartner (1987) 164 CLR 137 at [145] (Mason LJ, Wilson and Deane JJ)
Muschinski v Dodds (1985) 160 CLR 583 at [614] (Deane J)
Muschinski v Dodds (1985) 160 CLR 583 at [620]; Baumgartner v Baumgartner (1987) 164 CLR 137 at [149], Hiberson v George (1989) 12 Fam LR 725 at [730-733], Bryson v Bryant (1992) 29 NSWLR 188
Muschinski v Dodds (1985) 160 CLR 583 at [615]
Rathwell v Rathwell (1978) 83 DLR (3d) 289 at [305] et seq; Pettkus v Becker (1980) 117 DLR (3d) 257; Sorochan v Sorochan (1986) 29 DLR (4th) 1; Everson v Rich (1988) 53 DLR (4d) 470
Muschinski v Dodds (1985) 160 CLR 583 at [620]
(1997) 139 FLR 410 at [428]
Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] NLJR 877
Calverley v Green (1984) 155 CLR 242; See also Mason and Brennan J.J at [255]-[256] and Deane J at [266]-[267].
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at [374]
Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd [1980] QB 677
Ibid at [703]
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at [393]
Kelly v Solari (1841) 152 ER 24 at [54]
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at [371]
Ibid.
(1988) 164 CLR 387 at [404], [415]
Ibid per Mason CJ and Wilson J at [404]
[2014] HCA 19 at [523] (French CJ, Kiefel, Bell and Keane JJ)
Ibid. at [91] (Gaegler J)

Amendments 01 June 2016 - typos in paras 26, 27, 30,31,32, 33, 41, endnote 7 01 June 2016 - delete Conveyancing Act 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: 01 June 2016

(1989) 12 Fam LR 725

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