Weige v Cupton Pty Ltd

Judgment 1BASTEN JA: The appeal should be dismissed with costs, for the reasons given by Ward JA. 2WARD JA: This is an appeal from the dismissal of proceedings that has had the effect of leaving undisturbed the ownership by the second respondent (Ms Sproule) of a property located at Lower Mangrove. Prior to its transfer to Ms Sproule in May 2010, the legal title to the property had been held by the first respondent (Cupton). The appellants contend that Ms Sproule procured the transfer of the property into her name by fraud and that she knowingly assisted in a breach of trust by Cupton in failing to transfer the property on demand to the appellants, instead transferring it to herself for no consideration. As at May 2010, Ms Sproule was registered as the sole director and shareholder of Cupton. Background 3The Lower Mangrove property, which was described in evidence as a salt marsh, was acquired by Cupton on 31 August 2006 for the sum of $95,000. The contract for sale noted that Cupton was the purchaser as trustee for the Weige Family Trust. Cupton had been incorporated the month before the property was acquired. On incorporation, the shareholding of Cupton was held as to three shares by the second appellant (Mr Weige) and as to one share by the first appellant (Mr Heelan). On 3 August 2006 Cupton was appointed as joint trustee (with Mr Weige) of the Weige Family Trust. Cupton's appointment as joint trustee was for the stated purpose of the purchase and administration of the property. 4The Weige Family Trust had earlier been established pursuant to a Deed of Trust dated 1 January 2002. Mr Weige (who at various times was known as Mr Coulter) was initially the sole trustee of, and was the named Appointor under, the Trust Deed. In 2004, Mr Heelan was appointed as joint trustee of the trust and in 2009 the third appellant (Mr Paul Miller) was also so appointed. (Mr Weige is one of the named corpus beneficiaries of the Weige Family Trust.) 5It was not disputed that Mr Weige and Ms Sproule were in a de facto relationship for a time, though the length of that relationship was disputed. Nor is it now disputed that Mr Weige contributed half the purchase price of the property ($47,500). 6There was, however, a contest at the trial as to whether Ms Sproule had contributed the other half of the purchase price obtained by a loan to her from her family trust (as she claimed) or whether the funds had been lent to Cupton (as Mr Weige claimed). On the appellant's case, the funds had been lent to Cupton by Blaydon Pty Ltd ("Blaydon"), the trustee of a Sproule family trust. Ms Sproule's father, Dr Brian Sproule, was a director of Blaydon. 7The primary Judge found that on 31 August 2006 Mr Weige paid the deposit of $9,500 in cash obtained from a safe. On 26 September 2006, Ms Sproule was appointed as a director of Cupton. 8Prior to settlement, Mr Weige gave Ms Sproule $37,500 in cash from the safe. She deposited that money in a bank account in the name of her father as trustee for the "Nicola Lisser-Sproule Trust". Ms Sproule then got her father to draw two cheques from that account, both payable to her. One cheque was for $47,500 and the other was for $37,191.12. Ms Sproule then converted both cheques into one cheque for $84,701.12 payable to the vendors of the property. That cheque was handed over to the vendors on settlement. 9On 28 September 2006, Blaydon and Ms Sproule executed a written loan agreement whereby Blaydon advanced $47,500 to her as the borrower. It was a term of the loan agreement that Ms Sproule would cause Cupton to execute a mortgage in favour of Blaydon over the property to secure the sum advanced. 10On the same date, 28 September 2006, Cupton executed a mortgage over the property in favour of Blaydon. The registrable mortgage was signed by Mr Weige and Ms Sproule on behalf of Cupton and Dr Sproule and his wife as directors of Blaydon. Ms Sproule was recorded in the annexure to the mortgage as the "debtor". 11Not long after the purchase of the property there were discussions between Mr Weige and Ms Sproule as to a further sum of money ($14,000 or $15,000) to be paid to or for the benefit of Mr Weige. The content of those discussions was in dispute. On 14 November 2006, Mr Weige signed a document (witnessed by Ms Sproule) to the effect that, as at that date, he was ceasing to be a director of Cupton. On 16 November 2006, Mr Weige signed a further document stating that he thereby sold his four shares in Cupton (described as being the only shares therein) to Ms Sproule for $14,000 and that this change had been notified to ASIC. (Mr Weige held only three shares in Cupton at the time.) There was no evidence that ASIC had been notified at that stage of the transfer of shares (or Mr Weige's resignation as director) nor was any transfer of shares form ever signed by Mr Weige or registered as such. 12Ms Sproule gave evidence of a conversation with Mr Weige (denied by him but accepted by the primary judge) in relation to Mr Heelan's share in Cupton, in which she said that Mr Weige had told her that Mr Heelan would do exactly what he, Mr Weige, said. Ms Sproule also gave evidence (again denied by Mr Weige but accepted by the primary judge) of a conversation in November 2006 with Mr Weige in which he told her that once he signed over the shares and she owned Cupton the land was hers. 13There was a dispute between Mr Weige and Ms Sproule both as to the nature or status of the agreement between them in relation to the transfer or proposed transfer of the Cupton shares and as to whether the stated consideration was in fact paid by Ms Sproule. 14On appeal, Mr Weige did not dispute that there was a share sale agreement (though in evidence at the hearing he had said the document that he had signed and put in the safe was only a "draft" agreement) but he maintained that the agreement had been terminated later in 2006 due to the non-payment by Ms Sproule of the sum specified in the letter. Mr Weige further contended that the only agreement in relation to the (proposed) transfer of Cupton shares related to the three shares held by him (which he alleged he held on behalf of a separate trust, IEM), not to the one share held by Mr Heelan, and that the agreement did not confer any interest in the property on Ms Sproule. 15In cross-examination, Mr Weige said that the proposed transfer of the shares was to give Ms Sproule the right to occupy the property and to receive 80% of the income derived therefrom (though there was no documentation to support this characterisation of the transaction). As noted earlier, Ms Sproule's account of the transaction was that Mr Weige told her that when she owned the shares in Cupton the land would be hers. How that was to be effected was not explained. 16There was clear evidence that Ms Sproule had obtained a sum of $17,000 from Blaydon on 15 November 2006 and that on 23 November 2006 she signed an acknowledgment as to the receipt of this amount as a further loan advance under the earlier Loan Agreement. Ms Sproule also signed, in the stated capacity as sole director and secretary of Cupton, a document acknowledging and agreeing to the extension of the existing Blaydon mortgage to secure the further advance. 17Ms Sproule gave varying accounts of the manner in which she says that the sum of $15,000 was paid in aggregate on Mr Weige's directions (a matter on which much emphasis was placed for the appellants as discrediting her evidence that any payment for the shares was ever made to Mr Weige or at his direction). The primary judge noted the inconsistencies in Ms Sproule's evidence but considered that it was more probable that Ms Sproule had paid the consideration for the shares. The payment of various amounts in cash to Mr Weige's creditors was consistent with his acceptance in cross-examination that he dealt mainly in cash. 18On about 23 March 2007 Ms Sproule lodged with ASIC a change of company details from recording the transfer of Mr Heelan's share in Cupton to her. 19Just over two years later, in January 2009, Cupton was deregistered by ASIC (pursuant to s 601AB of the Corporations Act 2001 (Cth)) for non-payment of fees. 20In December 2009, Blaydon made an application for the reinstatement of the registration of Cupton on the basis that this was necessary to enable enforcement of its rights as mortgagee. On the re-registration of the company, Ms Sproule notified ASIC of the resignation of Mr Weige as a director and of the transfer of the company shares to her. Ms Sproule thereby became noted on the register as sole director and holder of all the shares in Cupton. 21In March 2010, Mr Weige revoked the appointment of Cupton as trustee of the Weige Family Trust. Demand was then made for the transfer by Cupton of the property to the three remaining trustees (namely, the appellants). There was no compliance with that demand. 22A Variation of Mortgage dated 26 May 2010 was subsequently executed by Ms Sproule on behalf of Cupton in respect of the Blaydon mortgage and Blaydon consented to the transfer of the property by Cupton as mortgagor to Ms Sproule. The property was then transferred to, and registered in the name of, Ms Sproule. Proceedings below 23Proceedings were commenced by Summons in June 2010 by Mr Heelan, Mr Weige and Mr Miller (as the then trustees of the Weige Family Trust) against Cupton, Ms Sproule and Blaydon. The proceedings continued on pleadings, a Statement of Claim being filed on 24 January 2011 pursuant to leave given on 13 December 2010. Defences were filed by the respective defendants in February 2011. 24As against Cupton, it was alleged that there had been a breach of trust by it in failing to transfer the property to the plaintiffs (after Cupton was removed as trustee of the trust in March 2010) and in subsequently transferring the property to Ms Sproule for no consideration. 25As against Ms Sproule, it was alleged that she had received trust property for no consideration knowing that Cupton was in breach of trust and with the intent to defeat the interest claimed by the Weige Family Trust in the property (a first limb Barnes v Addy (1874) LR 9 Ch App 244 claim). 26As to the control of Cupton, it was alleged that the lodgement of the various documents with ASIC by Ms Sproule (by which she ultimately became registered as sole shareholder and director of the company) was without the knowledge or consent of Mr Weige or Mr Heelan and was invalid. 27The Statement of Claim pleaded (at [34]) an agreement, reached on about 14 November 2006, for the transfer of Mr Weige's three shares to Ms Sproule and his resignation as a director in consideration of the sum of $14,000 but that this agreement was terminated on or about 7 December 2006 "in the absence of payment" of the said sum. Orders for rectification of the register were sought. 28It was further alleged against Ms Sproule that she had acted to the detriment of both Cupton and the Weige Family Trust for her own personal gain; had dishonestly transferred the property into her own name from Cupton; and had engaged in fraud within the meaning of s 42(1) and s 43(1) of the Real Property Act 1900 (NSW) ("RP Act"). A second limb Barnes v Addy claim seems to have been raised in the course of the proceedings arising out of the pleaded facts. 29The claim against Blaydon related to the interest in the property it claimed under the mortgage and its conduct in executing the Deed of Consent which allowed registration of the transfer to Ms Sproule. That claim was apparently resolved by consent between those parties at the commencement of the hearing with the entry of judgment in Blaydon's favour. 30The defence by Ms Sproule invoked an estoppel against any denial that Mr Weige had authority to enter into the initial agreement (ie, the agreement that Ms Sproule and Mr Weige would jointly own the property) or the subsequent sale of the remaining beneficial interest in the property to Ms Sproule. Ms Sproule further relied on the indefeasibility of her title to the land by virtue of her registration as proprietor of the fee simple estate (RP Act, s 42(1)). 31The appellants' case at trial was that, up until the May 2010 transfer to Ms Sproule, the legal title to the property was held by Cupton as trustee for the Weige Family Trust. Mr Stewart, who appeared for the appellants, made it clear that Mr Weige did not at trial (and did not on appeal) contend that he acquired any beneficial interest in the property by reason of his payment of half of the purchase price. The appellants say that the beneficial interest in the property held by the Weige Family Trust can be enforced against Ms Sproule notwithstanding her registration as proprietor of the property. 32The primary judge expressed grave misgivings as to Mr Weige's reliability as a witness and in general accepted the evidence of Ms Sproule as to the critical conversations. His Honour's credit finding was expressed to be based not simply on observation of the respective witnesses in the witness box but also because his Honour considered that those contemporaneous materials that were reliable favoured or corroborated Ms Sproule rather than Mr Weige. Grounds of Appeal 33The appellants raise four grounds of appeal. They contend that the primary judge erred in finding: (i) that Ms Sproule was entitled to the legal and beneficial interest in the property; (ii) that on or about 16 November 2006 there had been a purchase by Ms Sproule of the Weige Family Trust's interest in the property and that Ms Sproule paid valuable consideration for that purchase; (iii) that Ms Sproule was a bona fide purchaser of the property for value without notice; and (iv) that Ms Sproule had not breached her own, nor was a party to Cupton breaching its, trustee obligations to the Weige Family Trust. (I note that Ms Sproule was never appointed as trustee of the Weige Family Trust; rather, she was a director of the corporate trustee of the trust. I understand this ground of appeal to relate to the contention that Ms Sproule held the property as constructive trustee for the Weige Family Trust - para 28(a) of the Statement of Claim - or the contention implicit in paras 48-49 that she was in breach of her duties as a director of Cupton in relation to the transfer of the property.) 34In substance, the relief now sought is a declaration that Ms Sproule holds the legal title to the property as trustee for the Weige Family Trust. Ground 1 35The proposition that Ms Sproule had no beneficial interest in the property when the legal title to the property was transferred to her requires the appellants to overturn the finding that Ms Sproule contributed (by way of moneys borrowed from Blaydon) half of the purchase price for its acquisition. 36That finding, as his Honour explained, gave rise to the presumption of a resulting trust. Unless rebutted by evidence of an intention on Ms Sproule's part that the beneficial interest should lie in accordance with the legal title (or there was some later agreement to alter the equitable interest in the property so acquired), this would lead to the conclusion that, from the time of acquisition of the property, Ms Sproule held a 50% beneficial interest in the property. The relevant question then would be whether the circumstances in which Ms Sproule subsequently acquired the balance of the beneficial interest in the property gave rise to any remedy in favour of the appellants. However, as confirmed by Mr Stewart, the appellants' case had been run at trial as a claim to the whole of the property, not a claim to recover a 50% beneficial interest held on behalf of the trust as at the time of transfer to Ms Sproule. 37The finding that Ms Sproule's 50% contribution to the payment of the purchase price gave rise to a resulting trust in her favour was expressed by his Honour (at [62]) to be based on the cumulative sum of Ms Sproule's contribution of 50% of the funds to the purchase price of the property, the de facto relationship shared by Mr Weige and Ms Sproule at the time of purchase, and the representations his Honour found had been made by Mr Weige to the effect that the property was being purchased jointly for the two of them. Only the last required the resolution of any substantial conflict between the version of events put forward by the two main protagonists. 38The principal criticism made by the appellants of the primary judge's findings at [61], [62] and [64] in relation to the resulting trust issue (and also his Honour's findings at [70] and [74] in relation to the subsequent arrangement for the transfer of the shares in Cupton) was as to the credit findings made by his Honour. In that regard it was contended that his Honour had failed to use his advantage as a trial judge in determining the evidence, such that this advantage had been lost to him (adopting the terminology used in Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167). 39This argument was put on the basis that his Honour had "jettisoned" demeanour and had made findings on what were said to be objective facts but which it was contended did not support the findings made. Mr Stewart referred to a series of matters said to support that conclusion but, in essence, the real complaint seemed to be that his Honour had considered Ms Sproule's version of events to be more plausible than that of Mr Weige, a finding that has not been shown to be wrong. 40The matters to which his Honour had referred, and which it was contended did not support the finding of a resulting trust, were that Ms Sproule's family trust had sufficient funds to buy the property without funds from Mr Weige (said by Mr Stewart to be a matter of no moment); that Ms Sproule had told her father in September 2006 that the property would be 50% hers if she provided half the purchase price (said to be inconsistent with other statements made by her or else consistent with a "very devious plan ... right back in September 2006" to manipulate events); his Honour's finding that Mr Weige's account as to the Blaydon mortgage was implausible (Mr Weige's evidence was said to be consistent with him simply forgetting some of the details and, in relation to his signature on the mortgage, that his Honour had inaccurately stated the evidence); that Mr Weige invited and facilitated Ms Sproule's directorship of Cupton (it being noted that there was evidence that Ms Sproule had made a request to that effect); and his Honour's acceptance that the two November documents signed by Mr Weige supported Ms Sproule's version of the conversations (it being contended that this was not the case). 41None of those matters (even if the construction sought to be placed on them by Mr Stewart were to be correct) supports a finding that Ms Sproule intended to make a gift of the $47,500 to Mr Weige or the Weige Family Trust. Yet that, in essence, must be the case put forward by Mr Stewart to rebut the presumption of a resulting trust, absent any other explanation as to why it should be said that Ms Sproule intended the legal title not to reflect her contribution to the purchase price. 42The case put by the appellants at the trial, as explained on appeal by Mr Stewart, was that Ms Sproule had "facilitated" a "soft" loan (namely, a loan in respect of which no repayments were required to be made) by Blaydon to Cupton in respect of half of the purchase price. Mr Weige in cross-examination seems to have regarded it as an interest free loan (T45.16-25) that might not have had to be repaid (saying, "I thought that Cupton, the Weige Family Trust, if it had to, was liable to repay ..." (my emphasis)). On appeal it was not suggested that anyone other than Ms Sproule (noted as the "debtor" on the mortgage) was responsible for repayment of the loan. 43In written submissions on appeal, it was suggested that Ms Sproule had procured that "soft loan" in order to reciprocate benefits conferred on her in her relationship with Mr Weige and not with an intention that she obtain an interest in the property. That does not seem to have been put to Ms Sproule in cross-examination, although it was suggested to her, and she accepted, that she was willing to do things for Mr Weige out of love alone (T178.35). 44There is no doubt that half the purchase price was provided by funds obtained by Ms Sproule under the loan agreement she entered into with Blaydon. The moneys were provided by Ms Sproule for the acquisition of the property; there was no suggestion that this was intended to be a gift to Mr Weige or the Weige Family Trust; and the legal title did not reflect her contribution to the purchase price. 45There was, therefore, a presumption that the beneficial ownership of the property (unlike the legal title) was held as to 50% by her, such a resulting trust arising at the time of acquisition of the property (Calverley v Green [1984] HCA 81; 155 CLR 242). Absent agreement between the parties, the beneficial interest arising under such a resulting trust is not changed by later contributions to the property: Shepherd v Doolan [2005] NSWSC 42; Buffery v Buffery & Anor [2006] NSWSC 1349. 46The onus of rebutting such a presumption lies on the party seeking to rely on the legal title (here, the appellants). The appellants did not do so. The matters referred to by Mr Stewart do not demonstrate any error in his Honour's finding on this issue. Mr Stewart's submissions go no further than speculation as to an intention on the part of Ms Sproule to make some kind of gift of the use of her half of the purchase money as a contribution to her then relationship with Mr Weige. Rebuttal of the presumption of resulting trust requires proof of a "definite intention" not (in the words of Dixon J in Drever v Drever [1936] ALR 446 at 450) a "nebulous intention". 47Insofar as the primary judge (at [60]) found that Ms Sproule and Mr Weige held the beneficial interest over the property in 50% portions in relation to their contributions to the purchase price but then said (at [63]) that this did not detract from the legal finding that Cupton was the legal owner of the property "and held it on trust, as at the date of purchase, for the WFT", I do not read this to be suggesting a sub-trust of the beneficial interest held by the Weige Family Trust. Rather, it seems to me likely that his Honour regarded Mr Weige (a trustee of the Weige Family Trust) as having contributed his share of the purchase price to the acquisition of a 50% share on behalf of the trust and having intended the title to reflect this. 48This is consistent with what is said at [64] of his Honour's judgment, where the finding on the resulting trust issue is restated as being that Cupton held the legal interest, whilst the Weige Family Trust and Ms Sproule each held 50% of the beneficial interest. It is also consistent with the concession made by Mr Stewart that Mr Weige claims (and claimed at the hearing below) no beneficial interest in the property. Hence it is unnecessary to determine how any personal interest of Mr Weige (deriving from his 50% contribution) and the finding that the property was held as to 50% on behalf of the Weige Family Trust might otherwise have been reconciled. 49There is nothing in my view to warrant a different conclusion from that reached by the primary judge on the resulting trust issue. As at the date of acquisition of the property (and as at the date of the subsequent dealings with the property) Ms Sproule had a beneficial interest in 50% of the property. How she then came to acquire the beneficial interest held by the Weige Family Trust raises for consideration the balance of the grounds of appeal. Ground 2 50It is contended that his Honour erred in finding that, on or about 16 November 2006, there had been a purchase by Ms Sproule of the Weige Family Trust's (50%) interest in the property and that Ms Sproule paid valuable consideration for that purchase. 51The challenge to his Honour's finding at [74] (that the more probable account as to the share transfer was that there was an agreed payment of $15,000 for Mr Weige's shares in Cupton) is largely based on criticism of Ms Sproule's credit. 52The fundamental complaint was that the primary judge had accepted Ms Sproule's evidence as to the payment made by her of $15,000 for the shares in Cupton (and as to what she understood to be the consequence of this in terms of her interest in the property), in circumstances where Ms Sproule had (as conceded by her counsel, Mr Menadue) given three different accounts of the manner in which that sum had been paid. Mr Menadue submits, however, that the differences in these accounts were as to the identity of those to whom she was instructed to pay cash; the deposit and withdrawal of cash on each of the three accounts being consistent with Ms Sproule's bank statements. 53His Honour, while noting that the evidence was neither clear nor satisfactory on either side, considered that the documents signed by Mr Weige on 14 and 16 November 2006 (as to his ceasing to be a director and his agreement to sell all the shares in Cupton to Ms Sproule) supported Ms Sproule's version of events, namely that on payment of the sum of $15,000 the balance of the property would be signed over to her and she would then own all of the property. (The latter was a condition that Ms Sproule said had been placed by Dr Sproule on the provision of any further funds to Mr Weige.) 54Mr Stewart contends that the critical part of Ms Sproule's account of her discussion with Mr Weige (namely, that he had said "after I sign over the shares and you own Cupton, the land is yours"), which was denied by Mr Weige, was not something that Dr Sproule, in his affidavit, recorded Ms Sproule as having said to him at the time (rather, Dr Sproule's recollection was that his daughter had told him that she now controlled Cupton). Mr Menadue submits that the evidence of the witnesses in this regard had clearly conflated a number of conversations. 55The circumstances in which findings based on credibility assessments may be found to be erroneous are well established (Fox v Percy [2003] HCA 22; 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [28]; as further explained by Kirby J in CSR Ltd v Della Maddalena [2006] HCA 1; 224 CLR 1 at [19]-[21]). 56Insofar as the submissions on the present appeal effectively seek to revisit the credit findings made by the primary judge or suggest that they, or the conclusions drawn from them, were erroneous, there is nothing in my view to warrant the conclusion that his Honour's findings were glaringly improbable or inconsistent with incontrovertible evidence or to support this proposition that there was a misuse of (or failure to use) the advantage his Honour had in assessing the witnesses before him. 57His Honour accepted that Mr Weige had agreed to sign over "his" half of the property to Ms Sproule (together with the shares in Cupton) [66] and had represented that once Ms Sproule owned Cupton the land would be hers [61]. While the agreement pleaded in Ms Sproule's defence was an agreement in relation to a half interest in the property held by Mr Weige, not the Weige Family Trust, it seems to have been accepted by his Honour that Mr Weige was in a position to deal with the trust property. His Honour found at [84] that as at May 2010 Ms Sproule was a bona fide purchaser for value without notice. 58On neither party's account of the relevant conversations is it clear how it was contemplated that the transfer of shares in Cupton (leaving aside the fact that the letter provided for transfer of all four shares and yet Mr Weige held only three) would operate to do any more than give the transferee (Ms Sproule) control over Cupton, which held the land as trustee (from the time of acquisition for Ms Sproule as to 50% and the Weige Family Trust as to the balance). Insofar as Cupton held the property as to 50% on trust for the Weige Family Trust, then Cupton had a duty to act in the interests of the beneficiaries in relation to that interest. 59However, if the agreement reached by Mr Weige (he being a joint trustee and the Appointor under the Trust Deed), encompassed an agreement to transfer the trust's 50% beneficial interest as well as the shares in Cupton to Ms Sproule, then (apart from any issue as to whether Mr Weige was authorised to bind the other trustees on behalf of the trust to such a sale), on payment of the consideration the beneficial interest held in the property on behalf of the Weige Family Trust would then be held by Ms Sproule. 60Mr Weige's version of events (though denying the receipt of the consideration for the transfer) seems to have been that the transfer of the shares carried with it rights of occupation and exploitation of the property (T55), (this being the explanation put forward as to why one would pay $15,000 to acquire shares in a company whose only role was to hold land as corporate trustee). 61It is not clear why the grant of occupation rights would be necessary as, on his Honour's findings, Ms Sproule already held a 50% beneficial interest in the property. Moreover, the acquisition of shares in the corporate trustee would give no apparent right to its shareholders to exploit the land for their own purposes or to share directly in any revenue derived from the land by Cupton as trustee. Mr Stewart pointed to evidence that emerged from Mr Weige in cross-examination as to the income derived (or able to be derived) from the land suggesting that the holders of shares in the trustee would derive an 80% benefit from income received by the trust. However, there is no evidence (beyond Mr Weige's assertion in the witness box) to support a conclusion that the shareholders of the corporate trustee (as opposed to the corporate trustee for the benefit of the beneficiaries) had any entitlement to revenue derived from the use or ownership of the land. Nor was Ms Sproule a beneficiary of the Weige Family Trust. 62Furthermore, the evidence suggested that the prospect as at November 2006 of the property producing any significant income was minimal. The property consisted of salt marsh, not a likely source of revenue. Mr Stewart referred to some agreements entered into in 2009 as demonstrating that the property could produce income sufficient to make an entitlement to 80% of the income stream meaningful. But the agreements to which he referred were entered into several years after the November 2006 transaction and, in any event did not generate significant revenue. 63As noted, his Honour accepted that the evidence was not wholly satisfactory on this issue but accepted Ms Sproule's version of events as the more probable. That is not inconsistent with incontrovertible facts nor is it glaringly or inherently improbable. Insofar as it is implicit in his Honour's acceptance of Ms Sproule's version of events, and inherent in his finding that Ms Sproule was a bona fide purchaser for value without notice, that Ms Sproule became beneficially entitled to the trust's 50% interest in the property under the November agreement, then questions of indefeasibility would not arise (as, by then, she was beneficially entitled to the whole of the property). 64There seems to me no error demonstrated in the finding that Ms Sproule made payment of the consideration stipulated in the November agreement, nor in the implicit finding that this was paid on the understanding of Ms Sproule that Mr Weige had agreed to the transfer to her of the remaining beneficial interest in the property. Whether Mr Weige was authorised to bind his co-trustees to such an agreement, such that the payment of consideration was sufficient to confer a beneficial interest in the property on Ms Sproule at that stage, does not seem to have been addressed by reference to the Trust Deed, clause 12 of which obliged the trustees to act jointly. In any event, ultimately this does not matter given the further findings made by his Honour on the indefeasibility issue. 65I am not satisfied that the second appeal ground has been made out. 66For completeness, I note that it was submitted by Mr Stewart on appeal that even if Ms Sproule had paid Mr Weige $15,000 as consideration for his shares in Cupton (as the primary judge found on the balance of probabilities), this should not entitle Ms Sproule to all of the property on the basis that this would otherwise amount to unjust enrichment (citing Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221). No unjust enrichment claim was pleaded. On the version of events accepted by his Honour, Mr Weige (a trustee, and the appointor, of the Weige Family Trust) had agreed to the transfer of the trust's interest in the property for the stated consideration. There was no stated basis for an unjust enrichment claim. Such a claim would have to have been properly pleaded, including the vitiating factor alleged to give rise to the unjust enrichment (more is required in that regard than proof of retention of a benefit - Pavey & Matthews; David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 at 378-9; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [150]-[151]). Grounds 3 and 4 67It is contended that his Honour erred in finding that Ms Sproule was a bona fide purchaser of the property for value without notice. This issue was considered by the primary judge in the context of the reliance by Ms Sproule on statutory indefeasibility of title, following registration of the transfer to her by Cupton in 2010. The plaintiffs' case, as recorded by his Honour at [76], was that Ms Sproule had breached one or other of the two limbs in Barnes v Addy (1874) LR 9 Ch App 244. 68On the findings made by the primary Judge, in November 2006 Ms Sproule acquired the 50 per cent beneficial interest in the property that she did not already hold. At that point, although legal title to the property remained with Cupton, it held the property on trust solely for Ms Sproule. At the time Cupton transferred the legal title to the property to Ms Sproule, the appellants and the Weige Family Trust had simply ceased to have any beneficial interest in the property. It follows that registration of the transfer to Ms Sproule had no effect on beneficial title to the property. Therefore, no question of fraud or the second limb of Barnes v Addy arises. 69It is unnecessary to consider the position on the assumption, not consistent with the findings, that the appellants or the Weige Family Trust retained a beneficial interest in the property at the time Ms Sproule obtained registration of the transfer executed by Cupton. However, on that assumption, in order to establish fraud, the appellants would need to show more than that Ms Sproule had notice of the Trust's (assumed) pre-existing beneficial interest. 70The case put for the appellants rested on there being a "devious" plan (seemingly from the time of the share transfer agreement in November 2006 if not before) by Ms Sproule to obtain the legal title to the property by taking control of Cupton. It was not put to Ms Sproule in cross-examination that there was a devious plan of that kind nor was it put to her that the object of the share transfer in November 2006 was to put herself in the position (without proper authorisation) to effect a transfer of the legal title to the property into her name. Significantly in this context, she did not take any steps to effect a transfer of the property until nearly three years later, after Cupton had been deregistered. 71His Honour accepted Ms Sproule's evidence (not challenged in cross-examination) that, after signing the 16 November 2006 document, Mr Weige had told her that after he signed over the shares "you own Cupton, the land is yours". On Ms Sproule's version of events, there was an agreement from late November 2006 by Mr Weige for the sale of the remaining half share in the property to Ms Sproule. 72The primary judge rejected the contention that Ms Sproule had acted fraudulently or dishonestly in the re-registration of Cupton and the subsequent transfer of the land into her name. His Honour accepted (at [83]) that the evidence pointed to Ms Sproule having a bona fide belief that she was transferring the shares into her own name legitimately and that her subsequent registration on the title was in accordance with the terms of the November 2006 transaction. His Honour found (at [84]) that the requisite fraud or dishonesty was not made out and that the claim by the plaintiffs that Ms Sproule held the property on constructive trust under the second limb of the rule in Barnes v Addy was not made out. 73Thus even if the Weige Family Trust retained a beneficial interest in the property after the November 2009 transaction, the appellants have not demonstrated any error in the primary Judge's conclusion that Ms Sproule's registered title as the proprietor of the fee simple estate was not defeasible by reason of fraud. 74The appellants did not rely on the in personam exception to indefeasibility and nothing need be said about it. 75Accordingly, Grounds 3 and 4 are not made out. 76Again, for completeness, I note that no issue is taken in the appeal with his Honour's findings at [93] that the alleged transfer by Mr Weige of the four shares to Ms Sproule was not effective at law (his Honour noting that Mr Weige did not have authority to sign over Mr Heelan's share) but that this did not alter the findings as to Ms Sproule's interest in the property: at [94]. Nor was there any appeal from the dismissal of the claim for a declaration that Cupton had breached its obligations as trustee under the Weige Family Trust by failing, once it was removed as trustee, to transfer the property to the trustees and by transferring the property to Ms Sproule: at [88]. His Honour addressed this issue from the perspective of the principle that a director of a trustee company cannot purchase property of which the company is trustee. His Honour noted that Cupton had been removed as trustee at the time of transfer and found that Ms Sproule did not act improperly in relation to her registration on the title to the property. The question whether, absent a finding of dishonesty, Cupton was nevertheless in breach of trust in failing to accede to the new trustees' request was not separately considered, nor is it the subject of appeal. 77For the above reasons, the appeal should be dismissed with costs. 78SACKVILLE AJA: I agree with Ward JA.