Angelou v Brandenburg - [2024] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
ANGELOU v BRANDENBURG
[2024] SADC 114
Reasons for Decision of his Honour Judge Slattery
4 September 2024
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - FORM AND CONTENT OF CAVEAT - GENERALLY
The respondent was the sole registered proprietor of property in Prospect (the property) which was subject to a mortgage to Perpetual Limited following its purchase. She was the sole registered mortgagor. The respondent was for nine years in a de facto relationship with Nicholas Angelou, the son of the applicant. There are two infant children of that relationship. The relationship has now dissolved and the Family Court has exclusive jurisdiction to decide upon property rights and parenting orders of the children of the relationship. Family Court proceedings have been commenced.
On 24 January 2024, more than nine years after purchase by the respondent of the property, the applicant has claimed a caveatable interest in the property based upon his contention of having made a loan to the respondent to assist in the purchase of the property. The loan amount was in the sum of $250,000.
By consent and under the orders of the Court, the property was sold and the sum of $250,000 was placed into the suitor’s fund in this court in the name of this action.
Following the sale of the property, the parties to the relationship reached an agreement under which the respondent received an amount of cash in discharge, or at least part discharge of her interests in the parties’ property. She continues to be primarily responsible for parenting the children. No orders have been made in the Family Court certifying the agreement of the parties in relation to their property interests or in relation to parenting of the children.
Nicholas Angelou, the son of the applicant, is a party to the Family Court proceedings. The applicant in this action is not a party to the Family Court proceedings but makes a claim against the proceeds of sale of property of which the respondent is the sole registered proprietor and which is the subject of a dispute between the parties in the Family Court. The court has now been advised that Nicholas Angelou brings a challenge to the settlement reached between he and the respondent in relation to the property interests under which the respondent received a payment of cash.
In this action, the respondent denies the claims of the applicant, contends that the amount paid to her at the time of the purchase of the property was a gift, that arguably a presumption of advancement applies and there is no presumption in favour of the applicant, under, for example, a resulting trust. She also contends that the sum of $250,000 falls into the assets to the parties to the relationship and the Family Court has exclusive jurisdiction to decide the matters connected with the relationship.
The applicant contends for the payment out to him of the amount of money in the suitor’s fund. He also contends that there is no basis for the respondent to oppose such an order as the corpus of the funds generated from the sale of the property may be adjusted to cater for each of the rights of the parties to the relationship.
Held:
1.The amount standing to the credit of the action in the Suitors Fund shall remain in the Suitors Fund until the disposition of the Family Court proceedings.
2.There is a contest of fact and law between the applicant and the respondent about whether the amount received from the applicant by the respondent at the time of the purchase of the property was a gift or a loan.
3.The Family Court has exclusive jurisdiction over the property interests of the parties and the Family Court proceedings are already commenced.
4.It is a matter for the Family Court to decide whether, at the time that the respondent received the said sum of $250,000 she stood in any relationship recognised by equity with the applicant or whether in equity the rights of the parties are to be adjusted and if so, in what away.
5.This action should be transferred to the Family Court so that the applicant in this action becomes a party to those proceedings and so is bound into its result.

Real Property Act 1886 (SA); Law of Property Act 1936 (SA), referred to.
Deguisa v Lynn (2020) 268 CLR 638; (2020) 384 ALR 209; (2020) 94 ALJR 1020; [2020] HCA 39; Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; Calverley v Green [1984] 155 CLR 242; 56 ALR 483 ; Nelson v Nelson (1994) 33 NSWLR 740; Brown v Brown (1993) 31 NSWLR 582 , considered.

ANGELOU v BRANDENBURG
[2024] SADC 114

In this action, the respondent was the sole registered proprietor of the whole of the land comprised in certificate of title Volume 5524, Folio 611 more commonly known as 20 Lettie Street Prospect SA 5082 (the property). She previously lived at that address with her former de facto spouse, Nicholas Angelou. The relationship lasted for some nine years and there are two infant children of that relationship.
The relationship is at an end and issues of the division of the property of these parties and parenting issues of the children have not been resolved between the parties. The Family Court of Australia has exclusive jurisdiction in relation to the issues of parenting orders for the children of the relationship and the property interests connected with the breakdown of the parties’ relationship.
The property was purchased some nine years ago and the respondent has at all times been the sole registered proprietor. She purchased the property in 2015 for the sum of $535,000. At purchase, a first mortgage in favour of Perpetual Limited was registered on the title. As a result, the respondent was thereafter primarily responsible to repay that mortgage as the mortgagor on the title. The respondent was the registered mortgagor. There is no evidence on the title that Nicholas Angelou claims or has claimed any legal or beneficial interest in the property or has challenged the indefeasible interest of the respondent.[1]
[1] See: Deguisa v Lynn (2020) 268 CLR 638; (2020) 384 ALR 209; (2020) 94 ALJR 1020; [2020] HCA 39.
On 29 January 2024, the applicant registered a caveat over the property.[2] The interest claimed was expressed as follows:-[3]
[2] S 191 Real Property Act 1886 (SA).
[3] Exhibit PS2 to the Affidavit of Peter Scragg made on 7 March 2024 (FDN 3).
‘THE CAVEATOR CLAIMING
To be beneficially entitled to an estate or interest in fee simple (in some indefinable share or shares) in the land described having contributed to the acquisition, maintenance and improvement of the land described.’
The caveat was permissive and was in the following form.
‘PERMITS THE REGISTRAITON OR RECORDING OF ANY INSTRUMENT AFFECTING THE ESTATE OR INTEREST OF THE CAVEATEE IN THE LAND DESCRIBED SUBJECT TO THE CLAIM OF THE CAVEATOR, AND PROVIDED THAT THE CAVEATOR HAS GIVEN ITS WRITTEN CONSENT TO THE DEALING.’
As will be explained below, the property has now been sold by the respondent and an amount in the order of $568,000 has been paid to the respondent out of the proceeds of sale of the property. This payment was not made pursuant to any order of the Family Court or pursuant to any form of agreement carrying the imprimatur of the Family Court as a registered binding agreement authorised by that Court. It was therefore a payment made under an informal arrangement between the parties to the relationship. I am satisfied that at the same time, the parties agreed that Ms Katherine Brandenburg should retain fulltime care of the children of the relationship as if a form of parenting order had been made. This appears to be continuing.
I have earlier set out the claims disclosed in the face of the caveat. On 29 February 2024, the respondent warned the caveat. The applicant brought an application for an extension of time for the removal of the caveat. The applicant did not affirm an affidavit in support of this application. An affidavit affirmed by the solicitor Mr Peter Scragg, has been filed in support of the application.
The pertinent paragraphs of that affidavit are as follows:-
‘2.The respondent was previously in a relationship with the applicant’s son, Nicholas Angelou. They separated on 6 December 2023. There are two infant children of that relationship.
3.In about February 2015 the respondent purchased a house at 20 Lettie Street Prospect for the sum of $535,000. To assist in paying the purchase price for the land the applicant loaned to the respondent on 6 February 2015, the sum of $55,000 plus a transfer fee of $30 and on 6 February a further $185,000 plus a transfer fee of $35. The total is $240,065 (called the loan). ..
4.In order to secure the applicants interests in the land he placed a caveat on the title. The agreement was that that loan would be repaid as soon as it was possible for the respondent to afford to repay him.
5.On 29 February 2024, the respondent applied to have the caveat removed. The applicant has until 21 March 2024, to obtain an order, preventing the removal of the caveat from the subject land.
6.I have been informed by the applicant the respondent intends to sell the land and the applicant has concerns reinforced by the application to remove the caveat that the respondent has no intention of repaying the loan to the applicant, which the applicant advance (sic) to enable the respondent to purchase the land.’
In order to understand what follows, there are a number of matters that should be emphasised. In paragraph 3, of this affidavit, it is alleged that a loan arrangement existed; this is said to be a loan made solely to the respondent and not to the respondent and the applicant’s son, Nicholas one of the parties to the relationship. That is a peculiar arrangement and it appears that the intention of the deponent is to suggest that the respondent was to be solely responsible to repay this ‘loan’ under an agreement, the terms of which are not specified. To compound this peculiarity, there is no evidence of a loan to the respondent apart from this hearsay statement which does not rise above self-serving. There are no material facts disclosed in relation to any alleged agreement. Nothing is said of any acceptance of an obligation to repay, by whom, when, at what rate, whether an interest component is applicable and what are the circumstances of default. Nothing is said of the respondent personally accepting responsibility to repay this alleged loan. And nothing is said of any alleged agreement or its terms. No material facts are provided.
More peculiar in that background is that there does not appear to be any documents recording this alleged liability of the respondent and nothing was recorded on the title by the applicant for a period of some nine years. The caveat appears to seek to enforce an oral contract made with the respondent in relation to the creation of an interest in land absent any writing about such an interest (c.f. s 29 and s 30 Law of Property Act 1936).
The application for extension of time for the removal of the caveat came before Judge Davison, the short notice list Judge on 18 March 2024. Each of the applicant and respondent were represented by solicitors. Her Honour was informed that the property was to be auctioned on the following weekend. Thus, it was said that the caveat was necessary. Counsel for the respondent informed the court that the sensible way forward was for the money that was the subject of the applicant’s claim to be paid into the Court Suitors fund. That would remove urgency and allow the auction to proceed on the following Saturday. There was some considerable discussion before her Honour and the matter was adjourned for further discussion between the parties.
On 18 March 2024, Judge Davison made the following consent orders:-
1.   Caveat number 14208978 (caveat) remained registered on the title of the property… until settlement of the sale of the subject property.
2.   Upon payment by the respondent of the sum of $250,000 into the suitor’s fund of the District Court to the credit of this action, the applicant must contemporaneously provide the respondent with a discharge of the caveat.
3.   The Court does declare that upon and subject to the payment contemplated by the previous order being made, the applicant has no further interest in the subject property.
4.   The matter is adjourned until 2 pm on 1 July 2024.
Following the making of these orders by Her Honour, the property was sold, there was settlement upon that sale and the sum of $250,000 was paid into the suitor’s fund of the District Court to the credit of this action.
The matter was next heard by the short notice Judge, his Honour Judge Alexandrides on 30 July 2024. At that time his Honour was told that the only unresolved issue between the parties was whether the payment allegedly made by the applicant was a gift or a loan. It was not said to whom the gift was made or to whom the loan was made. His Honour was informed that on the applicant’s case, the onus was upon the respondent to assert the circumstances by which she asserted that it was a gift. In the absence of any pleading on the matter and in the absence of any material being filed before the court identifying the writing evidencing the alleged agreement or the alleged loan, this submission was misconceived.
Counsel for the respondent informed Judge Alexandrides that proceedings were on foot in the Family Court which were required to be resolved before this action could proceed in this Court. His Honour was also informed for the first time by the respondent’s counsel, that the solicitor for the applicant, Mr Scragg, informed her on the previous evening, that he was now instructed to act for the applicant and the applicant’s son, Nicholas Angelou. There was discussion between bench and bar about the possibility of a fast-track trial. His Honour was also informed by the respondent’s counsel that the issue of a gift or a loan could not be resolved by negotiation between the parties. His Honour was informed that the respondent’s position was that the money was a gift and it formed part of the matrimonial asset pool and would need to be dealt with as part of the proceeds of any property settlement.
Mr Scragg, counsel for the applicant, then informed his Honour that he had repeatedly implored the respondent to consent to the payment out of the money in Court and that any remaining issues between the parties could be dealt with in the Family Court. He said that the respondent would still be entitled to contend in the Family Court proceedings, that the payment was a gift and it should be taken into account as part of the ‘pool’ of matrimonial property. He submitted to his Honour that the argument of the applicant was that equity favours bargains over gifts, a presumption applies in favour of a bargain and the burden rests with the respondent to discharge the presumption. He said that the size of the asset pool was sufficiently large for an amount of money to be paid to the applicant and still further money had to be paid to one of his clients, the son, Nicholas Angelou. Therefore, it made no sense to resist an immediate payment out of the money. Despite that, the respondent is insisting upon the matter going to trial.
The respondent’s counsel then informed Judge Alexandrides that there had been negotiations about consent orders to be filed in the Family Court which dealt, in part, with the payment out of the money in this Court. Those communications have broken down and the most recent development was that Mr Scragg acts for the applicant’s son and there was a potential conflict of interest. Mr Scragg was asked to give due consideration to that.
Mr Scragg then informed Judge Alexandrides, that the applicant has all of the relevant documents, the matter is not contested, that it is accepted that the money came from the applicant and went to the respondent for the purposes of purchase of the property.[4] I am unable to accept the accuracy of that statement. I have already discussed the very obvious and perhaps fatal lacuna in the documentation filed in support of the application for the extension of time for the removal of the caveat. It does not disclose any documentation recording a loan, or an agreement as alleged.
[4] Transcript 30 July 2024, page 7, line 18-23.
Judge Alexandrines then made orders for the matter to proceed upon pleadings and an affidavit evidence.
On 26 August 2024 as the short notice Judge, I heard a further directions hearing in the matter. By that time, the respondent did not have a solicitor acting for her and Mr Scragg again explained the position to me that the contention between the parties is whether the amount of money in the Court Suitor’s Fund was a gift or a loan. I asked Mr Scragg why that was not the matter for the Family Court. He informed me that the ‘agreement’ predates the Family Court proceedings and that it is not necessary for the matter to be resolved in the Family Court because there is sufficient other assets to do a proper adjustment between the parties without that money.[5]
[5] Transcript 26 August 2024, page 2, lines 21-24.
I confirmed with Mr Scragg that Nicholas Angelou was not to be a respondent to these proceedings and that the respondent had been the fee simple owner of the legal and beneficial interest in the property.
I asked Ms Brandenburg whether she had representation in the Family Court and she said that she did not because she was unable to afford solicitors. She then informed me that her understanding of the money claimed by the applicant was that it was given to her as a gift which was not to be repaid. It was not until after separation between herself and Nicholas Angelou that the applicant placed a caveat upon the property in an attempt to stop her selling the property. She said that this action of the applicant felt very much like a coercive act, there was a lot going on and that remains the case.[6] I was then informed that the property had been sold for $1.2 million dollars, that the $250,000 had been paid into the Court, that there was an amount remaining of some $900,000 and there is now a dispute in the Family Court about the corpus of the $900,000. I was also informed that Nicholas Angelou, the son of the applicant had informed the respondent that no matter what happened, the applicant would hand over to him, upon return, the full sum of the $250,000. Thus, it appears that Nicholas Angelou, had not calculated the amount of money held in the District Court Suitors Fund as part of the total pool of assets to be divided.
[6] Transcript 26 August 2024, page 3, lines 30-38.
The respondent informed me that she had received an amount of money out of the settlement but all of that was orchestrated by Nicholas Angelou. If she wanted to argue the point about that division of money, it would have required lawyers and she could not pay lawyers fees. She then informed me that there were no consent orders in place stating that the settlement had been finalised and agreed to by both parties and so the division of that amount of money was not binding.
The respondent then informed me that she had been attempting to get Nicholas Angelou to sign a Family Law agreement for the resolution of the matter but he keeps ‘flipping the script’ and not wanting to agree or not wanting to sign.[7] The respondent informed me that the settlement that had been proposed was based upon the acceptance that a sum of money had already been received by her and it assumed an amount of money being returned to Nicholas Angelou from his father.
[7] Transcript 26 August 2024 page 5, lines 33-38.

The following exchange then occurred with Mr Scragg:-[8]
‘MR SCRAGG: Your Honour, frankly we don't quite agree with the distribution. We say that this debt which is regarded as a debt should be quarantined from the matrimonial asset pool. That's where the fundamental argument is. That what happens is Ms Brandenburg wants the debt - has regarded it as a matrimonial asset and therefore the fact that it goes to the father is deemed to be a payment to the husband. We say that's not the case.’
[8] Transcript 26 August 2024, page 9, lines 5-13.
In the result, I adjourned the matter for a period of 7 days to allow the parties to inform the court when the Family Court proceeding may be resolved.
The matter came on before me again on 4 September 2024. On 20 August 2024, the respondent had filed an affidavit of that date in compliance with the orders made by Judge Alexandrides on 3 July 2024. I pointed out to Mr Scragg that the affidavit asserts a legal position that the amount of money advanced by the applicant was a gift. I raised with Mr Scragg the fact that the respondent was the sole registered proprietor, that there was no evidence of an agreement for a loan, there is no evidence of any agreement and that issues of a presumption of advancement may apply. Mr Scragg then informed me that the important thing is that the settlement (that is the Family Court Settlement) has not in any way been prejudiced Ms Brandenburg’s rights to assert that the property was matrimonial property, that the respondent has taken $570,000 from the proceeds of sale and purchased another property leaving some $86,000 which has been given to Nicholas Angelou.
I then pointed out to Mr Scragg that any payment is relevant because if it be said that the money in the suitors fund in this action belonged to the applicant, and the applicant has an obligation to make the money over to Nicholas Angelou, then the obligation is upon Nicholas Angelou to claim the money from the respondent in the context of the settlement to the exclusion of the interests of the applicant. If that be so, it places Mr Scragg in an irreconcilable conflict of interest position. Mr Scragg denied that there was any conflict. Mr Scragg then asserted that the parties have agreed that the action should end, they have other rights in the Family Court and the payment of the money does not impact the outcome of the respondent’s interests in the Family Court proceedings. He suggested that the actions of the respondent was an unreasonable attempt to force his clients to compromise their position. He then said:-[9]
‘It's unreasonable for the court to intervene and seek to have that outcome. It's a partisan approach.’
[9] Transcript of 4 September 2024, page 4, lines 15-16.
When I asked Mr Scragg whether he was accusing me of being partisan, he said that there was an apparent partisanism because in not allowing the matter to proceed the Court effectively blocks an arrangement. He then said the money was paid, his client (‘his client’ is not identified) then is free to litigate the matter without any overarching compulsion in any form to make some sort of compromise and the rights are totally reserved. There is no compromise of the right. At transcript 4 September 2024 at page 5 the following exchange occurred:-[10]
HIS HONOUR:      The problem with that is this: that if Ms Brandenburg is right and it was gift then the figure of $240,000 should not be payable to your client the father. But arguably, on what you've just told me, should be paid to your client the son. To the exclusion of the father.
MR SCRAGG:       Well that's - your Honour, both of them recall that it's not a gift it's a loan. If we need to litigate that - there is an equitable rule that equity favours bargains to gifts. I'm instructed that this was done because they couldn't buy the property. As a result of buying the property Ms Brandenburg has made a lot of money which is a matrimonial asset which would never have existed but   for the loan from my client.   The double-edged sword is not only has he been a   great benefactor and helped these people but now has   been cursed because he has been so generous. What I impeach you is to put this to an end.        Ms Brandenburg can get representation if she wants. The ending of this does not in any way compromise her rights. She can go forward however she sees fit or however she doesn't see fit and the matter can be out of this jurisdiction which is running out of costs. My client has got the costs of me returning here today. And there will be ongoing costs if this matter drags on and doesn't reach an immediate compromise.
HIS HONOUR:      Are you going to withdraw your allegation that I'm partisan?
MR SCRAGG:       I didn't say you were partisan. I said there is an apparent -
HIS HONOUR:      Are you withdrawing your allegation that I'm apparently partisan?
MR SCRAGG:       I withdraw it.
[10] Transcript of 4 September 2024 at page 5, line 9- page 6 line 4.
I then asked the respondent to inform me of her position. She said she challenged whether the applicant ever had a caveatable interest in the property because what she received was a gift in the absence of any loan agreement or any evidence indicating an agreement of any sort or any writing, recording anything of that nature. She then informed me for the first time that Mr Scragg had indicated that Nicholas Angelou intends to litigate the whole matter further. I asked her to identify what was the topic of that litigation. She informed me that the topic of the litigation was the settlement made between herself and Nicholas Angelou. I was informed for the first time that this settlement was apparently now to be challenged in the Family Court. A settlement agreement had been reached with Nicholas Angelou. Ms Brandenburg had received money according to that settlement, and it was now going to be the subject of a challenge. This was because there was no formal orders put in place at the time settlement was achieved. The following exchanges occurred at transcript pages 6, line 6-page 7 line 34 of the transcript of evidence 4 September 2024.
MS BRANDENBURG:    Well, your Honour it's a very difficult situation. With the legal advice I have had, I've been told to question whether or not Mr Angelou even had a     caveatable interest in the property in the first place based on the fact it was a gift and based on the fact there is no loan agreement or anything indicating that it was anything other than a gift. However, I do also agree with Mr Scragg I would like to get this over and done with. My main concerns are, having been informed through my previous lawyers that Mr Scragg does intend to litigate me further -
HIS HONOUR:      To litigate what further?
MS BRANDENBURG:    The settlement that was made between Nick and myself. My ex.
HIS HONOUR:      Is that now to be challenged, is it, in the Family Court?
MS BRANDENBURG:    Apparently so, yes. I've been informed - my previous lawyers had a conversation with Mr Scragg prior to my ending that agreement with my old lawyers     and they informed me that that would be the case, yes.
HIS HONOUR:      So you have a settlement with your former spouse?
MS BRANDENBURG:    We do yes.
HIS HONOUR:      You've received money according to what
Mr Scragg has told me.
HIS HONOUR:    Is it now that that the money is now going to be the subject of a challenge?
MS BRANDENBURG:    Correct, because there were no formal orders put in place at the time. I was under the impression if Nick and I both put in writing to the conveyancer where the money was being held and stated our position on that that the conveyancer would be able to distribute those funds and that would be the end of it. However, since then I've been informed that's not necessarily the case.
HIS HONOUR:      And do you now have an understanding that that settlement reached between yourself and your former de facto spouse will be challenged in the Family Court?
MS BRANDENBURG:    That is my understanding, yes.
HIS HONOUR:      Thank you. Mr Scragg, is there such a challenge?
MR SCRAGG:       There is no settlement. What happened was -
HIS HONOUR:      No. Is there a challenge to that   distribution?
MR SCRAGG:       My client -
HIS HONOUR:      Don't interrupt me Mr Scragg. You've insulted me twice today and don't do it three times. Mr Scragg, is there a challenge to the distribution made from the sale of the property?
MR SCRAGG:       Yes. There may be. I don't know. I’m getting instructions on it. Whether that proceeds I don’t know but there is no - there has been a distribution, there has not been a settlement.
HIS HONOUR:      All right. In those circumstances I'm not prepared to make any orders in relation to this matter. In my view the appropriate order would be for the amounts to remain in the court trust account until such time as there is a resolution of the Family Court proceedings.
This exchange was the first time I had been informed that there was to be a challenge to the settlement reached between the respondent and Nicholas Angelou. At the time, Mr Scragg was acting for both Nicholas Angelou and the applicant. He informed me for the first time that there had been a distribution from the sale of the property but there had not been a settlement. I am satisfied that if an order was made for the payment out of the money in the Suitors Fund in this action, control of those funds would be lost. The applicant is not a party to the proceedings between the respondent in this action and Nicholas Angelou in the Family Court and Nicholas Angelou is not a party to the proceedings in this Court. I am satisfied that no steps may be taken in relation to the funds held in court until such time as the Family Court proceedings have been resolved. It is disappointing that the court was not informed of the contention of Nicholas Angelou that even though a payment has been made to the respondent, there is no settlement connected with that payment upon which reliance may be made by the respondent in Family Court proceedings. However, that is a matter ultimately for the Family Court.
A resulting trust is presumed where, when real property is purchased, the legal title to that property is vested in someone else apart from the person who is proved to have provided the purchase money. These principles are well settled. It is not suggested in this case, for example, the applicant has provided the full purchase money for the respondent when she brought the property. The basis of the operation of a resulting trust is that a court presumes that someone who pays the purchase price for a property intends to obtain the beneficial interest in the property in the absence of any interests to the contrary. Where a legal title vests in someone who the provider of the purchase money is under an obligation to support, there would be no presumption of a resulting trust in favour of the purchaser. The presumption that arises as an operation of law is that the property was vested as an absolute gift or as an advancement.[11] In this case, the money was made over by the applicant to the respondent, a person with whom his son was in a de facto relationship. She was therefore not a child of the applicant however, it is now clear, following the decision in Nelson v Nelson that presumption of advancement will apply to the circumstances of an adult parent and an adult child.[12]
[11] Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353.
[12] Nelson v Nelson (1994) 33 NSWLR 740; Brown v Brown (1993) 31 NSWLR 582 at 591, 598-599 and 605.
In the case at bar, the relationship of parent and adult child exists between the applicant and his son Nicholas Angelou, the de facto partner of the respondent. In my view, it is open for the respondent to argue that the presumption of advancement may apply in relation to the making over of the money from the applicant in the circumstances as existed. That again is a matter for the Family Court. The breadth of the discretion of the court, is apparent from the decisions of the High Court in Calverley v Green.[13] The approach of Deane J was that the rule did not operate strictly as a presumption but operated when certain relationships occur and equity infers that a benefit has been provided by an advancement, which as his Honour describes, results in a prima facie position remaining that the equitable interest is at home with the legal interest. The judgments of Mason and Brennan JJ in Calverley v Green held that a description of a de facto and husband and wife was obfuscatory of legal principle apart from distinguishing the relationship from that of husband and wife. Their Honours held at [260] – [261] as follows:-
‘Where the contributors to the purchase price are not husband and wife, the taking of a conveyance in their joint names is less likely to support an inference that they intend the right of survivorship to govern their beneficial interests. In a case where a man and a woman are cohabitating, though unmarried there is no presumption either of equity or human experience, that they intend their relationship to have the same consequences upon their individual property rights as a marriage has upon the property rights of spouses. An assumption that the parties to such an arrangement intend to maintain independent control of money and property and to retain a testamentary power to dispose of assets in which they have an interest is more likely to coincide with reality than an assumption of joint ownership. The provisions of s 79 and 80 of the Family Law Act 1975 (Cwth) now furnish a further ground for not applying the special rules governing the title to property in the case of spouses in order to resolve property disputes between parties who have cohabitated but who have not married.’
[13] [1984] 155 CLR 242 at 249-50; 56 ALR 483 at 486.
And it has always been the case that a resulting trust will be rebutted if the transaction is one of a gift. It will also always be more difficult to prove the express nature of a resulting trust in the absence of the statutory requirement of writing as currently appears to be the case here.[14]
[14] See generally, Jacobs Law of Trusts in Australia (7^th Edition: LexisNexus Butterworths), paragraph [1213].
It is not necessary that I reach any particular conclusion about the application (or not) of the principles relating to resulting trusts and the presumption of advancement. This discussion discloses that there are a number of issues that must be resolved between the parties and that in the circumstances the funds paid into the suitors fund must be preserved until a final resolution of those issues.
In the exercise of my discretion, I consider that the appropriate decision is to preserve the funds until such time as the Family Court has made its decision whether the sum of $250,000 falls into the asset pool of the parties or is owned by another and if so, which party. In my view, the appropriate disposition of this action is for it to be transferred to the Family Court and disposed of at the same time as the other proceedings between the parties to the relationship. The applicant would then become a party to the Family Court proceedings and the issue can be litigated in one proceeding.
I order:-
1. The amount of $250,000 paid into the Suitors Fund in the name of this action under an order of this court is to remain in the District Court Suitors Fund until such time as there has been a resolution of the whole of the Family Court proceedings between Nicholas Angelou and Katherine Brandenburg or alternatively pending an order for the transfer of this proceeding to the Family Court at which time that sum may be paid into the equivalent of the Suitors Fund in the Family Court.