Australian Military Bank Limited v Pike

[2025] NSWDC 455

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Australian Military Bank Limited v Pike [2025] NSWDC 455

Hearing dates:

11-14 August 2025

Date of orders:

7 November 2025

Decision date:

07 November 2025

Jurisdiction:

Civil

Before:

Habib SC DCJ

Decision:

(1)   The sum of $728,324.49 paid into the Court pursuant to orders made by Andronos SC DCJ on 20 August 2024 and all interest accrued thereon be paid to the Second Cross-Claimant (Nathan);

(2)   The First Cross-Claim is dismissed.

(3)   The Parties are to inform my Associate within 7 days if they require an oral hearing on the question of costs. If the Parties indicate that they do not require an oral hearing, and are content for the Court to deal with the question of costs on the papers and in Chambers, then:

(a)   Nathan is to serve his submissions on costs, together with any affidavits in support, within 7 days of notice being given by both Parties to my Associate that an oral hearing is not required. Without leave, the submissions are to be no more than 5 pages;

(b)   Kevin is to serve his submissions on costs, together with any affidavits in support within 7 days of receipt of Nathan’s submissions. Without leave, such submissions are to be no more than 5 pages.

Catchwords:

BANKING AND FINANCE — Banks — Banker and customer relationship — creation of relationship – identification of customer

AGENCY — Creation of agency — Signing documents — authority of agent — Ratification

EQUITY – Trusts – Express trusts – Resulting trusts

Legislation Cited:

Anti-MoneyLaundering and Counter-Terrorism Financing Act 2006 (Cth)

Civil Procedure Act 2005 (NSW) s 144

Minors (Property and Contract) Act 1970 (NSW) ss 6(1)(m), 17, 18, 19, 46

Uniform Civil Procedure Rules 2005 (NSW) r 14.26(2)

Cases Cited:

Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498

Australian Military Bank Ltd v Pike [2025] NSWDC 311

Bateman Television Ltd v Bateman [1971] NZLR 453

Bennett v Strauss (2016) 341 ALR 141; [2016] NSWCA 24

Bosanacv Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34

Brockway v Pando [2000] WASCA 192

Brown v Forrest [2017] NSWSC 1810

Browne v Dunne (1893) 6 R 67

Brun-Smits v Bank of Queensland Limited [2015] FCA 362

Davison v Vickery’s Motors Ltd (In Liq) (1925) 37 CLR 1; [1925] HCA 47

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7

Fountain v Alexander (1982) 150 CLR 615, 626 (Gibbs CJ), 634 (Mason J); [1982] HCA 16

Haythorpe v Rae [1972] VR 633

Hewer v Bryant [1970] 1 QB 357

Irwin v Pamplin (No 4) [2024] NSWSC 73

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9

Keighley, Maxsted and Co v Durant [1901] AC 240

Le v Yi [2025] NSWCA 227

Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509

Lordianto v Commissioner of the Australian Federal Police (2018) 100 NSWLR 630; [2018] NSWCA 199

McLaughlinv City Bank of Sydney v (1912) 14 CLR 684; [1912] HCA 16

Mills v Walsh [2022] NSWCA 255

National Australia Bank Ltd v Dionys [2016] NSWCA 242

Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25

Pacific Carriers Ltd v BNP Paribas (2004) 78 ALJR 1045; [2004] HCA 35

Pearson v Pearson [1961] VR 693

Perry v Perry [2021] NSWSC 1669

Re French Caledonia Travel (2013) 59 NSWLR 361; [2003] NSWSC 1008

Re Hett, Maylor & Co Ltd (1894) 10 TLR 412

Robinson v Midland Bank Ltd (1925) 41 TLR 402

Russell v Scott (1936) 55 CLR 440; [1936] HCA 34

Saudi Arabian Money Agency v Dresden Bank AG [2004] EWCA Civ 1074

Shao v Crown Global Capital Pty Ltd (in prov liq) [2025] HCA 43

Soliman v University of Technology, Sydney [2009] FCAFC 159

Stoney Stanton Supplies (Coventry) Ltd v Midland Bank Ltd [1966] 2 Lloyd Rep 373

The Venture [1908] P 218

Thomson v Federal Commissioner of Taxation (1949) 80 CLR 344; [1949] HCA 63

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Tonna v Mendonca [2019] NSWSC 1849

Uttamchandani v Central Bank of India (1989) New Law Journal 222

Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2020] NSWSC 434

Texts Cited:

G E Dal Pont (ed), Law of Agency (3rd ed, 2014, LexisNexis Butterworths)

J D Heydon and M J Leeming (eds), Jacobs’ Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths)

Category:

Principal judgment

Parties:

Australian Military Bank (Plaintiff)
Kevin James Pike (First Defendant / First Cross-Claimant)
Nathan Pike (Second Defendant / Second Cross-Claimant)

Representation:

Counsel:
A Crossland (First Defendant / First Cross-Claimant)
S Ower KC and A Oakes (Second Defendant / Second Cross-Claimant)

Solicitors:
N Christiansen (Plaintiff)
Digital Age Lawyers (First Defendant / First Cross-Claimant)
W Advisers (Second Defendant / Second Cross-Claimant)

File Number(s):

2024/109487

Publication restriction:

Nil

Table of contents

Introduction

Facts not in dispute or otherwise established by contemporaneous documents

Witnesses

Kevin’s case

Kevin

Ms Colwell

Nathan’s Case

Nathan

Izabela

Parties’ submissions on witnesses

Nathan’s submissions

Kevin’s submissions

Court’s Approach to the witnesses

The Parties

Kevin

Nathan

Other witnesses

Ms Colwell

Izabela

Contentious factual Issues

Did Kevin deposit money into accounts in Nathan’s name in lieu of paying child support payments?

Did Kevin speak to Nathan from time to time about accounts at ADCU or AMB in Nathan’s name?

Did Nathan give money from his piggy bank to Kevin for deposit into accounts in his name and did Kevin so deposit? Did Nathan receive approximately $500 in $0.50 pieces from his grandmother and was it deposited into accounts in his name?

Was there a joint account in the name of Kevin and Nathan in addition to the Access Account?

Did Nathan or Kevin sign Nathan’s name in the Authority Document?

Legal basis of the Parties’ claims

Nathan’s Claim

Kevin’s Claim

Consideration

Banker-Customer Relationship

Identity of contracting Parties

Parental Power and the Access Account

Agency and the Access Account

Agency

Ratification

Post-contractual conduct

The Term Deposit

Trust Claim

Kevin’s Case

Nathan’s claim for payment by Kevin of AMB’s costs

Costs

Conclusion

JUDGMENT

Introduction

1. On 20 August 2024, the Plaintiff, Australian Military Bank Limited (AMB), was granted relief by way of interpleader in relation to an amount in the name of the Second Defendant in an account ending in “0095” (the Term Deposit). Orders were made which, amongst other things, ordered AMB to pay that amount (subject to a deduction for AMB’s costs) into Court. The amount paid into Court was $728,324.49 (the Fund).

2. Interpleader relief was granted by this Court because two people claimed legal and beneficial entitlement to the amount held in the Term Deposit. Those two people were the First Defendant, Mr Kevin Pike, and the Second Defendant, Mr Nathan Pike. They are father and son respectively. In this judgment, for convenience and with no disrespect, I will refer to them as Kevin and Nathan.

3. Both Kevin and Nathan brought competing cross-claims, each claiming entitlement to be paid the Fund.

4. In summary, Kevin’s claim is that he, at all times, was the legal owner of the Term Deposit (and other relevant accounts) and his beneficial interest followed his legal ownership. Kevin did not bring any alternative claim that if Nathan was the legal owner of the Term Deposit, Nathan held that legal ownership on trust for Kevin, whether by way of an implied, resulting, or constructive trust.

5. In summary, Nathan’s claim is, in substance, that he, at all times, was the legal and beneficial owner of the Term Deposit (and other relevant accounts). Alternatively, Nathan claims that if Kevin was the legal owner of the Term Deposit, Kevin held the Term Deposit on trust for Nathan.

6. At the beginning of the hearing of this matter I delivered an interlocutory judgment on the question of the Court’s jurisdiction to hear the matter. I concluded that the Court did have jurisdiction and that s 144 of the Civil Procedure Act 2005 (NSW) was not engaged. That judgment appears at [2025] NSWDC 311.

Facts not in dispute or otherwise established by contemporaneous documents

7. Nathan was born in February 1976 to Kevin and his then wife, Izabela Pike (again, with no disrespect, I will refer to her as Izabela). Kevin and Izabela separated in July 1976 and divorced in October 1978. They had lived in Giralang in the Australian Capital Territory. After their separation, Izabela and Nathan moved to live in Orange, New South Wales. Kevin later moved to Orange and worked as a journalist at the Central Western Daily. He later moved to Sydney.

8. On 26 March 1979, the Family Court of Australia made maintenance orders that required Kevin to pay $20 per week for Nathan’s maintenance, commencing on 8 April 1979. Prior to that time, the Court had made orders requiring maintenance of $15 per week.

9. In 1982, Kevin joined the Australian Navy. As a member of the Defence Force, he became a member of the Australian Defence Credit Union (ADCU) on 23 August 1983. He was given member number “xxx535” and he opened an account in his name with ADCU which he described as his military account (Military Account).

10. In around 1983, when Nathan was living in Orange, Kevin opened a bank account in Nathan’s name at the Commonwealth Bank of Australia (CBA).

11. In April 1986, Kevin’s son, Jack Pike, was born (again, with no disrespect, I will refer to him as Jack).

12. In January 1989, Kevin’s son, Benjamin Pike, was born (again, with no disrespect, I will refer to him as Benjamin).

13. On 14 August 1989, Kevin signed an application for membership and a share in ADCU (the 1989 Application). The application form had various boxes in which details of the applicant were to be inserted. In this application, within the box headed “Surname”, the name “Pike” with an initial “N” was recorded. In the box headed “Christian Names”, the words “Kevin Pike in trust for Nathan Pike” were recorded. In the box headed “Occupation” the word “child” was recorded. The address recorded in the application was Kevin’s address in Potts Point, New South Wales. Immediately above Kevin’s signature, the following words were recorded:

“I hereby apply for membership and one $2.00 share in the Australian
Defence Credit Union. I agree to pay any charges required by the credit union listed in the rules and further agree to be bound by the rules of the credit union and by any alterations thereof registered in accordance with the credit union Act”

In a section of the application containing the words “Office Use Only”, next to the words “Account No”, is the number “xxx671” (“Nathan’s membership number”). Other documents of ADCU describe that number as a “member number”.

14. Also on 14 August 1989, an account (later described by ADCU as the “S1-Access” account) was opened with ADCU in the name of “Pike Nathan”. The initial passbook for that account records a deposit on 14 August 1989 of $5. Next to the name “Pike Nathan” the following words appear on the passbook: “Kevin Pike To Operate”. The passbook had a section into which was inserted a member number. The number “xxx259” was initially inserted but then crossed out and Nathan’s membership number was inserted. There is no direct evidence as to who inserted and then crossed out the initial member number and inserted the second member number, however, I infer it was someone at ADCU.

15. On 26 October 1990, a document titled “Authority to Operate Account” was executed (the “Authority Document”). The document had two signature points – one above the words “Member’s signature” where the name “N.Pike” appeared and one above the words “Signature of Authorised Agent”, where Kevin’s signature appeared. There is a dispute between the parties as to who wrote the words “N.Pike” and I will address that issue below. The document states the following:

“I have authorised Kevin Pike to sign on my behalf withdrawal forms/notices
on my account number “xxx671”. Specimen signatures appear hereunder. Therefore, until you have received written notice to the contrary, please act upon all withdrawal forms/notices so signed. All previous authorities are hereby superseded, except as regards withdrawal forms/notices already signed”.

16. The S1-Access account started to be known by that name in 1991. At a much later point, ADCU changed from being a credit union to becoming a bank with the name AMB. AMB, at a point in time, started to describe accounts not only by the name of the account type and by membership numbers, but also by reference to a BSB number and an account number (which was different from the membership number). For example, in account statement 110, for the period ending 30 September 2017, the S1-Access account had an account number ending in “4688” associated with it. Ultimately, the account became to be identified on statements by reference only to the account number ending in “4688” and the word “Access”. Although Kevin did not concede this to be the case, the documents clearly bear this out. In this judgment, I use the term “Access Account” to refer to this account (that is, the S1-Access Account which became the account ending in “4688”). Neither party submitted, or otherwise suggested, that the change from ADCU, a credit union, to AMB, a bank, had any impact on the legal and beneficial ownership of the Access Account from its inception to the date of the interpleader relief.

17. Kevin always operated the Access Account prior to 2022. He deposited money into the account and withdrew and transferred money out of the account. He used money from the account to open a series of term deposits with ADCU and AMB. On maturity of those term deposits, he ordinarily instructed that the matured amounts be deposited back into the Access Account.

18. Kevin organised term deposits over time in his name, and in the names of Jack and Benjamin. Each of Kevin, Jack, and Benjamin had separate membership numbers associated with the term deposits in their respective names.

19. Kevin also organised a series of term deposits with ADCU and then AMB in the name “N Pike”. Initially ADCU issued certificates in relation to each of the term deposits. Each certificate had details of the deposit date and the maturity date and relevant interest rate for that term deposit. Each certificate also had terms and conditions set out in the certificate. Early certificates contained a condition that, unless contrary written instructions were received before the maturity date, ADCU would direct the funds in accordance with instructions received at the time of the investment. Later certificates contained a statement that, if ADCU did not hear from the depositor, the term deposit would be automatically renewed for the same term at the rate applicable on maturity.

20. The first certificate relating to a term deposit in Nathan’s name that was in evidence was one that had a deposit date of 6 September 1994. That term deposit was in the amount of $2,590. The Term Deposit into which the disputed funds were invested was opened on 28 March 2019 in the amount of $675,000. The $675,000 deposited into the Term Deposit was withdrawn from the Access Account. On 1 October 2019, $20,000 was added to the Term Deposit, drawn from the Access Account. On 30 December 2020, $40,000 was added to the Term Deposit, again drawn from the Access Account. The Term Deposit was in the name of “N Pike”. In evidence there are statements (being account summaries addressed to “Mr N Pike”) bearing Nathan’s membership number which, among other things, record details for the Access Account and the Term Deposit. Against the Term Deposit are the words “Owner/s: Mr N Pike”.

21. On 31 December 2020, Kevin emailed AMB with instructions to reinvest $740,000 in the Term Deposit for another 6 months and, on maturity, to return the principal plus interest to the Access Account. On the same day, AMB emailed Kevin and told him that it could not take instructions to move the principal of the Term Deposit on maturity to the Access Account. AMB advised that such action would be deemed as closing the term deposit, and that if he wished to do so, the bank would require a signed form from the “main account holder” – plainly a reference, by AMB, to Nathan. At some point, it appears that AMB changed its practice so that it would not move funds from a term deposit into the Access Account without Nathan’s signature on the relevant bank form. For at least two decades prior to this time, ADCU and then AMB were prepared to do that on Kevin’s instructions.

22. On 14 January 2021, Kevin emailed AMB requesting a form to turn “Nathan’s account into a joint account”. On the same day, AMB emailed Kevin, declining his request to turn “Nathan’s account” into a joint account. AMB indicated it could not change the “relationship” mid cycle (this was apparently a reference to the Term Deposit).

23. On 6 February 2022, AMB emailed Kevin, indicating that it was seeking, in relation to accounts in Nathan’s name, to meet its obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and the “AML/CTF Rules” which, it said, required AMB to have in place customer identification processes and procedures. There is no evidence that AMB engaged in any such identification processes and procedures in relation to Nathan prior to 2022.

24. On 13 December 2022, Nathan requested AMB to remove Kevin as an authorised signatory. AMB did so. AMB notified Kevin of his removal the next day. By this stage, the dispute between Kevin and Nathan in relation to the amount in the Term Deposit was before Australian Financial Complaints Authority (AFCA).

25. On 28 December 2022, AMB emailed Kevin and said that he was no longer an “authority to operate" on the Term Deposit, however, remained an ‘authority to operate on the access account’. It also said that the Term Deposit and Access Account were both in Nathan’s name.

26. The funds that were invested in the Term Deposit continued to be rolled over on maturity until 30 August 2024 when the Term Deposit account was closed. The amount then standing to that account was $801,233.92. That amount was then credited to account number “xxxxxx208” which had, on the account summary for Nathan’s membership number, the words “owner/s Mr N Pike”. That account appears to have been opened on or about 1 July 2024 pursuant to a request from Nathan. However, I infer that the payment into this account was merely an administrative action by AMB to place itself in a position to pay the funds into Court because the payment into Court from that account occurred on the same day as the money was credited to the account. That is, I do not take anything from the fact that AMB placed the funds from the Term Deposit into another account in Nathan’s name before paying that amount into Court. That amount, less an amount of $72,909.43 on account of AMB’s costs of the interpleader proceedings, was paid into Court pursuant to the Court’s orders. The amount paid into Court was $728,324.49.

27. Nathan did not engage with AMB in any way in relation to the opening of any of the term deposits or in relation to the instructions to be adopted at maturity until December 2022. Nathan emailed AMB both in December 2022 and in June 2023 seeking to give AMB certain instructions in relation to the Term Deposit. There is no evidence that AMB acted upon those instructions. Nathan by email dated 30 June 2023 sought the transfer of the funds in the Term Deposit on maturity to an account in his name in a different financial institution. AMB did not carry out those instructions and the dispute between the parties in relation to the Term Deposit crystallised.

Witnesses

28. Several factual issues were raised by Kevin and Nathan. I set out below, in summary, the evidence of the witnesses called by them. I do not, however, generally refer to the evidence related to the facts set out paragraphs [7]-[24] above. I proceed to make findings only in relation to those factual disputes that I consider relevant to a determination of the legal issues raised in the proceedings.

Kevin’s case

Kevin

29. Kevin was the only witness in his case who prepared an affidavit. Ms Colwell, Kevin’s second ex-wife gave evidence pursuant to leave granted during the hearing. I will deal with that evidence below.

29. Kevin relied on four affidavits he made in the proceedings. In summary, he gave the following evidence in his affidavits:

1. After his separation from Izabela, he attempted to see Nathan on various occasions but his access to Nathan was made difficult by Izabela and her mother. In around late 1978 to early 1979, he moved to Orange to work as a sports reporter for the local newspaper. He remained in Orange until he joined the Navy in 1982. Izabela continued to make Nathan unavailable for visits;

2. In 1982, he moved from Orange to Sydney. He did not see or speak to Nathan again during his childhood and the next time he saw him was on Father’s Day just before Nathan was finishing high school or had just started university;

3. He opened an account for Nathan at CBA because he believed Izabela was receiving a parenting payment or subsidies from the government for having Nathan and he wanted to ensure that at least some of that money was set aside for Nathan;

4. He opened passbook accounts in the name of Nathan, Jack, and Benjamin with himself listed to operate the accounts. He opened those accounts to put aside money so that it could pass to his sons when he died. He periodically put money into the separate account of his three sons. He gave evidence about the source of the money he deposited in term deposits. His evidence was that the money came from various sources, being his savings; a long service payment of about $80,000 that he received in 1998; the money in the passbook accounts; and a lump sum superannuation payment of about $500,000 that he received in 2005. His evidence with respect to the superannuation payment was shown to be incorrect during his cross-examination. In fact, none of the money related to his superannuation payment was deposited into any term deposits but rather used to receive an ongoing superannuation pension, and otherwise towards his mortgage on his home at Rushcutters Bay. With respect to the $80,000 long service payment, his affidavit evidence is unreliable because, in cross examination, he said he would have deposited it into his Military Account and invested it “somehow”. Accordingly, that amount may or may not have found itself into the Access Account or a term deposit;

5. He did not speak to Nathan about the Access Account or the term deposits in Nathan’s name. In about 2017, upon maturity of the then extant term deposits that he had set up in his sons’ names, he gave directions that all the funds in all the term deposits be deposited into his Military Account. He said that by 2016, the Access Account (which he described as an account ending in “4688”) contained a substantial sum, being the combined sum of the separate term deposits he had made in each of his sons’ names. He then used that substantial amount to create new term deposits, and ultimately, the Term Deposit.

31. Kevin was cross-examined. During his cross-examination:

1. He accepted that from time to time he would enter term deposits in his name, separate to those entered in the name of Nathan, Jack, or Benjamin;

2. He agreed that when he applied for membership in 1989, he was applying for membership for Nathan, because he was already a member. He first said he did not write the words “in trust” on the application. He then said he must have written those words. Ultimately, he settled on the position that he was not sure whether he wrote the words “in trust” but accepted that he signed the application with those words on it. He said that he arranged $20 per week payments into Nathan’s account until 2005. He said he thought the payments would have finished when he left the Navy because he arranged it during that time. It was not until he was in the witness box that he said he did not know the payments continued. He thinks that the payments continued to be made because he did not stop it;

3. He said he attended Orange Courthouse to pay child support until it came out of his pay;

4. Contrary to evidence given by Nathan, he said he never saw a piggy bank owned by Nathan from which Nathan gave him money to deposit into his account at CBA and ADCU. Indeed, he was very firm that Nathan never gave him any money;

5. He did not tell Izabela about the CBA account. He said in cross-examination (though not in his affidavit) that the account also had the purpose of depositing his money;

6. He was shown a Centrelink application dated 5 April 2013. He accepted that he signed the application on 3 April 2013. He did not recall the application. He accepted that the application contained what he believed was his mobile number and email address at the time. He accepted that the application recorded his account number and member number with ADCU, and that it was his signature declaring that the information on the application form was complete and correct. He accepted that even if he had not actually written the information on the application form, he would have checked the form before signing the declaration. On the application form in response to a request for the inclusion of savings accounts, cheque accounts, term deposits, joint accounts including accounts held in trust or under any other name, he recorded his account with ADCU under his own membership number, accounts with two other banking institutions, but did not record the Access Account nor any term deposits in Nathan’s name. He did not record any of the accounts in Jack’s or Benjamin’s name. He gave various responses in cross-examination as to why he did not record those accounts. First, he said he did not include the accounts because he was managing the accounts. Secondly, he said that the accounts or the money in the accounts “wasn’t for me at that stage”. Thirdly, he said it was his money but, because he was managing the money, he thought he did not have to tell Centrelink. Ultimately, he said that he neglected to tell Centrelink and that it appeared to be a mistake;

7. With respect to the payment of tax, he said that he never told the Australian Taxation Office that the accounts in Nathan’s name belonged to him and he said that was so because he was managing the account and that “it didn’t belong to me”. He caused a tax file number to be issued for Nathan and told ADCU and AMB about that;

8. He said that he never mentioned any account with Nathan and that Nathan would not have known about the accounts until the bank told him in 2022. He said that none of his sons knew that there were accounts;

9. With respect to a phone call to Nathan in 2013 when he was at Oxford (to which reference will be made below), he said that he called because AMB wanted proof that Nathan existed. He said that he was going to ring up and ask Nathan to send him a copy of his passport, but he was not going to tell Nathan about any accounts;

10. He was taken to an account statement for the period ending 31 December 2022 in which the Access Account was described as access account “K and N Pike”. Kevin persisted with his evidence that he established a joint account and put all the money from the different accounts into that joint account which then funded term deposits in Nathan’s name. Notwithstanding being shown documents that plainly established that the Term Deposit was drawn from the Access Account, Kevin would not accept that there was no separate joint account from which the money was drawn. He did not accept that the S1-Access account was eventually given an account number ending in “4688” but rather said the “4688” account was the joint account for “Kevin and Nathan Pike”. He claimed that for some reason the bank had just put that account in Nathan’s name. His evidence was that it was incorrect to describe the Access Account as being owned by Nathan or in his name but rather it should have been in the name “K and N Pike”. He was taken to an email chain from January 2021 which included an email from him to AMB dated 14 January 2021 in which he asked the bank for a form to turn Nathan’s account into a joint account. It appears that, between June and September 2021, the account name was changed from “N Pike” to “K and N Pike” and it still had that joint name for the statement period ending 31 December 2021. However, in the statement for the period ending 31 March 2023, the account name was changed back to “N Pike”. At all times, the account was described on the account statements as owned by Nathan;

11. With respect to Nathan’s evidence that his grandmother told him she was gifting him $80,000, he said his mother, whom he described as a pensioner living week-to-week, would not have had $80,000 in her whole lifetime. She sold her house for approximately $40,000, of which she gave Kevin $10,000 and his brother $20,000 and she moved in with his brother. He described the notion, advanced by Nathan, as “ridiculous”;

12. In relation to the Authority Document, he claimed (for the first time in the proceedings during cross-examination), that he printed Nathan’s name. He said he had permission from AMB to use Nathan’s name. He said Nathan did not know anything about any account.

Ms Colwell

32. Ms Colwell gave evidence without an affidavit having been served. She was Kevin’s wife for 11 years from 1983 to 1994. She had not had any contact with Kevin since the divorce. She gave evidence that during her marriage she recalled that Kevin had made child support payments at Orange Courthouse. She recalls Kevin telling her that he walked past the Courthouse with Nathan and that Nathan would say to his grandmother, that “we” go in there (the Courthouse) and “get some money because that’s where Mum used to pick it up from”. She said the discussions about child support occurred in the context of their budget. Once they were married, she said the child support payments were digitally paid directly from Kevin’s pay. Ultimately, in cross-examination, she accepted that her understanding about child support payments derived from what Kevin told her. She could not give any direct evidence of payments being made by way of child support.

Nathan’s Case

Nathan

33. Nathan relied on his two affidavits and also an affidavit of Izabela.

34. In his affidavit, he gave evidence that:

1. He had limited contact with his father throughout his childhood. He said that when his father moved to Sydney, he saw him approximately three to four times a year;

2. He recalled numerous occasions when he waited at CBA in Orange while his father spoke to people at the bank (Kevin denies that he took Nathan to CBA);

3. He had a piggy bank when he was a child and placed in it cash gifts he received from relatives and friends during his childhood. He estimated he would receive approximately $200 per year. He said he received other money from time to time, including money from cherry picking when he was 10 to 14 years old. He said he would give his piggy bank to his father and ask him to deposit the money in the CBA account. He gave evidence that, when he was around seven or eight years old, he received a large number of coins from his grandmother which were mostly made up of $0.50 pieces. He recalls that his grandmother told him it was around $500. He said that Kevin told him that he would deposit those coins into the CBA account;

4. His mother had told him that Kevin did not make child support payments as he was required by the Court to do, and that his father sometime in the early to mid-1980s said to him not to worry because he was depositing money into Nathan’s account for him. Kevin denied that this occurred;

5. Sometime after his father moved to Sydney, he had a conversation with his father about opening an account at ADCU. He said the conversation was in person at Orange and his father had said that Nathan was better off having his money deposited with ADCU because it paid high interest rates. In relation to the Authority Document, his evidence was that it was his signature on the document and that he recalled signing the document;

6. From around the age of 13 or 14 years, and onwards, he was not aware of the specifics of his account or accounts with ADCU and AMB, however, he was aware that his father was managing them. He recalled his father from time to time referring to his accounts as a “term deposit”;

7. At some point, his father arranged his money in the CBA account to be transferred to ADCU, and he gave evidence that he recalled that his father told him that around $3000 was in the CBA account. He gave evidence that he remembered going to ADCU with his father wearing his navy uniform and recalled other people in the branch wearing uniforms. He gave evidence that, in the early 1990s, during a visit with his paternal grandmother, his grandmother said she had gifted him a large amount of money, namely $80,000. It was his evidence that his grandmother had told him she put the money in his term deposit. He gave evidence that, from time to time, his father told him that he had made deposits into his term deposit;

8. He gave evidence of a conversation with his father in which his father told him that he need not worry about child support because he was putting money into his account and that the money would be there when Nathan needed;

9. He gave evidence that in 2013 his father left a voicemail while he was lecturing at Oxford in which Kevin said that there was almost $500,000 in the term deposit. Nathan tendered an email that he sent on 24 November 2013 to his mother in which he wrote the following: “I had a voicemail in zoology from dad: there’s almost half a million in my credit union account …”;

10. Between 2002 and 2022, Nathan resided in England.

35. Nathan was cross-examined. In summary, the salient matters arising from cross-examination were the following:

1. He said it was not his experience that his mother made it difficult for Kevin to visit him. While he accepted that he did not know anything about his mother denying visits to Kevin, he did not accept that she limited Kevin’s contact;

2. He was firm in his evidence that he remembered visiting CBA in Orange with his father. With respect to the $0.50 pieces given by his grandmother he said it was a few buckets full. He said there were several buckets of $0.50 pieces which he saw adults carrying to a car. He said what he saw was not anything to do with CBA. He accepted he did not ultimately see what was done with the $0.50 pieces. With respect to the piggy bank, he did not have a firm sense of how many occasions it was given to Kevin, but he thought it was more than the three occasions mentioned by his mother. He accepted, however, he had no reason to doubt her recollection given that she was an adult at the time and he was a child. He accepted he does not have a single clear recollection but rather a general recollection of giving his piggy bank to Kevin on many occasions. Ultimately, however, there is no evidence that either any piggy bank money or the $0.50 pieces were ever deposited into any account;

3. He accepted that prior to 2022, no term deposit certificates were addressed to any address that he had lived in. He accepted he did not have any copies of any passbooks related to accounts in his name at either ADCU or AMB. He accepted he never personally made a deposit;

4. He said that his father regularly and throughout his life mentioned term deposits and that it was something he felt his dad was proud of. He thought his father wanted him to know that he was being looked after. Nathan accepts that he only had generalised recollections of such conversations rather than recollections of specific occasions;

5. In relation to the Authority Document, he said that he recalled that he was with a friend painting a fence and that his father came and indicated that he wanted him to sign a document. He said he felt very special to be asked to sign a bank document which is why he remembers it. That aspect of his evidence is not contained in his affidavit. He cannot be certain that the document he signed was the Authority Document, although he remembers signing a document that his father said was to give him power over his account;

6. He accepted that his evidence was that he spent his whole adult life not knowing any details about the money in the accounts but having an expectation that he would receive it at some point in the future. He said that his understanding was that the money was there when he needed it and he did not know when he was going to need it. He said he saw the term deposit as a safety net. He never asked how the amounts in the term deposits grew to such a large amount.

Izabela

36. Izabela was called and cross-examined. She gave evidence that, although Kevin made some maintenance payments during their divorce proceedings, he stopped making payments after the proceedings concluded and never provided any financial support to Nathan or her following the divorce. She gave evidence that her greatest wish, after the divorce, was for Kevin to leave Nathan and her alone so she could be free from him. She gave evidence that she feared him, especially after he had been drinking. She gave evidence of a conversation with Kevin in Orange in which he explained that he was not paying maintenance but that he would look after Nathan in his own way. She gave evidence that she recalled on three occasions where she saw Nathan giving his piggy bank to Kevin.

37. She gave evidence that in the early 1990s, Nathan had told her that his grandmother had given him an $80,000 gift. She said that she had subsequently called Nathan’s grandmother, thanking her for the gift and that the grandmother said, “I hope that he continues playing piano. He might like to use it to buy a piano.” She gave evidence that in early 1994, she called Kevin on the telephone from Orange to ask if he could help with Nathan’s tuition and accommodation costs as he was attending college at the University of Sydney. She said the gist of Kevin’s response was that he declined to provide that financial assistance but said there will be money there when Nathan needs it and that there was a very healthy account for Nathan when he turns 18 or when he needs money.

38. In cross-examination, Izabela accepted that when she thought Kevin might be coming to see Nathan in Orange, she would take Nathan away so he could not see him. She said her relationship with Kevin improved years later. She accepted that she did not have a good recollection of events from 1979 in relation to child support payments. She recollected that Kevin did pay child support payments for a time, but her recollection was that at some point he may not have been paying childcare. She accepted that she did not have a clear recollection of the timing, duration and dates concerning the matters to which she gave evidence. She accepted that she could not be sure of everything she gave evidence about. She did not know anything about Nathan having experience of getting money at Orange Courthouse. She said she never went to the Courthouse to pick up money. She said she received child support payments into her bank account for a short period, however, once they stopped, they did not resume. Her evidence concerning the $80,000 was that Nathan’s grandmother was very old at the time and had been in hospital for two weeks. She did not how Nathan’s grandmother had $80,000.

39. She said that she did not speak to Kevin very often, but she recalled him saying that he was looking after Nathan in his own way. She did not know the details of any bank account for Nathan other than that it existed from things that Kevin told her.

Parties’ submissions on witnesses

Nathan’s submissions

40. Nathan submitted that Kevin was an unreliable, and at times, untruthful witness. He submitted that Kevin was willing to shape his evidence when he thought it would assist his case. Nathan submitted that Kevin’s evidence should only be accepted where it is supported by objective evidence, inherently plausible, or against his own interest. He submitted that his testimony was frequently evasive, inconsistent with contemporaneous documents, and coloured by a sustained tendency to assert ownership of the funds regardless of the legal and factual premise been put to him. He gave the following examples:

1. He submitted that Kevin’s evidence that he did not know the $20 deposits into the Access Account continued for many years is unbelievable;

2. He suggested that Kevin had a striking lack of memory but also a tendency to invoke a lack of memory selectively when questions became difficult;

3. He submitted that Kevin’s evidence on the account arrangements was both combative and implausible. He pointed to Kevin’s insistence that there was a separate joint account with Nathan notwithstanding being taken step-by-step through the account name and numbering changes of the Access Account. When pressed on the inconsistency of the documents to his evidence, Kevin resorted to blaming the bank, saying that the bank did strange things;

4. He submitted that Kevin’s evidence on child support payments was vague and consisted of shifting accounts;

5. He submitted that Kevin’s evidence in cross-examination conflicted dramatically with his evidence in his affidavits. He relied on Kevin’s evidence concerning his superannuation and long leave payments referred to above;

6. He submitted that Kevin’s demeanour reinforced the impression of an argumentative and self-serving witness;

7. He submitted that Kevin was willing to bend the truth to suit his own purposes and that this was demonstrated in his communications with AMB and AFCA upon discovering he could not move the disputed funds into an account in his name. In an email to the bank on 17 December 2021, Kevin said “…we have a term deposit this month. Please return to our joint account. Kevin and Nathan Pike.” Nathan submitted that the email implied that Kevin was writing with specific approval of Nathan which was not the case. On 16 May 2022, Kevin sent an email to AMB in which he explained the lack of contact with Nathan and his mother was because he had remarried and had no contact with them. However, as at May 2022, Kevin had been divorced from his second wife for 26 years.

41. Ultimately, Nathan submitted that the Court should approach Kevin’s evidence with considerable caution.

42. Nathan also submitted that the Court should draw inferences in accordance with the principles in Jones v Dunkel ^[1] because Kevin failed to call his other sons, Benjamin or Jack, to give evidence that he never discussed accounts with either of them. There was no reason they could not have given evidence in support of Kevin. However, to the extent discussions about accounts are relevant to the issues in this proceeding, those discussions relate to the accounts in Nathan’s name. There is no suggestion that either Benjamin or Jack could have given any material evidence relevant to those issues. I do not consider that it is appropriate to rely on their failure to give evidence for the drawing of any inferences in these proceedings.

    1. (1959) 101 CLR 298; [1959] HCA 9.

43. With respect to his own evidence, Nathan submitted that he was a credible and reliable witness and that his evidence was consistent with contemporaneous documents, wherever such documents existed. While his recollection was imperfect, he said he made concessions when appropriate rather than attempting to reconstruct events. I accept that Nathan sought to give evidence truthfully.

44. Nathan submitted that Izabela did her best to assist the Court with her evidence. He submitted that although her memory was limited, there was no basis to reject any part of her affidavit that was not the subject of specific challenge.

Kevin’s submissions

45. Kevin submitted that his evidence was given consistently, curmudgeonly, and laconically. He submitted he was affected by having understandable memory problems by the passing of time. He also submitted that although he was, perhaps, affected by a misplaced certainty on certain matters, he did not, assessed objectively, come across as lying in general to the Court. Kevin notes that King’s Counsel for Nathan did not on many instances consider it appropriate to expressly put to Kevin that he was lying. Allegations of untruths simply did not feature greatly in the way the cross-examination was conducted.

46. Kevin notes that in cross-examination, Nathan was unable to say with certainty that it was his signature on the Authority Document.

47. In particular, Kevin submitted that the Court ought not find that he was lying when he gave evidence that he signed “N Pike” in the Authority Document. He advanced the following reasons:

1. He gave evidence that ADCU allowed him to sign under the agreed management and that evidence was not challenged;

2. In those circumstances, he says that Nathan is not permitted to submit that Kevin’s evidence ought not to be accepted in his evidence;

3. The evidence was not so implausible or ridiculous that it should be rejected in the absence of challenge. In this regard, Kevin observes that the conduct generally of the ADCU/AMB over the history of its dealings was not characterised by a close adherence to the rules or formalities.

48. Further, Kevin submitted that by reason of the rule in Browne v Dunne,^[2] Nathan’s ability to submit that Kevin was lying with respect to his evidence concerning the Authority Document is limited. Kevin relied, in this regard, on the decision in Soliman v University of Technology, Sydney (“Soliman”). ^[3] I deal with that issue below.

    2. (1893) 6 R 67.

    3. [2009] FCAFC 159 at [6].

Court’s Approach to the witnesses

The Parties

Kevin

49. I do not accept Nathan’s submission that Kevin’s evidence, as a whole, should only be accepted where it is supported by objective evidence, inherently plausible, or against his own interest.

50. However, I consider that Kevin:

1. Was reluctant to concede matters which he considered were adverse to his case. I make this finding because:

1. He continued to assert the existence of a joint account with Nathan separately to the Access Account when the documentary evidence before the Court showed there was no separate joint account;

2. He did not accept that he ever spoke to Nathan about any account at ADCU or AMB, despite being aware that Nathan had emailed his mother about a voicemail left by Kevin in which he refers to Nathan’s account (to which I refer below). The contents of that email strongly suggests that Kevin had spoken about the account to Nathan prior to the date on which the voicemail was left;

3. He did not concede that the original S1-Access ultimately became account ending in “4688” despite being taken through the documentary record which established that fact;

2. Gave certain evidence that was implausible:

1. With respect to the opening of the CBA account, he said he never mentioned or discussed that account with Izabela. He could not explain how it was that the money paid to Izabela could find its way into the CBA account without Izabela knowing of the existence of the account;

2. He claimed that he did not know or appreciate that consistent deposits were being made by him of $20 per week into the Access Account (I infer from his own military account) until shown bank statements whilst in the witness box. I do not accept his evidence in this regard given that those payments continued to be made over several years and then ceased in 2021. I refer to this further below;

3. Was not careful in his evidence. His evidence in his affidavits concerning the source of money deposited into the Access Account or term deposits was shown to be materially incorrect;

4. Was plainly affected by memory lapses, which were understandable given the period of time since the important relevant events;

5. Gave his evidence, at times, in a way which sought to advocate his case rather than to do his best to assist the Court. I considered his demeanour in giving evidence reflected this approach. When confronted with bank documents that were inconsistent with his evidence, he had a tendency to suggest that the problem emanated from the relevant institution (for example, saying that they did some “strange things”).

Nathan

51. I consider that Nathan was an honest witness who answered questions in cross-examination thoughtfully and straightforwardly. He was prepared to make concessions in cross-examination. His evidence was affected by the fact that some of the events occurred when he was quite young, and thus some of his recollections were generalised rather than specific. Nevertheless, I considered his demeanour to reflect a witness who was seeking to put the truth before the Court without advocating for his position.

52. Whilst I do not accept Nathan’s submission referred to in paragraph [40] above (third sentence), I proceed on the basis that where Kevin and Nathan’s evidence conflict on matters concerning their dealings, or asserted dealings, with each other, I prefer the evidence of Nathan. I will accept his evidence in this regard unless it is inherently unlikely, unreliable, or otherwise contradicted by objective material.

Other witnesses

Ms Colwell

53. Ms Colwell was an honest witness. I accept her evidence.

54. As I have noted earlier, Ms Colwell gave evidence without an affidavit having been served from her. Nathan objected to leave being granted to Kevin to call Ms Colwell. I granted that leave because:

1. Based on an outline provided to the Court, her proposed evidence was of very short compass and unlikely to cause any delay to the proceedings;

2. Her evidence was directed to a specific event about which Kevin gave evidence during cross-examination (and which he had not referred to in his affidavit), namely that he attended Orange Courthouse to physically make child support payments;

3. I considered it likely at the time leave was sought that Nathan would submit that I should not accept Kevin’s evidence in relation to his payments at Orange Courthouse;

4. Ms Colwell’s evidence was being called to corroborate Kevin’s evidence;

5. Nathan would have an opportunity to cross-examine Ms Colwell;

6. Given that the alleged child support payments at Orange Courthouse occurred approximately 30 years ago, I considered it unlikely that records of such payments would exist;

7. I was prepared to permit Ms Colwell’s evidence to be interposed between Nathan’s evidence and Izabela’s evidence. That is, Nathan was able to call Izabela after Ms Colwell’s evidence so that she had an opportunity to address that evidence;

8. I did not consider it likely that there was any material prejudice to Nathan by Ms Colwell giving evidence without an affidavit having been served given the limited scope of the evidence and the unlikelihood of objective records existing of the alleged payments.

Izabela

55. Izabela was an honest witness who had limited recall of the events in relation to which she gave evidence. Nevertheless, she was able to recall specific matters which I accept and to which I refer below.

Contentious factual Issues

56. As I observed earlier, during the proceedings several factual disputes arose between the Parties, however, I have confined my findings on those matters that are material to the legal issues raised by the Parties. I set out certain of those findings below. Other findings on material contentious matters are made, otherwise, in the course of the judgment.

Did Kevin deposit money into accounts in Nathan’s name in lieu of paying child support payments?

57. Nathan submitted that Kevin deposited money into accounts in Nathan’s name in lieu of paying child support. He says that conduct is consistent with him being the legal and/or beneficial owner of the Access Account and Term Deposit.

58. Although Izabela’s memory in relation to child support payments was not good, she was clear that although child support payments were made for a period (which she could not identify), Kevin ceased making those payments. I accept that evidence.

59. Nathan gave evidence that at one point, Kevin told him not to worry about child support because he was putting money into “his account”. There is no contemporaneous note of this conversation and Kevin denies it. Nathan was only around 10 years old at the time, and there appears to have been no reason for Kevin to bring up child support payments with Nathan, unless, perhaps, Kevin believed Izabela was telling Nathan that he was not paying child support and he wanted to allay any concerns Nathan had. However, there was no evidence that Kevin believed that to be the case or was otherwise told that. I do not consider Nathan’s evidence in this regard as reliable, and I am not satisfied that Kevin said what Nathan attributed to him in this regard.

60. The Access Account records regular deposits of $20. Kevin said that up to 2005, he had arranged with the Navy to have an allotment of $40 per fortnight paid into the Access Account. He accepted that by 2011, there were payments of $20 per week being paid into the Access Account but he claimed that that continuation of payments into the Access Account from his account occurred without his knowledge. Indeed, he claimed that he only discovered that $20 per week had been taken out for many years after 2011 whilst in the witness box. He said he was unaware that the payments kept being taken out of his pay. The payments stopped in 2021, however, Kevin said he had no idea how they came to be stopped. I consider Kevin’s evidence in this regard as implausible. ADCU and AMB statements were sent to Kevin’s address. I consider it highly unlikely that he did not observe a regular $20 per week payment over many years, particularly when those payments stopped at some point.

61. Nevertheless, I do not find that these regular payments were made by Kevin in lieu of child support payments. The evidence concerning the extent to which Kevin made child support payments is too vague to be able to draw any reliable inferences in this regard.

62. In this regard, I refer to the evidence of Ms Colwell. As I noted above, she was Kevin’s second wife. Although her evidence that Kevin made child support payments was based on what Kevin told her (as opposed to direct knowledge), her evidence that child support payments were discussed between them as part of conversations concerning their budget, supports an inference that during their time together (or at least during part of their time together), Kevin was making such payments. I do not have any basis to infer that Kevin was lying to his second wife about his making of child support payments. No reason is advanced as to why he would have so lied.

63. It is unnecessary to make any finding concerning Kevin’s evidence that he made child support payments physically at Orange Courthouse.

Did Kevin speak to Nathan from time to time about accounts at ADCU or AMB in Nathan’s name?

64. Nathan’s evidence is that Kevin, from time to time spoke to him about accounts in his name. Kevin says he did not. I accept Nathan’s evidence that throughout his childhood, including after Kevin moved to Sydney, he saw or spoke to Kevin from time to time, though their contact was limited. I refer to my finding in [52].

65. Kevin did not give a cogent explanation, either in his affidavit or when giving his evidence, why he would not have spoken to Nathan about accounts in Nathan’s name – either the CBA account, or the Access Account, or term deposits. The effect of his evidence is that, although he operated accounts in Nathan’s name at CBA, ADCU, and subsequently AMB, he said nothing of their existence, even at a high level of generality, to Nathan.

66. Nathan’s evidence is that Kevin did speak to him, from time to time, about bank accounts in his name including the account at CBA, and at ADCU. He said Kevin, from time to time, would refer to Nathan’s term deposit. Indeed, he said that he felt those conversations were a form of bonding between he and his father – that is, it seemed to Nathan that Kevin took some pride in the fact he was “looking after” Nathan.

67. On 24 November 2013, Nathan sent an email to his mother which contained the following words:

“I had a voicemail in zoology from Dad: there’s almost half a million in my credit union account …”

68. It was not suggested to Nathan that he lied to his mother in this email. The email is significant in several ways:

1. It is consistent with Nathan’s evidence that his father spoke to him about his accounts;

2. It entirely contradicts Kevin’s evidence that he did not speak to Nathan about his accounts;

3. It refers to “my account” which is consistent with Kevin having described the account as Nathan’s account;

4. It refers to an account at the “credit union” which is consistent with Kevin having told Nathan that he had an account at a credit union and I consider it highly likely, in those circumstances, that Kevin would have told Nathan that it was ADCU;

5. The amount referred to in the email, namely “almost half a million” is consistent with the ADCU statements concerning the term deposit existing at the time. The September 2013 statement recorded the term deposit at $405,000 whilst the December 2013 statement recorded the term deposit at $442,000.

69. The content of the email undermines Kevin’s evidence that he did not mention to Nathan the existence of accounts that were in Nathan’s name. I reject Kevin’s evidence in this regard because:

1. He gave no cogent reason as to why he would not have mentioned the accounts to Nathan. He gave no explanation as to how it was that Nathan was able to write to his mother that “his account” at the “credit union” had almost $500,000. No suggestion was made that that information could have come from any source other than Kevin;

2. Nathan’s evidence about such discussions was consistent, and not shaken in cross-examination;

3. The email referred to above is objective, contemporaneous evidence consistent with Nathan’s evidence and inconsistent with Kevin’s evidence;

4. Of my findings at paragraph [52] above.

70. I accept Nathan’s evidence, and find that, from the time to time over the years since the opening of the CBA account, Kevin did mention and speak to Nathan about accounts opened by Kevin in Nathan’s name.

Did Nathan give money from his piggy bank to Kevin for deposit into accounts in his name and did Kevin so deposit? Did Nathan receive approximately $500 in $0.50 pieces from his grandmother and was it deposited into accounts in his name?

71. Nathan’s evidence in regard to his piggy bank and the $0.50 pieces from his grandmother is set out above.

72. Kevin vehemently denies receiving any money from Nathan. It was suggested to Kevin in cross-examination that he was tailoring his evidence to assist his case in this regard.

73. I accept Nathan’s evidence that he did, from time to time, give piggy bank money to his father. Notwithstanding Kevin’s strong denial, I make that finding because:

1. Of my finding at paragraph [52] above;

2. Because Kevin facilitated the opening of an account at CBA in Nathan’s name and that account, in Kevin’s words was “for Nathan”;

3. It was accepted that Nathan’s piggy bank did exist (Counsel for Kevin observed that Nathan had brought it to Court);

4. It is inherently plausible that a son would give piggy bank money to his father to deposit into an account opened for him by his father;

5. I have rejected Kevin’s evidence that he never spoke to Nathan about his accounts.

74. As noted earlier, Nathan gave evidence that his grandmother gave him approximately $500 in $0.50 coins. That would amount to 1000 $0.50 pieces. He said he recalled several adults carrying buckets of coins to a car. Although Nathan said in his affidavit that Kevin said he would deposit the coins for him, there is no evidence he gave the coins to Kevin. Indeed, in his cross-examination, he said his recollection of the coins had nothing to do with a bank. There is no other evidence supporting Nathan’s evidence in this regard. In short, whatever the position with respect to Nathan’s evidence of his receipt from his grandmother of approximately 1000 $0.50 coins, the evidence does not satisfy me that Kevin received the coins or that he deposited them into any account.

75. I am not satisfied that any money that was given by Nathan to Kevin found itself in any account in Nathan’s name. There is no direct evidence of that occurring. There is very scant evidence of the amount, if given, that would have been provided to Kevin at any particular time. No correlation between any such possible amounts and deposits into the accounts is established in the documentary record in evidence because for the period prior to 2011 (during which Nathan says he gave this money to Kevin) there are no records.

Was there a joint account in the name of Kevin and Nathan in addition to the Access Account?

76. As noted above, Kevin gave evidence that, in addition to the Access Account, he opened another account in around 2020 which was a joint account in both his and Nathan’s name.

77. There is no documentary support for Kevin’s evidence in this regard. Further, the documentary record establishes the following:

1. The Access Account was, other than for a brief time, in Nathan’s name;

2. On 14 January 2021, Kevin emailed AMB, saying in part, that “we were after a form to turn Nathan’s account into a joint account …” There is no evidence that Nathan authorised Kevin to seek a change in the Access Account;

3. In AMB account statements between 30 September 2021 and 31 December 2022, the Access Account was described as “Access Account K and N Pike” but described the owner of that account as Nathan;

4. In the statement for the period ending 31 March 2023 and the statements thereafter, the Access Account was once again in Nathan’s name alone, in the same way it was prior to 30 September 2021. At all times, the Access Account was recorded by AMB as owned by Nathan.

78. There is no evidence of the existence of a separate joint account other than Kevin’s evidence in cross-examination. In my view, the documentary record establishes there was no separate joint account, and I make that finding.

Did Nathan or Kevin sign Nathan’s name in the Authority Document?

79. A significant factual issue concerns the signing of the Authority Document. There is no dispute that Kevin inserted his signature above the words “Signature of Authorised Agent”. The dispute between the parties was the identity of the person who wrote “N Pike” above the words “Members Signature”.

80. With respect to Nathan:

1. In his affidavit evidence, Nathan said he signed the Authority Document;

2. In cross-examination, he described the circumstances in which he signed the Authority Document. As noted earlier, he said he was with a friend, painting a fence and his father wanted him to sign a document. He had to stop painting and move away from the fence to sign the document, which he did at a picnic table. He said he felt very special to be asked to sign a bank document and that is why he remembers it. He did not include that explanation in his affidavit though he said he did mention it to his lawyer;

3. He accepted that he cannot recall the document he signed but remembered that the purpose of the document was to give power to his father over his accounts. He accepted that he could not say with “certainty” that it was his signature on the Authority Document.

81. With respect to Kevin:

1. The first occasion in which Kevin gave evidence that he wrote “N Pike” on the Authority Document was in cross-examination;

2. Notwithstanding he made four affidavits he did not say in any of those affidavits that he wrote those words. The author of those words was, plainly, an important issue in the proceedings. At a minimum, his lawyers can be taken to have understood its relevance given Nathan’s express reliance on the Authority Document in his Cross-Claim;

3. He said that the bank allowed him to sign Nathan’s name;

4. He said Nathan did not know anything about the account. I have rejected Kevin’s evidence that Nathan did not know anything about the account;

5. It was put to Kevin that he was lying about the document to corroborate his evidence that he had not spoken to Nathan about his account.

82. As noted earlier, Counsel for Kevin submitted that Nathan had only a limited scope to assert that Kevin was lying about signing Nathan’s name on the Authority Document. He submitted that the proposition that Kevin was lying was put to Kevin on the narrow basis, at best, referred to in paragraph [81(e)] above. In making this submission, he relied on what was said by the Full Court of the Federal Court of Australia in Soliman, namely:

[6] In adversarial litigation there is a fundamental principle that a party should not be permitted to submit that a witness has lied on oath without it first being suggested to the witness that his evidence is false, and if the reason for the suggestion is not self-evident, the basis on which the suggestion is advanced so as to give the witness an opportunity to deal with the suggestion.

83. What the Full Court recognised in Soliman was that in certain circumstances there may be specific reasons why a party may wish to submit that a witness is lying. For example, a party may wish to submit a witness in a case is lying to avoid some embarrassment to a friend or relative. In such circumstances, unless the reason for the lie is identified, the witness may not have the opportunity to address the suggestion squarely. However, when a witness is the party advancing a case, a suggestion that he is lying to corroborate certain testimony he has given in support of his case is, in substance, a suggestion that he is lying to support his case.

84. Here, in my view, it was squarely put to Kevin, by King’s Counsel for Nathan, that he was lying that he signed Nathan’s name to corroborate his evidence that he had not spoken to Nathan about the account at ADCU, a matter in itself advanced as relevant to his case. Kevin could have had no doubt that what was being put to him was that he was lying to advance his case. That suggestion, in my view, was self-evident. The suggestion that Kevin was lying necessarily also encompassed Kevin’s assertion that ADCU allowed Kevin to sign Nathan’s name. Accordingly, I reject Kevin’s submission referred to in paragraph [82] above.

85. For the following reasons, I find that Nathan signed his name on the Authority Document:

1. Although Nathan could not say with certainty that it was his signature on the Authority Document, his evidence was that he did sign it. That is, although he allowed for the possibility that it was not his signature, that was not his position. Given the time that elapsed between the date of the Authority Document, and the time at which Nathan gave his evidence, it is unsurprising that he was not prepared to state the position, on oath, with certitude;

2. Nathan did not resile from his evidence that he recalled signing a bank document in the circumstances set out at paragraph [80] above. There is no other bank document in evidence, nor was the existence of any other bank document suggested by either party, on which Nathan signed his name that gave authority to Kevin to operate accounts at ADCU or AMB;

3. As at the date of the Authority Document, the passbook for the Access Account already had a note “Kevin to operate” written on it. That is, ADCU already knew that Kevin was giving instructions in relation to the Access Account. Whilst there is no direct evidence on the point, I infer that the Authority Document was required by the Bank to regularise, from the Bank’s point of view, Kevin’s operation of an account in Nathan’s name. The Authority Document was addressed to ADCU. The Bank knew, from the 1989 Application, that Nathan was a minor. Notwithstanding that, I infer that ADCU wanted a document signed by Nathan, the relevant member in whose name the account was in, to confirm the authority of Kevin to operate the account (at least with respect to withdrawals). It seems to me that it would have defeated the purpose of the Authority Document for ADCU to allow Kevin to sign Nathan’s name as the giver of the authority. To do so would give ADCU no further comfort that Nathan had given Kevin authority than the position that obtained prior to the execution of the Authority Document;

4. The first time Kevin gave evidence that he signed Nathan’s name was in cross-examination on the third day of the hearing. Part of his explanation for doing so was that Nathan knew nothing of the account. I have found that Nathan did know his father had opened an account for him at ADCU, and I have also found that Kevin spoke to Nathan about his accounts from time to time over the years. In his defence to Nathan’s Cross-Claim, Kevin did not deny that Nathan signed the Authority Document, but rather did not admit he signed it. Although under the Uniform Civil Procedure Rules 2005 (NSW) r 14.26(2), a non-admission operates in the same way as a denial, it is to be expected that if a party knows an allegation of fact is not true, that party will deny it. This is particularly expected if the allegation of fact is that one party signed a document and the opposing party asserts that they were in fact the one that signed the document;

5. My findings in relation to Kevin’s evidence referred to at paragraph [52] above. It is not necessary to find that Kevin was lying in his evidence about the Authority Document. I find his evidence was unreliable and I accept Nathan’s evidence.

86. In making this finding, I have taken into account the importance of this issue to the dispute between the Parties. I am comfortably satisfied, in the sense of real persuasion, that Nathan, and not Kevin, wrote the words “N Pike” on the Authority Document.

Legal basis of the Parties’ claims

Nathan’s Claim

87. In his Second Cross-Claim, Nathan:

1. Alleges that immediately before the money in the Term Deposit was paid into Court, the account was in Nathan’s name, and he claims he is the legal owner of the Fund and that he is presumed to be the beneficial owner of the Fund;

2. Alternatively alleges that the 1989 Application was made for him by Kevin on his behalf and that, by the Authority Document, he authorised Kevin to sign withdrawal forms/notices on his behalf. In his final submissions, he submitted that the Authority Document gave Kevin general authority to operate his accounts, and not merely an authority limited to withdrawal forms/notices. He says the conduct of Kevin was as agent for him;

3. Alternatively alleges that the funds deposited into the Term Deposit (and in earlier term deposit accounts) were transferred from the Access Account and, by reason of that fact, Nathan was the legal and beneficial owner of the Term Deposit when the Fund was paid into Court;

4. Alleges in the further alternative, that Kevin held accounts under Nathan’s membership number on an express trust by reason of a declaration of trust in the membership application and the subsequent opening of accounts under that number.

88. In his closing submissions:

1. Nathan submitted that Kevin applied for his membership and opened the Access Account as his agent by reason either of his power as parent or guardian, or pursuant to express authority given by Nathan. Nathan claims that, by reason of those matters, he is the legal owner of accounts in respect of his membership number;

2. Nathan submitted that if Kevin was not, at the time he opened the Access Account, authorised to act as Nathan’s agent, Nathan ratified his conduct. He relied, principally on the Authority Document (the first ratification argument). Further, Nathan relied on other conduct as amounting to ratification, namely the provision of money to Kevin and the discussions concerning his “term deposit” (second ratification argument). Kevin claims that Nathan’s submissions in this regard are not pleaded in Nathan’s Cross-Claim and he objects to Nathan relying on those matters. In my view, the first ratification argument is open to Nathan on the pleading at [18]-[21] of the Second Cross-Claim. However, the second argument is not open on Nathan’s pleading – there is no pleading of any ratification arising from some ongoing conduct of Nathan as submitted in closing submissions. Nothing Kevin did in the conduct of the hearing amounts to an agreement by him that Nathan’s case could be advanced beyond his pleaded claim;

3. Alternatively, Nathan pressed his trust claims.

Kevin’s Claim

89. By his First Cross-Claim, Kevin alleges he entered into an agreement on or about 1 April 2019 with AMB to open an “Investment Plus Account” and AMB agreed to hold $675,000 in the account on certain terms. He alleges that after that time the term deposit was renewed, including with the provision of further deposits by him. He says ultimately the sum held (in the Term Deposit) was paid into Court. In short, Kevin claims he is the contracting party with AMB in relation to the term deposits, including the Term Deposit. As a result, Kevin says he was the legal and beneficial owner of the Fund.

90. Kevin did not plead any alternative claim that, if Nathan was the legal owner of the chose in action representing the Term Deposit (and the Access Account), Kevin remained the beneficial owner by reason of the deposit of money into those accounts by him. Such a claim was expressly disavowed on the first day of the hearing. As a result, Kevin’s claim is singular – that he is the legal owner of the chose in action because he is the contracting party and his beneficial interest follows that legal interest. Accordingly, Kevin’s claim fails unless I find he is the legal owner.

91. Kevin argues that despite the Term Deposit (and all other relevant accounts) being in Nathan’s name, the accounts were mere “nominee” accounts. His use of that term in submissions is not intended to suggest that Nathan held the accounts on trust for Kevin. Rather, his use of that term was to argue that the name of the account did not represent the true contracting party with the bank – that is, the name did not represent the customer in the banker-customer relationship.

Consideration

Banker-Customer Relationship

92. The dispute between the Parties concerns the proper administration of the funds paid into Court by AMB. To determine the proper administration of the Fund, it is necessary to determine the Parties’ interests in the Term Deposit prior to the funds being paid into Court. The relevant property that was represented by the Term Deposit was the contractual right that existed against AMB to be repaid the balance in the Term Deposit. A bank account is an inchoate chose in action consisting “in the contractual right against the bank, i.e., in a debt, but a debt fluctuating in amount as moneys might be deposited and withdrawn.” ^[4]

    4. Russell v Scott (1936) 55 CLR 440 at 450-451 (Dixon and Evatt JJ); [1936] HCA 34. See also, Lordianto v Commissioner of the Australian Federal Police (2018) 100 NSWLR 630; [2018] NSWCA 199 at [50]-[51].

93. The Plaintiff appears to submit that the correct characterisation of an equitable interest in a chose in action represented by a bank account, is that the equitable interest is treated by equity as being secured by a charge over the fund or, more accurately, the chose in action, against the bank to the extent of the trust money. ^[5] In this case, I think the position is different, at least with respect to the Term Deposit. The Term Deposit was a discrete term deposit. That is, it was not a fluctuating debt in relation to which money might be deposited and withdrawn but rather a contract for the deposit of a certain amount and the repayment of that amount together with a definite interest amount. In those circumstances, it seems to me that a trust can exist over the chose in action represented by the contractual right arising under the term deposit. It is not necessary to determine that question because, in either case, if a party does have a sufficient beneficial interest to create an equitable charge or recognition of a trust, he will be entitled to be paid the fund. As noted earlier, Kevin does not claim any equitable interest independent of his claimed legal interest.

    5. Re French Caledonia Travel (2013) 59 NSWLR 361; [2003] NSWSC 1008 at [151].

94. A central question in these proceedings is the identity of the contracting party with AMB in relation to the Term Deposit. Allied to that question is whether, if the contracting party was Kevin, he held the chose in action on trust for Nathan. There is no dispute that it was Kevin who gave AMB the instructions relating to the opening of the Term Deposit and the initial deposit of $675,000 drawn from the Access Account.

95. In Lordianto v Commissioner of the Australian Federal Police (“Lordianto”),^[6] the Court of Appeal observed at [48] that “[t]he law is settled that the contract between a customer and a bank is established at the time that a bank account is opened, and does not comprise a series of loans from the customer to the bank each time a deposit is made.” With respect to term deposits, however, each term deposit entered by a customer with a bank is, ordinarily, a separate contract having specific terms governing matters such as the relevant interest rate, the term and the consequences on maturity. ^[7] Further, each term deposit contract is discharged when the principal and interest is either paid to the depositor or replaced with a new term deposit contract.

    6. (2018) 100 NSWLR 630; [2018] NSWCA 199.

    7. Thomson v Federal Commissioner of Taxation (1949) 80 CLR 344 at 348; [1949] HCA 63.

Identity of contracting Parties

96. It is well-settled that Australian law applies an objective approach to the construction of contracts. The law does not seek to ascertain the parties’ subjective understanding of a contractual obligation, but what the contractual words convey to a reasonable person in the position of the parties in the circumstances in which the contract is entered into. Evidence of the parties’ subjective intention is usually inadmissible on the question of construction.

97. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd,^[8] the High Court stated the applicable principle as follows (citations omitted):

[40] This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.

8. (2004) 219 CLR 165; [2004] HCA 52.

98. Further, the High Court summarised the core principles of the construction of commercial contracts as follows in Electricity Generation Corporation v Woodside Energy Ltd (“Woodside”): ^[9]  

[35] The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean ... [that] require[s] consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract [which] is facilitated by an understanding ‘of the genesis of the transaction, the background, the context and the market in which the parties are operating’…unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption that the parties intended to produce a commercial result. A commercial contract is to be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’.

9. (2014) 251 CLR 640; [2014] HCA 7.

99. Similarly, the parties to a contract are identified according to the objective theory of contract. As the Court of Appeal said in Mills v Walsh (“Mills”),^[10] this “involves ascertaining the intention of the parties from their communications and the circumstances in their mutual knowledge, including their evident commercial aims and expectations; their subjective beliefs and intentions are irrelevant, save insofar as they are manifest and shared”. ^[11]

    10. [2022] NSWCA 255.

    11. Mills at [73].

151. Secondly, the fact that subsequently to opening the Access Account, he did not include the interest earned on any account in Nathan’s name on his own tax returns. I infer this was the case because in his evidence, he said that, with respect to the payment of tax, he never informed the Australian Taxation Office that the accounts in Nathan’s name belonged to him. He said that was so because he was managing the account and that “it didn’t belong to me”. He caused a tax file number to be issued for Nathan and gave that number to ADCU and AMB. Kevin’s conduct in this regard is entirely consistent with Kevin not being the contracting party with respect to the Access Account and the term deposits in Nathan’s name.

The Term Deposit

155. Both Kevin and Nathan claim legal ownership of the chose in action represented by the Term Deposit. I now address that issue.

156. I have found that Nathan was, at all times, the legal owner of the chose in action represented by the Access Account. I have found that Nathan signed the Authority Document.

157. Regardless of the express limits of the Authority Document itself, it is beyond question that prior to the opening of the Term Deposit, ADCU and AMB permitted Kevin to draw on the Access Account and open term deposits in Nathan’s name with the drawn funds. I infer it did so pursuant to the Authority Document because, as noted earlier, in 2022, it informed Kevin that he had been removed as an authority on the Term Deposit but not the Access Account – there is no other document provided to ADCU/AMB by which he was given any authority.

158. It is important to recall that the Authority Document was a document signed by Nathan and addressed to ADCU. That is, it was a document informing ADCU that Nathan had authorised Kevin to take the steps set out in the document and for ADCU to act upon that notification.

159. However, as between Nathan and Kevin, the scope of the agency is not limited by reference to the Authority Document alone. I have accepted Nathan’s evidence that he agreed with Kevin’s proposal that he would be better off having his money deposited at the ADCU because it paid a higher interest rate and that it would be easier for Kevin to look after it for Nathan (see paragraphs [135]-[137] above).

160. The conversation between Nathan and Kevin occurred in a context where:

1. They were father and son; and

2. At the time when Kevin had already opened an account for Nathan at CBA and was managing that account.

161. On the terms of the conversation I have accepted, Nathan was plainly agreeing to have Kevin “look after” Nathan’s money once an account was opened at ADCU.

162. In my view, the following matters support a conclusion that Kevin was Nathan’s agent, not only in relation to the opening of the Access Account (as I have found above), but more broadly with respect to accounts opened for him by Kevin with ADCU (and later AMB), including the opening of the Term Deposit:

1. The terms of the conversation;

2. The context of the conversation as identified in paragraph [135] above;

3. The subsequent Authority Document which, despite its terms, Nathan understood it to give Kevin “power over his account”.

163. Although it is true that the Term Deposit was opened approximately 30 years after the 1989 Application, the conversation and the Authority Document, there is no evidence of any change of position as between Kevin and Nathan prior to the opening of the Term Deposit.

164. The agency referred to above is sufficient to underpin a finding that Nathan was the legal owner of the chose in action represented by the Term Deposit. I repeat my findings in relation to the Minors (Property and Contracts) Act set out in paragraph [140] above.

165. I accept that the following objective facts may support the proposition that Kevin was the contracting party in his own right in relation to the Term Deposit:

1. He was the person who instructed the bank to open that account;

2. The account statement in relation to the Term Deposit was addressed to Nathan but at Kevin’s address;

3. Nathan’s membership address was Kevin’s address;

4. Kevin had historically, alone, dealt with ADCU and AMB and had possession originally of the relevant passbooks and subsequently internet banking access.

166. However, in my view, notwithstanding those matters, the following objective matters and surrounding circumstances point to Nathan being the legal owner of the chose in action relating to the Term Deposit:

1. Prior to the Term Deposit being opened, Nathan was the legal owner of the Access Account;

2. At all times prior to the opening of the Term Deposit, Nathan was the named owner of the Access Account;

3. ADCU required the Authority Document, and it was signed by Nathan;

4. ADCU and AMB, at all times prior to the opening of the Term Deposit, permitted Kevin to draw funds from the Access Account and utilise those funds in the opening of term deposits – however, those term deposits were in Nathan’s name;

5. The Access Account and all prior term deposits in Nathan’s name were associated, on ADCU and AMB statements, with Nathan’s membership, not Kevin’s membership.

6. The Term Deposit itself was in Nathan’s name.

167. Although I do not regard Winau and Uttamchandani as identifying a legal or evidentiary presumption that the named person on an account is the owner of the account, I do accept that the naming of an account is prima facie evidence that the “named customer is a party to the banker-customer contract”. ^[36]

     36. Winau at [114].

168. In my view, the matters referred to in paragraph [166] above, separately and in addition to, the matters referred to in paragraph [162] above, establish that Nathan was the legal owner of the chose in action represented by the Term Deposit:

169. The conduct of Kevin referred to in paragraph [153]-[154] above supports this finding.

170. In the absence of any equitable claim being brought by Kevin that is divorced from the legal title, I find that Nathan was both the legal and beneficial owner of the chose in action represented by the Term Deposit.

Trust Claim

171. Finally, Nathan also puts his claim, in the alternative, on the basis that he is the beneficial owner of the chose in action represented by the Term Deposit on the basis of an express trust arising from the 1989 Application. Given my conclusions set out above, Nathan’s claim in this regard does not arise. However, if contrary to my findings, Kevin was in fact the legal owner of the chose in action represented by the Term Deposit, Nathan’s express trust claim would arise. I now consider that claim on that assumption.

172. I have also earlier determined that although 1989 Application contained the words “Kevin Pike in trust for Nathan Pike”, the objective matters to which I have referred in paragraphs [112-114] above, favoured a finding that Nathan was the legal owner of the relevant chose in action, rather than beneficial owner pursuant to a declaration of trust. My analysis below assumes that view was not correct.

173. Recently in Irwin v Pamplin (No 4),^[37] at [302], Henry J summarised the principles for the creation of a trust as follows (citations omitted):

     37. [2024] NSWSC 73.

1. in order to constitute a trust, there are three critical requirements, namely,
certainty of intention, certainty of subject matter, and certainty of object or beneficiary;

2. an intention to create a trust may be express and in writing, but
may also be inferred from the terms of conversations, conduct or the surrounding circumstances;

3. in order to infer intention, the Court looks to the nature of the
transaction and the whole of the circumstances attending the relationship between the parties and known to them; and

4. a court may more readily find an informal oral declaration of trust
has passed an equitable interest to a beneficiary when it is “dealing with simple people, unaware of the subtleties of equity”.

174. In Ye v Li, the majority noted that (citations omitted):

[35] The intention to create a trust is ascertained objectively; it is not necessary that the settlor subjectively appreciates that the arrangements will have the equitable effect of creating a trust so long as they hold the requisite intention…These matters are to be established on the balance of probabilities in the usual manner. A previous reluctance to draw an inference that a trust was intended no longer applies …

175. As I have noted earlier:

1. Kevin did not sign the 1989 Application for his own benefit. That is, he was seeking a membership in the interests of Nathan;

2. The 1989 Application expressly recorded, against the section relating to “Christian name”, “Kevin in trust for Nathan”. Kevin was not sure he wrote those words, but he signed the application with those words and must be taken to have adopted them. At no stage did he suggest he was unaware of those words when he signed the document;

3. The fundamental purpose of the membership application was to obtain access to the facilities offered by ACDU, and in particular, operational accounts and term deposits;

4. ADCU gave the membership pursuant to this application a separate number to Kevin’s own membership. This is an objective matter indicating that the membership was different to Kevin’s personal membership;

5. Accounts were then opened and tied to that membership number, initially the Access Account and subsequently term deposits, including the Term Deposit.

176. If contrary to my findings, Kevin was the legal owner of the chose in action represented by the Term Deposit and the Access Account, I must consider whether the elements of a trust set out in paragraph [173] above are made out and do so now:

1. The application signed by Kevin expressed the application as one being by Kevin in trust for Nathan. Although that statement is not determinative, it is prima facie evidence of an intention by Kevin to hold property on trust for Nathan, and I have found that Kevin did not sign the application for his own benefit but rather on behalf of Nathan;

2. The subject matter of the putative trust, assessed objectively, was the chose(s) in action that would arise under the membership the subject of the application, it, or they, being the whole purpose of the membership;

3. The object of the putative trust was plainly Nathan.

177. In my opinion, on the assumption that my earlier analysis that Nathan was the legal owner of the choses in action represented by the Access Account and Term Deposit is not correct, then in my opinion, the elements of an express trust are made out.

178. In my view, there was not a separate trust in relation to each account opened in Nathan’s name. As noted above, each term deposit was a separate contract. Nevertheless, viewed objectively on the above assumptions, a trust was created over all accounts opened under the membership created by the 1989 Application. The trust was perfected by the opening of the Access Account in 1989 – that is, property by way of the chose in action represented by that account formed property of the trust.

179. Thereafter, each chose in action under the membership created by the 1989 Application was trust property. A similar conclusion was reached by the High Court in Thomson v Federal Commissioner of Taxation (“Thomson”). ^[38] Webb J concluded, on the facts of that case, that a single trust was created which comprised a “succession of choses in action” rather than “a succession of trusts”. ^[39] In the present case, I consider this to be the position because:

     38. (1949) 80 CLR 344.

     39. Thomson at 349.

1. The Access Account and each subsequent account was opened under the same membership number;

2. The Access account and all term deposits were in Nathan’s name and ordinarily, money flowed between the term deposits and the Access Account;

3. The purpose of the membership was to obtain access to an operating account and, if desired, term deposit accounts;

4. There is no evidence to support any change in the intention of Kevin after completion of the 1989 Application in relation to accounts opened under that membership and prior to the opening of the Term Deposit;

5. The express declaration of trust was recorded in the 1989 Application (that is, in the membership application);

6. Kevin had a military bank account which was opened under a separate membership number that existed before Nathan’s membership number.

180. Accordingly, if contrary to my findings, Kevin is the legal owner of the choses in action represented by the Access Account and the Term Deposit, then I would uphold Nathan’s alternative trust claim. On that basis, Nathan would be entitled to be paid the money held by the Court.

Kevin’s Case

181. As noted earlier, Kevin submitted he was the legal owner of the chose in action represented by the Term Deposit (and the Access Account). I have found otherwise. For completeness, I will specifically deal with the matters raised by Kevin. Kevin relied on the following matters:

1. He was, until 2022, the only person who dealt with, and gave instructions to, ADCU and AMB with respect to:

1. The application for membership;

2. The opening of the Access Account; and

3. The opening of all term deposits (including what would happen when they matured);

2. He deposited all the monetary contributions to the Access Account (which in turn primarily funded the term deposits) together with money separately contributed to term deposits;

3. The address on the membership application and the account statements was his address (except when Nathan changed that in 2022);

4. The indicia of ownership, namely the passbooks and then subsequently internet banking was (until 2022) in the hands of Kevin and not Nathan;

5. The Bank did not have Nathan’s proof of identification until well after the opening of the Term Deposit.

182. In short, Kevin submitted, as a matter of contract, that he was the contracting party with ADCU (and then AMB) such that he was the customer in the banker-customer relationship. As a result, he claims he was the legal holder of the relevant chose(s) in action and that the beneficial ownership follows his legal ownership.

183. Further, as a matter of subjective intention, Kevin’s evidence was that he intended to have the money in the accounts in his sons’ names form part of his estate on death and for the money to be split evenly amongst his three sons. His will, signed in March 2013, is consistent with that subjective intention because it contained the following bequeath: “I give the rest of my estate both real and personal to those of my sons … who survive me … including any monies in accounts and equities held or administered by me in mine, or my sons’ names”. Because the money in those accounts, came from him, it seems, at a subjective level, Kevin considered, at least at the time he prepared his will, that the money in the accounts (as opposed necessarily to the accounts themselves) was “his”.

184. The difficulty with Kevin’s submissions is that, putting aside his subjective intention which cannot control the legal outcome, each of the matters relied upon and referred to at paragraph [181(a),181(c)181(d)] are equally consistent, as an objective matter, with Kevin having engaged with ADCU and AMB as Nathan’s parent, his agent (whether authorised at the time or not authorised but later ratified) or his trustee. The fact that it was Kevin that dealt with ADCU and AMB, and that he had the passbooks/internet account, and his address was the address for the accounts does not persuasively indicate, of themselves, that he was contracting on his own account. The fact that Kevin contributed all, or at least almost all, the money into the Access Account is relevant as an objective matter, however, it must be borne in mind that Kevin brings no equitable claim arising from the fact that he so contributed. The relevance of the significant contributions by Kevin, as an objective matter, is less significant in relation to the Access Account because the identity of the contracting party is to be determined as at the date of contract and at that time, the account was opened with a modest initial contribution. The fact that AMB only latterly sought to obtain identification documents concerning Nathan to comply with certain legislative requirements does not seem to me to be material in identifying the parties to the contract at the time the contract was formed.

185. The matters relied upon by Kevin are relevant to an assessment of the objective circumstances going to the identity of the customer (and contracting party) in relation to the relevant accounts. I have taken all those matters into account in forming the views and conclusions expressed on the legal and beneficial ownership of the choses in action represented by the Access Account and the Term Deposit.

Nathan’s claim for payment by Kevin of AMB’s costs

186. When granting relief by way of interpleader, the Court:

1. Ordered that AMB’s costs be paid out of the funds to be paid into Court before those funds were paid into Court;

2. Found that it was appropriate that Nathan pay Kevin’s costs of the interpleader application. Kevin was put to unnecessary expense in addressing the application – to which he consented – due to Nathan’s opposition. As Nathan’s opposition was unsuccessful, he was ordered to pay Kevin’s costs;

3. Reserved to be dealt with at final hearing whether either party should be ordered to reimburse the Fund.

187. In short, Nathan submitted that AMB’s costs, being a burden on the Fund, were caused by Kevin’s unsuccessful substantive claim to the Fund. The juridical basis for a claim for reimbursement of the Fund was not articulated in Nathan’s Cross-Claim, however, the decision in Brown v Forrest (“Brown”)^[40] supports the existence of power to order such reimbursement (indeed it is described as a usual order). ^[41]

     40. [2017] NSWSC 1810.

     41. Brown at [34].

188. The present case is distinguishable from Brown. The action taken by the stakeholder in Brown does not appear to have been opposed by either of the competing claimants. In this case, it was Nathan who opposed AMB’s interpleader application. As a result, AMB was required to fully prepare a hearing on its interpleader application including the preparation of detailed affidavit evidence and submissions. Because of Nathan’s opposition, he and Kevin both filed evidence and made submissions to the Court. Nathan, in part, alleged that AMB was not neutral in its application and “colluded” with Kevin. Nathan did not make good those allegations.

189. Ultimately, the Court concluded that Kevin was put to unnecessary expense by reason of Nathan’s unsuccessful opposition to AMB’s interpleader application. I infer that AMB was also put to, at least, some unnecessary expense because of that opposition. Kevin had consented to the interpleader relief that was sought and had Nathan done so, it may well have been that AMB’s costs would have been minimal.

190. In those circumstances, I do not consider it appropriate to accede to Nathan’s submission that Kevin reimburse the Fund and I will not make such an order.

Costs

191. During the hearing, Nathan indicated that he wished to be heard on the appropriate costs orders to be made at judgment.

Conclusion

192. For the foregoing reasons, Nathan is entitled to be paid the money held by the Court pursuant to the interpleader relief granted to the AMB.

193. The Court makes the following orders:

1. The sum of $728,324.49 paid into the Court pursuant to orders made by Andronos SC DCJ on 20 August 2024 and all interest accrued thereon be paid to the Second Cross-Claimant (Nathan);

2. The First Cross-Claim is dismissed.

3. The Parties are to inform my Associate within 7 days if they require an oral hearing on the question of costs. If the Parties indicate that they do not require an oral hearing, and are content for the Court to deal with the question of costs on the papers and in Chambers, then:

1. Nathan is to serve his submissions on costs, together with any affidavits in support, within 7 days of notice being given by both Parties to my Associate that an oral hearing is not required. Without leave, the submissions are to be no more than 5 pages;

1. Kevin is to serve his submissions on costs, together with any affidavits in support within 7 days of receipt of Nathan’s submissions. Without leave, such submissions are to be no more than 5 pages.

**********

Endnotes

Amendments

07 November 2025 - Cover sheet - corrected hearing dates.

10 November 2025 - 10 November 2025 - Amendment to cover sheet - 'Representation' field.

Decision last updated: 10 November 2025