Dogra v Dogra (No 4)

[2024] NSWCA 259

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dogra v Dogra (No 4) [2024] NSWCA 259

Hearing dates:

16 September 2024

Date of orders:

31 October 2024

Decision date:

31 October 2024

Before:

Bell CJ at [1];
Ward P at [2];
Payne JA at [3]

Decision:

(1)   Appeal dismissed;

(2)   Appellant (Aruna) and second respondent (Kapil) to pay the first respondent’s (Mamta’s) costs of the appeal;

(3)   Cross-appeal dismissed;

(4)   Cross-appellant (Kapil) to pay the second cross-respondent’s (Mamta’s) costs of the cross-appeal;

(5)   There be no order for costs of the appeal or the cross-appeal as between the appellant and first cross-respondent (Aruna) and the cross-appellant and second respondent (Kapil).

Catchwords:

REAL PROPERTY — Claim to beneficial interest in land registered under the Real Property Act 1900 NSW — where primary judge made extensive credit findings — where documentary evidence inconsistent with alleged entitlement — whether primary judge entitled to draw Jones v Dunkel inference — where parties financially interdependent

EVIDENCE — Credibility evidence — Cross-examination — collateral issue — where primary judge refused cross-examination — whether collateral issue substantially affected credit

APPEALS — From finding of fact — Admission of further evidence — Evidence not available at hearing — informal applications — application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56

Evidence Act 1995 (NSW) ss 102, 103

Real Property Act 1900 (NSW)

Cases Cited:

Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151

Browne v Dunn (1894) 6 R 67

Crackin’ Snack Pty Ltd v Gameking Australia Pty Ltd [2024] NSWCA 182

Dogra v Dogra [2023] NSWSC 1642

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Ghosh v Medical Council of NSW [2020] NSWCA 122

Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187

Jones v Dunkel (1959) CLR 289

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Category:

Principal judgment

Parties:

Aruna Dogra (appellant/first cross-respondent)
Mamta Dogra (first respondent/second cross-respondent)
Kapil Dogra (second respondent/cross-appellant)

Representation:

Counsel:
C D Freeman (appellant/first cross-respondent)
D O’Dea (first respondent/second cross-respondent)
S Golledge SC (second respondent/cross-appellant)

Solicitors:
Goodwin and Co. Lawyers (appellant/ first cross-respondent) (notice of ceasing to act filed 25 October 2024)
O’Dea Lawyers (first respondent/second cross-respondent)
J.P. Capsanis and Co. Lawyers (second respondent/cross-appellant)

File Number(s):

2024/8811

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 1642

Date of Decision:

21 December 2023

Before:

Lindsay J

File Number(s):

2021/151823

HEADNOTE

[This headnote is not to be read as part of the judgment]

The first respondent, Ms Mamta Dogra and her former husband, the second respondent/cross-appellant, Mr Kapil Dogra are the registered proprietors of a house in Hurstville (“the Hurstville Property”). The appellant, Ms Aruna Dogra, is Mr Kapil Dogra’s mother.

On 26 May 2021, Aruna commenced proceedings in the Equity Division of the Supreme Court of New South Wales asserting one-third beneficial interest in the Hurstville Property, said to arise from conversations she had with Kapil and Mamta before the acquisition an earlier matrimonial home in Kogarah (“the Kogarah Property”) and confirmed at the time of acquisition of the Hurstville Property. Aruna also claimed that she had made significant contributions to the purchase of the Kogarah Property, the payment of the mortgage on that property and the payment of expenses relevant to the Hurstville Property. The Kogarah Property was sold to finance the purchase of the Hurstville Property. Kapil supported Aruna’s claim in every respect.

On 21 December 2023, Lindsay J rejected Aruna’s claim and declared that Aruna had no right, title or interest in the Hurstville Property. Aruna appealed and Kapil filed a cross-appeal. On appeal and cross-appeal, the issues were:

1. whether a Jones v Dunkel inference could be drawn by reason of Aruna’s failure to call Mr Dey, the family solicitor;

2. whether Aruna and Kapil had a common interest in the litigation and the Dogra family had a collective opposition to Mamta;

3. whether Mamta should have been cross-examined about proceedings in the Local Court;

4. whether Aruna proved that any money which was paid in relation to the Kogarah Property actually belonged to Aruna;

5. whether there was an agreement between the parties that Aruna would have a beneficial interest in the two properties; and

6. whether Aruna is entitled to equitable relief.

The Court (Payne JA, Bell CJ and Ward P agreeing at [1] and [2] respectively) held, dismissing the appeal and the cross-appeal:

On issue (i):

1. A Jones v Dunkel inference could properly be drawn in this case by reason of Aruna’s failure to call Mr Dey, the solicitor who acted for Kapil and Mamta on the purchases of the Kogarah Property and the Hurstville Property: [47]-[54].

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, referred to.

On issue (ii):

1. Aruna and Kapil had a “common interest” in diminishing the entitlement of Mamta in the Federal Circuit and Family Court of Australia proceedings to a distribution from the sale of the Hurstville Property: [56]-[58].

2. There were no contemporaneous records of the critical conversations relied upon by Aruna and Kapil: [59]-[62].

3. The witnesses in Aruna’s case gave closely aligned reconstructions of particular conversations. There was no lack of reasoning about the unreliability of their evidence by reference to the contemporaneous documents and the contradictions apparent from their oral evidence: [63]-[66]. The primary judge did not suggest that the evidence presented in Aruna’s case was fraudulently fabricated: [75]-[78].

4. Based on how each of the witnesses presented themselves to the Court, Aruna, Kapil, Punam and Anjali had a collective animus towards Mamta: [67]-[72]. One part of Aruna and Kapil’s animus against Mamta has been fuelled by Mamta’s instigation of failed criminal proceedings against Kapil, which emerged plainly in the transcript of the proceedings before the primary judge: [89]-[92].

5. Mr Khan presented himself a loyal friend of the Dogra family rather than as a truly independent witness: [73]-[74].

On issue (iii):

1. It was open to the primary judge to refuse to allow cross-examination of Mamta about her credit in respect of certain Local Court proceedings, and his Honour was correct to do so. The mere fact that an alleged victim of a violent assault has charges withdrawn by the police was of little if any likely relevance. The evidence was only relevant to Mamta’s credibility, making it inadmissible under s 102 of the Evidence Act 1995 (NSW), and it did not meet the s 103 exception which requires that it “could substantially affect the assessment of the credibility of the witness”: [79]-[88].

On issue (iv):

1. Aruna failed to prove that any money which was paid in relation to the acquisition of the Kogarah Property actually belonged to Aruna: [93]-[104]. The evidence of Aruna, Kapil and Punam (Aruna’s daughter) was inconsistent with virtually all the objective evidence, including Aruna’s tax records, and their evidence was shown in significant respects to be unreliable: [97]-[103].

2. To the extent that Aruna may have provided funds to Kapil and Mamta from her own resources, that was not in respect of the pursuit or expectation of a proprietary interest in the Kogarah Property or Hurstville Property but a function of familial support for Kapil: [105]-[106].

3. The primary judge was not bound to accept the evidence Aruna and Kapil gave of conversations because they were not the subject of cross-examination by Mamta: [107]-[112].

Ghosh v Medical Council of NSW [2020] NSWCA 122; Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151, applied.

On issue (v):

1. There was no agreement or understanding between Aruna, Kapil and Mamta for Aruna to acquire a beneficial interest or entitlement in the Kogarah Property and the Hurstville Property. The case as advanced by Aruna is inconsistent with contemporaneous documents: [115]-[128].

2. Aruna bore the onus of proving that beneficial entitlements to the properties differed (in the case of the Kogarah Property) and differs (in the case of the Hurstville Property) from the legal entitlements recorded on the Land Titles Register maintained under the Real Property Act 1900 (NSW). Aruna bore the onus of establishing any personal equity and she failed to establish the essential elements of any cause of action: [117].

On issue (vi):

1. Aruna had acquiesced in Mamta and Kapil’s acquisition of title in the Hurstville Property unencumbered by any proprietary interest she allegedly had: [130]-[131].

2. Mamta’s conduct was not unconscionable: [132].

3. Aruna did not establish an entitlement to proprietary relief either in respect of the Kogarah Property and/or the Hurstville Property or in relation to Kapil’s interest in the Kogarah Property and/or the Hurstville Property: [133]-[134].

JUDGMENT

1. BELL CJ: I agree with the reasons of Payne JA and the orders his Honour proposes.

2. WARD P: I agree with Payne JA.

3. PAYNE JA: The first respondent, Ms Mamta Dogra and her former husband, the second respondent/cross-appellant, Mr Kapil Dogra are the registered proprietors of a house in Hurstville (“the Hurstville Property”). The appellant, Ms Aruna Dogra, is Mr Kapil Dogra’s mother. Without intending any disrespect, I will refer in these reasons to the parties as “Aruna”, “Kapil” and “Mamta” and refer to other members of the Dogra family by their first names.

4. In proceedings in the Equity Division of the Court, Aruna asserted that she had a one-third beneficial interest in the Hurstville Property, said to arise from conversations she had with Kapil and Mamta before the acquisition of an earlier matrimonial home in Kogarah (“the Kogarah Property”) and confirmed at the time of acquisition of the Hurstville Property. Aruna also claimed that she had made significant contributions to the purchase of the Kogarah Property, the payment of the mortgage on that property and the payment of expenses relevant to the Hurstville Property. The Kogarah Property was sold to finance the purchase of the Hurstville Property. Kapil supported Aruna’s claim in every respect.

5. On 21 December 2023, Lindsay J, the primary judge, rejected Aruna’s claim and made the following orders in Dogra v Dogra [2023] NSWSC 1642:

1. DECLARE that [Aruna] has no right, title or interest in the land contained in Certificate of Title folio identifier 16/18644 and known as [redacted], Hurstville.

2. ORDER that caveat number AP793162 be withdrawn forthwith.

3. ORDER that [Aruna] and [Kapil] pay [Mamta’s] costs of these proceedings.

4. NOTE that no orders are made as to the costs of [Aruna] and [Kapil] to the intent that they each pay or bear their own costs.

Relevant facts

6. Kapil and Mamta were married in 2004. The marriage broke down in or about September 2015, although Kapil and Mamta continued to reside together. Kapil and Mamta were formally separated in May 2021 and divorced in July 2022. Kapil, Mamta and Aruna, together with two children of the marriage and for a time, Kapil’s niece, Ms Anjali Dhawn, lived together in the Hurstville Property, and prior to that in the Kogarah Property. Mamta no longer resides at the Hurstville Property, having been excluded following the issue of an Apprehended Domestic Violence Order made against her in 2021.

7. On 26 May 2021, Aruna commenced the present proceedings in the Equity Division of the Court. On 8 July 2021, Mamta commenced proceedings in the Federal Circuit and Family Court of Australia in relation to the property of the marriage. An application by Aruna to transfer the present proceedings to the Federal Circuit and Family Court of Australia was refused. The Federal Circuit and Family Court of Australia proceedings are stayed pending the outcome of the present proceedings.

The Kogarah Property

8. On 27 June 2006, the Kogarah Property was purchased at auction for $447,500 and the purchase settled on 11 August 2006. Kapil paid the deposit of $44,750.

9. There was an issue at trial and on appeal about whether the contract for sale and purchase was signed at the auction, and if so, by whom. A copy of the contract as exchanged was not in evidence. On all of the evidence, Aruna did not sign the contract. As I will explain, in her evidence in chief at trial, Aruna did not assert that she had signed the contract.

10. The Memorandum of Transfer was signed by Kapil and Mamta alone as transferees. Mamta and Kapil alone were the registered proprietors of the Kogarah Property.

11. The financial affairs of Aruna and Kapil were intermingled. Kapil actively managed the family’s financial affairs. The primary judge found that Aruna was financially dependent upon Kapil. The principal contribution alleged to have been made by Aruna to the purchase of the Kogarah Property was $83,000 paid by instalments by Aruna to Kapil. In addition, between 22 December 2006 and 19 April 2010 (by 16 unequal instalments) funds totalling $128,500 were transferred from Aruna’s account to Kapil’s account and Kapil and Mamta’s joint bank account. Finally, between 16 September 2016 and 4 February 2021 (by 30 unequal instalments) funds totalling $107,700 were transferred from Aruna’s account to Kapil’s account and Kapil and Mamta’s joint bank account.

12. By reason of the fact that Kapil’s funds were intermingled and the Dogra family “lived in the cash economy”, the primary judge was not satisfied that Aruna had proven that any part of any sum transferred to Kapil or Kapil and Mamta’s account belonged to Aruna. Neither was the primary judge satisfied that any part of any sum so transferred was for a purpose associated with an acquisition by Aruna of an interest in the Kogarah Property or the Hurstville Property. The characterisation of these transactions was dependent on whether the evidence of Aruna (and to the limited extent he gave evidence relevant to this issue, Kapil) was accepted. The primary judge did not accept that evidence.

13. Although Aruna, Kapil and Aruna’s daughter, Ms Punam Dhawn gave evidence about potential sources of Aruna’s wealth in India, in a tax return lodged with the Australian Tax Office for the year ending on 30 June 2010, Aruna denied that during the 2010 tax year she owned or had an interest in assets located outside Australia with a total value of over A$50,000.

14. The primary judge did not accept Aruna and Kapil’s evidence of conversations they had with Mamta and found that even if Aruna had provided some funds to Kapil and Mamta from her own resources, it was not in pursuit or expectation of a proprietary interest in the Kogarah Property or the Hurstville Property but a function of familial support for Kapil, with whom she lived.

15. To finance the purchase of the Kogarah Property, Mamta and Kapil granted the Adelaide Bank a registered mortgage to secure repayment of a loan. There was no guarantor of the loan. The signatures of Mamta and Kapil as mortgagors were witnessed by the family solicitor, Mr Mukul Dey. The mortgage was discharged in 2017 when Mamta and Kapil sold the Kogarah Property.

16. Kapil and Mamta were granted an exemption from stamp duty payable on the contract to purchase the Kogarah Property by the NSW Government and received a grant of $7,000 as “first home-owners”. All of the conveyancing documents, together with the financial records and records of claims submitted by Kapil and Mamta to the NSW government are consistent with the conclusion that the Kogarah Property was co-owned by Kapil and Mamta alone and that Aruna held no interest in the property.

17. On 10 September 2015, after the marriage had deteriorated significantly, Kapil arranged for a solicitor to send a letter to Mamta seeking her consent to an attached “agreement” to sell the Kogarah Property and divide the proceeds of sale between Kapil and Mamta. The “agreement” proposed that Aruna would be given $100,000 by each of Kapil and Aruna from the moneys they received from the proposed sale. Neither Kapil nor Mamta ever signed this proposed agreement, nor did either of them pay $100,000 to Aruna from the proceeds of sale of the Kogarah Property. The proposed agreement was inconsistent with any understanding on the part of Kapil that Aruna had a beneficial entitlement to a share of the proceeds of the sale of the Kogarah Property.

18. In October 2015, Kapil sent Mamta an email concerning the sale of the Kogarah Property as follows:

Dear Mamta,

As you are aware that because of my difficulties in communicating with you and your insistence that you will NOT put in writing your requirements / demands with regards to way forward for selling [the Kogarah Property]. I am putting forth to you the complete position to best of my understanding.

1.   Signing the agreement with CBRE: You have stated that you agree to sign provided:

a.   The sale proceeds are deposited in the trust account of the lawyers nominated by you acting on our behalf in their Trust account.

b.   You want that the nett sale proceeds i.e total sale price less expenses incurred for completing the sale will be utilised to purchase another residential home in our joint [names].

2.   As you would appreciate that the nett amount that will become available may allow us to buy a property together with some surplus remaining. I ask that the surplus if any, be distributed equally between two of us to be utilised at ones sole discretion.

3.   Similarly, I ask that if there is a short fall between the purchase price of the new residential property and the amount available from the sale proceeds of [the Kogarah property], it will again be necessary to bring in additional funds. I would prefer to deal with the situation at that time; however, I consider it to be prudent to flag it at this early stage.

4.   How would you think we would handle a situation where we are not able to find a suitable property and the money is sitting idle in a solicitors trust account which is not earning any interest income? Given this circumstance I would ask that it may be preferable to direct the solicitors to invest in income earning investment immediately after the settlement of the sale. The investment of course will be in our joint names and can be withdrawn for a common purpose.

5   As you would understand that although my preference was that you write the terms of depositing the sale proceedings and the manner of withdrawal. Considering the urgency to set the ball rolling and not be caught up if the downturn in the property market starts. I request you to read the contents carefully, obtain legal advice and make arrangements to execute the CBRE (or any other agent) documents as well as make up your mind fully that once CBRE (or any other agent) is authorised you will without any delay also execute the contract for sale in favour of the party brought by the CBRE (or any other agent).

Whilst I am unsure whether you would change your mind again or whether we will have further difficulties in trying to reconcile ourselves, for the sake of the children, I beg of you to complete the above process whole heartedly without reservations as it is good for our children, as well as us, individually.

I wish you well.

Kapil

19. This email was correctly described by the primary judge as inconsistent with an understanding on the part of Kapil that Aruna had a beneficial entitlement to share in the proceeds of sale of the Kogarah Property.

19. The Kogarah Property was sold for $2.3 million with contracts exchanged on 21 October 2016 and settlement completed on 9 October 2017. On 11 October 2017, the discharge of the mortgage of Bendigo and Adelaide Bank and the Memorandum of Transfer in favour of the purchaser were registered.

The Hurstville Property

21. The net proceeds of sale of the Kogarah Property were applied by Kapil and Mamta towards the purchase of the Hurstville Property. Contracts were exchanged on 30 August 2017 and the purchase was settled on 20 November 2017. The Hurstville Property was registered in the names of Kapil and Mamta as tenants-in-common in equal shares.

22. The contemporaneous conveyancing records relating to the purchase of the Hurstville Property all supported a conclusion that the Hurstville Property was held by Kapil and Mamta in co-ownership to the exclusion of Aruna. Aruna took no formal steps to involve herself in the conveyancing process to protect any claimed entitlement to a share of the proceeds of sale of the Kogarah Property.

23. On 20 December 2019, two years after the purchase, Aruna lodged a caveat against the title of the Hurstville Property. In that caveat, Aruna claimed a charge over the property by virtue of an oral agreement between Aruna, Kapil and Mamta relating to an alleged monetary contribution of $90,000. Mamta did not become aware of the caveat until shortly before her exclusion from the Hurstville Property on 12 May 2021. The primary judge observed that the lodgement of the caveat without Mamta’s knowledge was, more likely than not, a strategic step taken by Aruna in aid of Kapil in an unfolding matrimonial property dispute, and not founded on a belief or expectation of a proprietary interest in the Hurstville Property.

Nature of Aruna’s alleged entitlement

24. Aruna and Kapil contended that, with the knowledge and approval of Mamta, Aruna was an undisclosed co-owner of the Kogarah Property and, upon the sale of that property and the acquisition of the Hurstville Property, became an undisclosed co-owner of the Hurstville Property. Aruna’s case was that the common intention of all three parties was that Aruna be a co-owner of each property and that Aruna remains today a co-owner of the Hurstville Property. The common intention was based on the evidence given by Aruna, Kapil, Punam and a family friend Mr Shayaz Khan of conversations with Mamta and assertions that Aruna indirectly, from her own resources and largely through Kapil, made the financial contributions described at [11] to the acquisition of the Kogarah Property and to payment of mortgage instalments as well as financial and non-financial contributions to the household whilst living at the Hurstville Property.

25. The primary judge observed that Aruna bore the onus of proving that beneficial entitlements to the properties differed (in the case of the Kogarah Property) and differs (in the case of the Hurstville Property) from the legal entitlements recorded on the Land Titles Register maintained under the Real Property Act1900 (NSW) and of establishing any personal equity in those properties. The primary judge was not satisfied that the evidence given by Aruna, members of her family and Mr Khan was reliable. That evidence was inconsistent with contemporaneous documents including statements made by Kapil to public authorities. As the primary judge said, Aruna’s and Kapil’s evidence can be accepted in material respects only if their various declarations about property ownership can be explained away. The numerous inconsistent contemporaneous statements made by Kapil cast real doubt on the veracity of his evidence and, indirectly, on the reliability of evidence given by Aruna and the corroborative witnesses. It was also notable that these recollections concerned conversations with Kapil and Mamta which occurred 15 years ago, about which there were no notes. The primary judge correctly described the evidence of those conversations as “the elaborate reconstruction of long-ago conversations advanced by or on behalf of” Aruna and Kapil. His Honour accepted Mamta’s denials of those conversations. The primary judge was not satisfied there was any agreement between Aruna, on the one hand, and Kapil and Mamta on the other, that Aruna acquire a beneficial interest in the Kogarah Property or the Hurstville Property. Nor did Mamta acquiesce in alleged representations made in conversations where she was present that Aruna would acquire such an interest.

26. In relation to the purchase of both the Kogarah Property and the Hurstville Property, the primary judge found that Aruna acquiesced in Mamta’s acquisition of title to the land unencumbered by any claim that Aruna might have had. The primary judge stated that even if Aruna held a beneficial interest in the Kogarah Property or the proceeds of its sale, she took no formal step to protect that interest at the time that the property was sold. Nor did she do so at the time the Hurstville Property was purchased.

Findings relating to witnesses

27. The primary judge found that each of Aruna, Kapil, Punam and Anjali presented themselves to the Court as an integral part of a proud and cohesive family with a collective animus towards Mamta as an outsider. Mr Khan presented himself as a loyal friend of the Dogra family rather than as a truly independent witness. The primary judge found Mamta to be a witness of truth and an objective historian and generally preferred her evidence.

28. The primary judge was not satisfied that Aruna proved that she had any beneficial entitlement to the Kogarah Property or the Hurstville Property, nor that Aruna had established any personal equity. In reaching these conclusions the primary judge took into account:

1. His observations of the witnesses;

2. The obvious inconsistencies and uncertainties in the accounts of Aruna, Kapil and Punam about the source of and transfer of funds allegedly provided by Aruna to Kapil as a contribution to the Kogarah Property and to service mortgage debt;

3. The documents in relation to the purchase of the Kogarah Property, in particular:

1. The Memorandum of Transfer to Kapil and Mamta;

2. The application to the Office of State Revenue for a first home buyers’ exemption from stamp duty, which was granted to Kapil and Mamta;

3. The application to the Office of State Revenue for a first home owner grant made by Kapil and Mamta;

4. The loan approval to Kapil and Mamta and registered mortgage granted by Kapil and Mamta;

5. Settlement correspondence relating to the purchase by Kapil and Mamta with the solicitor, Mr Dey. Virtually all of the correspondence relating to the purchase of the Kogarah Property was addressed to Kapil and Mamta alone, with no reference to Aruna;

6. The 21 October 2016 put and call option for the sale of the Kogarah Property to which Kapil and Mamta were parties (recorded in a caveat over the property);

7. The contract for sale of the Kogarah Property; and

8. The Memorandum of Transfer of the Kogarah Property to the purchaser.

4. The only documentary evidence suggesting that Kapil, at one point, intended that Aruna be a purchaser of the Kogarah Property (with him and Mamta) was contained in two pieces of correspondence dated 28 June 2006. One was an email from Kapil to Mr Dey, and the other was a letter from the vendor’s agent to Kapil, Mamta and Aruna. Critically, a later email from Kapil to Mr Dey dated 12 July 2006 resolved the potential issues created by these two communications. This email confirmed that Aruna had decided not to be included in the application for purchase of the property:

Dear Mr Mukul,

With reference to our recent conversation, I would like to formally inform you that we would be buying [the Kogarah Property] on two names only. The names to appear on the contract will be my wife and me which are as follows: Kapil Dogra Mamta Dogra alias Mamta Indersain Chugh.

My mother Aruna Kumari Singh has decided not to include herself in the application. She will be living with and taken care by my sister. (emphasis added).

The primary judge found that the “application” referred to was likely the application for finance. Kapil’s sister, Punam, lived in Singapore at that time;

5. The proposed “agreement” of September 2015 between Mamta and Kapil prepared by a solicitor on Kapil’s instructions which conspicuously failed to assert that Aruna had a beneficial entitlement to share in the proceeds of the sale of the Kogarah Property or that Kapil understood such an interest to exist. The primary judge correctly found that this evidence was inconsistent with Aruna’s claimed beneficial entitlement to share in the proceeds of the Kogarah Property;

6. Email correspondence from Kapil to Mamta of October 2015 which also failed to assert an understanding that Aruna had a beneficial entitlement to share in the proceeds of the sale of the Kogarah Property or that Kapil understood such an interest to exist. The primary judge correctly found that this evidence was inconsistent with Kapil’s evidence supporting Aruna’s claimed beneficial entitlement to share in the proceeds of the Kogarah Property;

7. The documents in relation to the purchase of the Hurstville Property, in particular:

1. The Memorandum of Transfer to Kapil and Mamta;

2. The registered mortgage granted by Kapil and Mamta; and

3. The lodgement in December 2019 of a caveat by Aruna over the Hurstville Property, 4 years after the marriage between Mamta and Kapil apparently experienced difficulties sufficient for Kapil to consult a solicitor, which was concealed from Mamta for approximately 17 months. The caveat did not assert the interest now claimed in the property (only a charge attributable to an alleged monetary contribution of $90,000); and

8. The fact that Aruna, with knowledge of the sale of the Kogarah Property and purchase of the Hurstville Property, took no steps to protect any asserted entitlement to an interest in either property (until lodgement of the caveat two years after the acquisition of the Hurstville Property).

Grounds of appeal and cross-appeal

29. Aruna filed a notice of appeal containing 23 separate grounds:

1. The primary Judge erred in holding that a Jones v Dunkel inference arose because of the appellant’s failure to call Mukul Dey as witness.

2. The primary Judge erred in finding that the Appellant and the Second Respondent had a common interest to diminish the entitlement of the First Respondent in Family Court proceedings against the Second Respondent.

3. The primary Judge erred in finding that (a) there was no contemporaneous record of the several conversations relied upon by the Appellant and the Second Respondent and (b) they and their collaborators have given closely aligned reconstructions of particular conversations.

4. The primary Judge erred in finding that each of the Appellant, the Second Respondent, Punam Dhawn and Anjali Dhawn had a collective animus towards the First Respondent.

5. The primary Judge erred in finding that Shayaz Khan presented himself a loyal friend of the Dogra family rather than as a truly independent witness.

6. The primary Judge erred in finding that the First Respondent was a witness of truth and an objective historian.

7. The primary Judge failed to give adequate or sufficient reasons for his findings at paragraphs 2-6 above.

8. The primary Judge erred in rejecting or refusing to allow cross-examination of the First Respondent as to her credit in respect of Local Court proceedings.

9. The primary Judge erred in finding that one part of the animus has been fuelled by the first defendant’s instigation of failed criminal proceedings against the second defendant.

10. The primary Judge erred in finding that the Appellant was financially dependent on the Second Respondent prior to acquisition of the Kogarah Property.

11. The primary Judge erred in finding that the moneys paid from the Appellant’s bank account to the bank accounts of the Second Respondent and the Respondents respectively was not her money or was not satisfied that it was her money.

12. The primary Judge erred in finding that there was no agreement or understanding between the Appellants and the Respondents for the Appellant to acquire a beneficial interest or entitlement in either [the Kogarah Property] or [the Hurstville Property].

13. The primary Judge erred in finding that no representation was made by the Respondents to the Appellant that she would acquire a beneficial entitlement in either the Kogarah Property or the Hurstville Property.

14. The primary Judge erred in finding that the Appellant was not encouraged by the Respondents to believe that she would acquire a beneficial entitlement in either the Kogarah Property or the Hurstville Property.

15. The primary Judge erred in finding that the Appellant never held a belief or an expectation of a proprietary interest in the Kogarah Property or the Hurstville Property.

16. The primary Judge erred in finding that to the extent that the Appellant may have provided funds to the Respondents from her own resources, that was not in respect of the pursuit or expectation of a proprietary interest in the Kogarah Property or Hurstville Property but a function of familial support for the Second Respondent.

17. The primary Judge erred in not accepting the evidence of the Appellant and the Second Respondent as to the transfer of moneys from India to Australia or that such moneys were a source of the Appellant’s payments in respect of the Kogarah Property and the Hurstville Property.

18. The primary Judge erred in finding that the Appellant’s evidence on sale of India property in 2005 was inconsistent with her tax records for the year ended 30 June 2010.

19. The primary judge erred in holding that the Appellant acquiesced the Respondents’ acquisition of title unencumbered by any proprietary interest she might otherwise had.

20. The primary Judge erred in holding that there was nothing in the conduct of the First Respondent vis-a-vis the Appellant that rendered it unconscionable for her to insist upon maintenance of her legal entitlement to the Hurstville property unencumbered by any interest claimed by the Appellant.

21. The primary Judge erred in holding that the Appellant had not established an entitlement to proprietary relief either in respect of the Kogarah Property or at least in relation to the Second Respondent’s interest in the Kogarah Property.

22. The primary Judge erred in holding that the Appellant had not established an entitlement to proprietary relief either in respect of the Hurstville property or at least in relation to the Second Respondent’s interest in the Kogarah Property.

23. The primary Judge ought to have ordered at least an equitable charge or lien over the interest of the Respondents in the Hurstville Property or over the Second Respondent’s interest in the Kogarah Property.

30. Kapil filed a cross-appeal in support of Aruna’s claim. The cross-appeal raised 52 grounds of cross-appeal. The written submissions filed by Kapil made it clear that only two grounds were pressed, namely:

(i) the trial judge erred, at Judgement [101], by failing to find that the funds paid by Aruna to Kapil and Mamta, actually belonged to Aruna. See Notice of Cross Appeal paragraphs [20] & [38]; and

(ii) the trial judge erred, at Judgement [103] & [114], in failing to find that there was any agreement or understanding between Aruna, on the one hand, and Kapil and Mamta that, if she made the financial contribution to the purchase price of the Kogarah property, Aruna would thereby acquire a beneficial interest in the Kogarah and then the Hurstville properties. See Notice of Cross Appeal paragraphs [17],[18],[50] & [ 52].

31. In relation to ground (i) of the Amended Cross-Appeal, the cross-referenced paragraphs to the abandoned Notice of Cross-Appeal provided:

20   His Honour erred in finding the ultimate source of any money that passed between the Aruna Dogra and Kapil Dogra, and the purpose for which money passed between them on occasions, was not readily determined given the nature and extend of the intermingling of their affairs.

38   His Honour erred in finding that he was not satisfied that the funds referred to in paragraph 100 of the judgement belonged to Aruna Dogra or that they were transferred for a purpose associated with an acquisition by Aruna Dogra of an interest in the matrimonial homes.

32. In relation to ground (ii) of the Amended Cross-Appeal, the cross-referenced paragraphs to the abandoned Notice of Cross-Appeal provided as follows:

17   His Honour erred in finding he is not satisfied that there was any material representation, promising agreement or understanding that provided a reasonable expectation or right in Aruna Dogra to a proprietary interest in either the Kogarah property or the Hurstville property.

18   His Honour erred in finding Aruna Dogra acquiesced in the acquisition of title unencumbered by any proprietary interest she might otherwise have had.

50   His Honour erred in being satisfied that Mamta Dogra never acquiesced in any belief or expectation about an acquisition of a property interest in favour of Aruna Dogra.

52   His Honour erred in concluding that the provision of funds by Aruna Dogra was merely a function of familial support for Kapil Dogra.

33. Those referenced paragraphs of the abandoned Notice of Cross-Appeal ([17], [18], [20], [38], [50] & [52]) are largely conclusionary and take Kapil’s case no further.

Application to adduce fresh evidence

34. By a Notice of Motion filed on 16 August 2024, Mamta made an application for leave to adduce further evidence on the hearing of the appeal. Mamta’s solicitor, Mr O’Dea, swore an affidavit stating that the new evidence was “consistent with the findings” of the primary judge and that the evidence demonstrated “a high probability or at least a strong inference that the primary judge’s decision was correct”. At the hearing of the appeal, following some questions from the Bench, Mamta withdrew that motion.

35. However, Aruna and Kapil, who had not filed a separate motion, made an informal application at the commencement of the hearing to rely on some of the “fresh” evidence which was the subject of Mamta’s withdrawn motion. Aruna and Kapil’s informal application for leave to adduce fresh evidence was refused at the outset of the appeal. The Court’s ex tempore reasons, delivered by the Chief Justice, were as follows:

By notice of motion e-filed on 16 August 2024, the first respondent sought leave of the Court to adduce fresh evidence contained in a separate blue appeal book pursuant to s 75A of the Supreme Court Act1970. Unusually, that evidence was sought to be adduced for the purposes of confirming the decision of the primary judge, contrary to the usual position where special grounds are required to be established under the statute to show that there is a high degree of likelihood that a different result would have been obtained had the fresh evidence been available at the time. In the course of argument, Mr O’Dea, who appeared on behalf of the first respondent, indicated to the Court that he did not press the application to adduce the further evidence.

In written submissions, both the appellant, represented by Mr Freeman, and the second respondent, represented by Mr Golledge SC, indicated that they wished to take advantage of some of the material that had been identified by the first respondent and which was the subject of the application to adduce fresh evidence that was no longer pressed.

Neither the legal representative for the appellant nor the second respondent, who was in the same interest as the appellant in this matter, were able to point to any steps which their instructors had taken to identify the fresh evidence or to seek to identify it prior to the trial.

As has been said in many decisions on s 75A of the Supreme Court Act, that section is underpinned by the law’s strong commitment to finality of litigation, whilst recognising that in certain exceptional circumstances where special grounds are established, fresh evidence may yet be adduced.

The course of argument which occurred between the bench and the bar table about the material which the appellant and second respondent would seek to rely on indicated how finality would be undermined significantly if the fresh evidence were to be admitted in this case.

In the absence of any explanation or any evidence of steps which had been taken on behalf of the appellant or the second respondent to obtain such material as is now sought to be relied on prior to the trial, the notional application by the appellant and second respondent to rely on fresh evidence should be rejected. And, as I have already noted, the first respondent’s application to adduce fresh evidence has been withdrawn.

36. On 9 October 2024, after the hearing concluded and judgment was reserved, the Court received an ex parte communication from Aruna containing what she asserted was further relevant evidence. The President’s Associate responded to all parties by email on 15 October 2024 noting, first, that “a copy of the material should have been served on the respondent’s solicitors, as there should not have been any communication with chambers without copying in the other side”. This email stated:

Second, there has been no application to re-open the hearing and an application to adduce further evidence has already been rejected. In the circumstances, this communication will be treated no more as a submission for which leave was not given.

37. On 16 October 2024, a further ex parte communication was received from Aruna by the President containing submissions and further documents, for which no leave had been sought or granted. The President’s Associate responded:

Further material has been received today.

Again, there has been no application to re-open the hearing and an application to adduce further evidence has already been rejected. The further material received today will be treated no more as a submission for which leave was not given.

38. Neither communication should have been made without the leave of the Court and I have not taken those documents or submissions into account.

39. On 25 October 2024, a notice of ceasing to act was filed indicating that Goodwin & Co Lawyers no longer represented Aruna.

Consideration

40. This appeal faces formidable obstacles. Aruna’s case rested, principally, on detailed accounts given by her and her family of conversations occurring over 15 years ago about which there were no notes. In material respects those conversations were inconsistent with contemporaneous documents and representations made to public authorities, particularly by Kapil. The primary judge did not accept the evidence of those conversations, based on those contemporaneous documents and demeanour-based credit findings. The primary judge found that Aruna, Kapil, Punam and Anjali presented themselves to the Court as an integral part of a proud and cohesive family with a collective animus towards Mamta as an outsider. His Honour also found that Mr Khan presented himself as a loyal friend of the Dogra family rather than as a truly independent witness. The primary judge accepted Mamta as a reliable historian and witness of truth.

41. The primary judge carefully weighed the available documentary evidence in determining the reliability of the various diametrically opposed accounts. His Honour was not satisfied that Aruna had established any part of her case.

42. Aruna accepted that findings based on impressions from observing witnesses should not be overturned unless they are “glaringly improbable” or “contrary to compelling inferences”: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [56] (Kiefel CJ); Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ). Whilst accepting that a “compelling basis” is required to overturn findings on witness credibility, Aruna correctly pointed out that this Court must conduct a thorough review of the evidence and reasoning of the primary judge to determine if there is an error of fact or law. In resolving credibility issues, a court must assess any independent evidence which is apt to cast light on issues of credibility: Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [28]-[29] (Ipp JA, Mason P and Tobias JA agreeing).

43. As I have explained, the notice of appeal has 23 separate grounds. Kapil’s notice of cross-appeal contained 52 separate grounds. Whilst Kapil’s written submissions reduced his real complaints to two, Kapil sought to incorporate by reference several of the “grounds” identified in the abandoned notice of cross-appeal.

44. The written and oral submissions made on Aruna and Kapil’s behalf were not, with only limited exceptions, organised by reference to any one of the grounds of appeal or cross-appeal or to any group of grounds. Rather, the submissions complain about particular findings made by the primary judge, some (but not all) of which were obliquely referenced in the notice of appeal and/or the notice of cross-appeal. In many cases it was difficult to discern precisely what complaint was actually being made by the ground of appeal or cross-appeal.

45. This discursive approach to drafting a notice of appeal is to be deprecated. In Crackin’ Snack Pty Ltd v Gameking Australia Pty Ltd [2024] NSWCA 182 at [79], Bell CJ explained that the practice of presenting an unnecessarily lengthy list of appeal grounds is inimical to the just, quick and cheap resolution of the real issues in the appeal.

46. In what follows, I have attempted independently to address those few grounds where relatively clear separate submissions were made. In relation to the remaining grounds, I have sought to address them thematically and to deal with the same or similar points made repetitively by each of the appellant and cross-appellant.

Ground 1

47. Ground 1 was at least self-contained. Aruna submitted that the primary judge erred in finding that a Jones v Dunkel inference should be drawn by reason of Aruna’s failure to call Mr Dey, the solicitor who acted for Kapil and Mamta on the purchases of the Kogarah Property and the Hurstville Property.

48. In so concluding, the primary judge noted, correctly, that no evidence was adduced from Mr Dey by any party and that Mr Dey’s absence from the witness box was unexplained. The primary judge inferred that any evidence Mr Dey could have given would not have been of assistance to Aruna or Kapil.

49. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, Heydon, Crennan and Bell JJ distinguished two types of inferences that can be drawn where Jones v Dunkel applies (citations omitted):

[63] The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case ... The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.

50. This was a case of the first kind. Mr Dey, a family friend of Kapil and Aruna’s, was plainly in Kapil and Aruna’s camp. Mr Dey was intimately involved in the relevant property transactions. He acted on instructions that the properties were purchased (and, in the case of the Kogarah Property, sold) by Kapil and Mamta alone. Mr Dey’s primary point of contact in relation to the transactions involving the two properties was Kapil.

51. Aruna’s principal complaint was that the primary judge erred in finding that Mr Dey was a family friend of the Dogra family. This complaint must be rejected. Kapil explicitly and Aruna implicitly gave evidence unprompted and in chief that Mr Dey was a family friend. Kapil’s affidavit provided:

On 12 July 2006 I sent an email to Mr Mukel Dey, who was also a family friend, to change the title from three names to two; i.e from [Aruna], [Mamta] and I to [Mamta] and I. (emphasis added)

52. Aruna herself said, in evidence in chief, that Mr Dey was “our lawyer” whom “I knew for many years”. Mamta does not appear to have had any direct contact with Mr Dey. The primary judge did not err in concluding that Mr Dey was a family friend.

53. I do not accept Aruna’s submission that “there would be no reason to believe that a solicitor would hold records relating to a transaction that took place 16 years prior … or that a solicitor would necessarily recall what occurred”. From Mr Dey’s point of view, this was no ordinary series of conveyancing transactions. Mr Dey was a close friend of Kapil and a family friend of Aruna. He was clearly in a position to cast light on whether, despite the registered proprietors of the Kogarah Property and the Hurstville Property being Kapil and Mamta, family arrangements had been made in relation to Aruna’s asserted interests, if indeed such arrangements existed. No explanation was given by Kapil or Aruna for their failure to call him. The primary judge did not err in drawing the inference that his evidence would not have assisted their case.

54. Ground 1 should be dismissed.

Grounds 2, 3, 4 and 5

55. Grounds 2, 3, 4 and 5 should be dealt with together as they raise, in various ways, complaints about findings of the primary judge about the relative interests in the litigation of Aruna and Kapil on the one hand and Mamta on the other.

56. Ground 2 complains that the primary judge erred in finding that Aruna and Kapil had a “common interest”. The primary judge said:

[21] Forensically, [Aruna’s] case is directed against [Mamta], not [Kapil]. [Kapil] supports her case without qualification. With their very close relationship as mother and son, they have a common interest in establishing in [Aruna] a beneficial entitlement to the Hurstville property with the object of diminishing any entitlement [Mamta] may have in the property upon consideration of a claim made by [Kapil] under the Family Law Act 1975 (Cth) for a property settlement in proceedings presently pending in the Federal Circuit and Family Court of Australia.

57. Ground 2 was not the subject of any oral submission at the hearing of the appeal. On all the evidence, it is plain that Aruna and Kapil have a common interest in diminishing the entitlement of Mamta in the Federal Circuit and Family Court of Australia proceedings to a distribution from the sale of the Hurstville Property. So much is obvious from the contemporaneous documents, Kapil and Aruna’s evidence at the trial and the close cooperation between Kapil and Aruna in the conduct of these proceedings.

58. Ground 2 should be dismissed.

59. Ground 3 was another unfocussed complaint. Aruna submitted that the primary judge erred in finding that (a) there was no contemporaneous record of the several conversations relied upon by Aruna and Kapil; and (b) Aruna, Kapil and their collaborators gave closely aligned reconstructions of particular conversations.

60. As to the first matter, the primary judge was plainly correct to observe that there were no contemporaneous records of the critical conversations relied upon by Aruna and Kapil. The contemporaneous documents tended strongly against acceptance of the credibility and reliability of Kapil and Aruna’s accounts of those conversations. I have referred to the most important of those documents above at [28].

61. The only reference anywhere in the contemporaneous documents to the possibility that Aruna, or at least Kapil, intended that Aruna share an interest in the Kogarah Property is found in two pieces of correspondence dated 28 June 2006. One is an email from Kapil to Mr Dey and the other is a letter from the vendor’s agent. However, any suggestion that these communications support Aruna’s case is immediately contradicted by the email from Kapil to his solicitor dated 12 July 2006 which stated that Aruna had decided not to include herself in the application and that she had decided to live with and be taken care of by Punam, who lived in Singapore.

62. The 12 July 2006 email is an important contemporaneous piece of evidence. The email is completely inconsistent with Kapil’s evidence of the conversations he says he had with Aruna and Mamta about Aruna obtaining a beneficial interest in the Kogarah Property. The explanation offered by Kapil in his evidence as to why Aruna was not party to the various documents related to the purchase of the Kogarah Property was that, despite agreeing that Aruna would share in a one-third interest in the property, Mamta had convinced Kapil that “3” was an “unlucky warning number” and so there should not be three names on the title. If this were true, Kapil inexplicably chose to mislead his solicitor and family friend in a private email conversation about the circumstances in which Aruna chose not to become a purchaser of the Kogarah Property. I reject Aruna’s submission that it should be concluded that the 12 July 2006 email was sent following a family conversation with Kapil and Mamta in which she received assurances that her interests would be taken care of. That submission is inconsistent with Kapil’s explanation to his family friend that “[m]y mother Aruna Kumari Singh has decided not to include herself in the application. She will be living with and taken care by my sister”. Kapil’s email to his close friend and solicitor is inconsistent with a conclusion that Kapil had given Aruna assurances about her obtaining an interest in the Kogarah Property.

63. As to the second matter, that the witnesses in Aruna’s case gave closely aligned reconstructions of particular conversations, I reject Aruna’s complaint. Having reviewed the affidavit and oral evidence, the primary judge’s finding that those witnesses provided closely aligned reconstructions of conversations from many years ago was amply justified. The suggestion that Mamta had effectively vetoed Aruna appearing on the title by persuading all concerned that “3” was an “unlucky warning number” was included in Aruna’s affidavit, Kapil’s affidavit, Mr Khan’s affidavit and Punam’s affidavit. As I have said, Kapil’s email of 12 July 2006 is inconsistent with the suggestion that anything occurred because Mamta insisted that “3” was an “unlucky warning number”.

64. Aruna also complained in this ground about the use by the primary judge of the word “collaborators” in paragraph [24] of the judgment. This was the only use of the term by the primary judge. Aruna submitted that the use of the term “collaborators”, and the primary judge’s subsequent rejection of evidence given by witnesses in Aruna’s camp as unreliable, meant that the primary judge was implying that witnesses called in Aruna’s case each gave a dishonestly fabricated account. I do not accept that submission. In the passages complained of, the primary judge carefully set out his reasoning about the unreliability of their evidence by reference to the contemporaneous documents and the contradictions apparent from their oral evidence.

65. Although not apparently made as a separate complaint in the notice of appeal, in oral submissions, counsel for Aruna argued that primary judge’s wording in paragraph [21], specifically the phrase “object of diminishing any entitlement the defendants may have”, also showed that the primary judge found that Aruna and Kapil “had an intent to diminish the entitlement of Mamta in family law proceedings”. Aruna’s complaint was that “[f]or a finding of this nature to be made, it should have been fairly and squarely put to Aruna in the witness box at a very minimum. This is so not because of the rule in Browne v Dunn, but the Court would want to be ‘comfortably satisfied’ before making such a serious finding”.

66. I reject this complaint. Aruna plainly understood that if she established an interest in the Hurstville Property, there would be a lesser sum comprising the matrimonial pool for the division of assets as between Kapil and Mamta. On all of the evidence, Aruna’s object was to achieve that outcome. The primary judge’s recording of this obvious fact cannot legitimately be criticised. I would reject ground 3.

67. By ground 4, Aruna complained that the primary judge erred in finding that Aruna, Kapil, Punam and Anjali had a collective animus towards Mamta.

68. In written submissions, Aruna stated that the primary judge rejected Punam’s evidence because she presented as having an “animus towards [Mamta] as an outsider”. Aruna claimed that this was wrong for four reasons. First, “[a] fair reading of Punam’s cross-examination provides no support that she was giving evidence solely to support her mother or her brother”. Second, Punam was shown to be “objective and was prepared to be critical of her brother”, including “at one stage [referring] to him as an ‘idiot’ in the witness box”. Third, “Punam’s evidence, when responding to a question as to whether she told Aruna, Kapil or Mamta to put their agreement as to the Kogarah Property in writing, made perfect sense: there was no need to as she understood that Aruna name was to be on the contract and was entirely consistent with her evidence”. Fourth, Punam’s evidence supports the evidence of Mr Khan that Aruna was interested in purchasing a property in Lakemba.

69. I reject this complaint. Far from being shown to be objective, Punam’s elaborate affidavit evidence about moving large sums of cash from India to Australia on behalf of Aruna and her unsuccessful attempts to access records of deposits of those cash amounts from her Commonwealth Bank account at Hurstville was shown in cross-examination to be unreliable. When questioned about the absence of bank records Punam retorted that “I never transferred [Aruna’s] money in my account”. Punam then gave evidence of a system for storing cash transferred from India in “a big safe” at Carlingford Court. When it was put to Punam that this assertion about a storage system for Aruna’s cash was not contained in Punam’s affidavit she replied “Yeah, but she [Mamta] knows it”. When challenged about what was a remarkable omission from her affidavit evidence, if her evidence were true, Punam responded “Please don’t accuse me. Don’t insult me”. Having reviewed Punam’s evidence, the primary judge’s finding that Punam presented herself to the Court “as an integral of a proud and cohesive family with a collective animus towards [Mamta] as an outsider” (at [109]), was amply justified. Perhaps more importantly, Punam’s evidence about crucial issues was demonstrated to be unreliable.

70. There is also no merit to Aruna’s complaints about how the primary judge addressed Anjali’s evidence. At its highest, Anjali’s evidence was of conversations with Aruna, which demonstrated no more than that, as a 16 year old speaking with her grandmother, Anjali referred to the Hurstville Property as “your house” and in a later conversation, referring to the Kogarah Property, that she was told by Aruna that “I sold it with your uncle and aunty”. Perhaps more significantly, Anjali gave evidence that in mid-2019, she witnessed Mamta telling Aruna to “get out of my house” to which Aruna did not reply. Anjali’s evidence was that Mamta became angry and said to her, “[t]his is my house. I am the owner. You are old enough to check the papers and see that your Nanima [grandmother] is not the owner, I am. You and your Nanima need to get out of my house”. Nothing was said in oral submissions in this Court about Anjali’s evidence, no doubt for the reason that her evidence at its highest did not advance Aruna’s case in any material way.

71. With respect to each of Aruna, Kapil, Punam and Anjali, the primary judge’s conclusion that they held a collective animus was based on how each of the witnesses “presented themselves to the Court”. The primary judge’s finding was:

[109] Each of the plaintiff, the second defendant, Punam and Punam’s daughter presented themselves to the Court as an integral part of a proud and cohesive family with a collective animus towards the first defendant as an outsider. Shayaz Khan presented himself as a loyal friend of the Dogra family rather than as a truly independent witness. He is a long-standing friend of the second defendant with a quasi-familial relationship with the plaintiff.

72. Having reviewed the evidence, it was entirely appropriate for the primary judge to make those observations. Ground 4 should be dismissed.

73. Based on the same paragraph of the primary judge’s reasons, ground 5 asserted that:

The primary Judge erred in finding that Shayaz Khan presented himself a loyal friend of the Dogra family rather than as a truly independent witness.

74. The primary judge saw Mr Khan give evidence. As with the other witnesses who gave evidence, how he “presented” to the Court was a matter of impression. The primary judge did not err in recording his impression of the witness. As I have said, Mr Khan gave evidence that Aruna was not included as a purchaser of the Kogarah Property because Mamta had insisted that “3” was an “unlucky number”. That assertion is flatly contradicted by Kapil’s 12 July 2006 email to Mr Dey, his friend and solicitor. Having independently reviewed Mr Khan’s evidence, the primary judge’s finding that Mr Khan presented himself a loyal friend of the Dogra family rather than as a truly independent witness was amply justified. His detailed evidence of recollections of conversations which took place over 15 years ago, which are inconsistent with contemporaneous documents, supported the finding. Ground 5 should be rejected.

Ground 7

75. Ground 7 complained that “[t]he primary Judge failed to give adequate or sufficient reasons for his findings at paragraphs 2-6 above”, which in context refers to grounds 2-6.

76. I have already addressed Aruna’s complaint about the use of the word “collaborators” at [64] above. Aruna submitted that by using the word “collaborators” the primary judge was intending to suggest that there was an agreement between witnesses to fabricate their evidence. I reject the suggestion that, in this passage or when read as a whole, the primary judge was suggesting the evidence led in Aruna’s case was a fraudulent concoction.

77. The word “collaborators” was not used by the primary judge in the sinister way Aruna asserted. In context, the primary judge’s finding is an observation about Aruna and Kapil’s common interest in establishing Aruna’s alleged beneficial entitlement. If the primary judge intended to make a finding that the witnesses dishonestly agreed to fabricate a claim, his Honour would have done so explicitly. As counsel for Aruna accepted, if that view of the primary judge’ findings at [21] and [24] is as I have found, this ground does not arise:

FREEMAN: Yes. Can I say this. The complaint that’s made in the written submissions is that there weren’t the minimum content reasons. If your Honours read [21] and [24] as has been said, then that simply can’t succeed.

78. Ground 7 should be dismissed.

Grounds 6 and 8

79. These grounds are appropriately dealt with together. Ground 6 alleges that the primary judge erred in finding that Mamta was a witness of truth and a reliable historian. Ground 8 alleges that the primary judge erred in rejecting or refusing to allow cross-examination of Mamta as to her credit in respect of certain Local Court proceedings. In their submissions in this Court, Aruna and Kapil concentrated on ground 8 as encompassing the complaint also made in ground 6. I will adopt the same approach.

80. Mamta made an allegation to the police that Kapil assaulted her in September 2019. The police commenced criminal proceedings as a result of Mamta’s complaint. Aruna asserted (but led no evidence about this topic, even on the voir dire) that the police dropped the charges following allegations made by Mamta’s seven year old son that he had been coached by Mamta to give evidence implicating Kapil in the assault.

81. The primary judge refused to allow further cross-examination of the first respondent as to her credit in respect of these Local Court proceedings. The transcript of this aspect of the proceedings before the primary judge should be set out in full:

Q. You gave evidence in the local court in Sutherland on 6 March this year [2023], didn’t you?

A. Yes.

Q. Did you take an oath before giving your evidence, like you did today?

A. Yes.

Q. That proceeding was a criminal matter, in which you were the complainant?

A. Yes.

Q. Kapil Dogra was the accused?

A. Yes.

Q. One of the charges against Kapil related to an incident you said occurred on 5 September 2019?

A. Yes.

HALLAHAN: I’ll hand the witness a document.

HIS HONOUR: No, you’ll hand it to me, and I’ll see whether there’s any proper forensic purpose in this.

HALLAHAN: It’s credit, your Honour.

HIS HONOUR: I’m not going to have you put the transcript to her from these proceedings at some later time. If you’re going to do that, I think you wait until you’ve had a prior inconsistent statement. This is not a case about anything other than property.

HALLAHAN: It’s entirely about credit, your Honour.

HIS HONOUR: Think carefully before you go on, but if you want to go down that path, I think you really need to be looking for some form of inconsistent statement that you want to put to her, not just here, look at the transcript.

Carry on.

HALLAHAN

Q. Ms Chu, on 6 March 2023, you gave evidence that Kapil assaulted you on 5 September 2019?

A. Yes.

Q. You said that he squeezed your neck?

WITNESS: Your Honour, again it’s going to the--

HIS HONOUR: Would you please step out? I’m going to talk to the lawyers about this.

WITNESS: Sorry. It’s very emotional for me.

HIS HONOUR: Would you please step out?

IN THE ABSENCE OF THE WITNESS

I don’t, at the moment, see entirely where you’re going, but I think you’re treading on dangerous ground. I have had several witnesses here who have expressed passionate views about things even when they’re not asked. If you’re going to rerun some criminal proceedings, what’s going to happen here, apart from doubts being raised about the relevance and propriety of it, is that you’re going to upset this witness beyond the reasonable. It will not do anybody any good. What is it you want to put to her?

HALLAHAN: Your Honour, what occurs in this transcript is that the witness gives evidence about an incident she said occurred, the prosecution tenders and plays a video that the witness provided the police of her and Mr Dogra’s seven-year-old son saying that he witnessed that incident. There is then later in the proceeding played a later video of their son, saying that his mother, essentially, coached him, and that evidence was fabricated. The prosecution then withdrew the charge under what’s, I believe described as the second limb of May v Sullivan that the Court could not be satisfied of the truth and accuracy of this witness’ evidence.

HIS HONOUR: Is that what you’re proposing to ask? I’m not prepared to allow that. I think it is so remote from what I have to decide, I think it borders on scandalous, and I really do encourage you to focus on what we have to deal with, not these things. If you were to take the line that you want to take, I would then, in order to assess a question of credit, have to allow collateral inquiries to be made, and I just don’t think it’s in anyone’s interest, and it certainly doesn’t help anything that I’ve got to do. Unless there’s anything else you wish to say, I propose to disallow that line of questioning.

HALLAHAN: May it please the Court.

HIS HONOUR: Would we call the witness back, please?

IN THE PRESENCE OF THE WITNESS

In your absence I have disallowed questions along the line that have been pursued, and I ask that we move on to another topic.

82. The only evidence of the actual matters sought to be put in cross-examination by counsel for Kapil to Mamta are those stated in the passage I have set out immediately above. The transcript of the Local Court hearing, any evidence given by the son, or any response allegedly made by Mamta were not marked for identification by the cross-examiner. Nor did Aruna seek to put that evidence before this Court.

83. It was open to the primary judge to deny permission for cross examination on this collateral issue and, in my view, he was correct to do so. The issue Aruna sought to explore in cross-examination was of little if any likely relevance. The evidence could only be relevant to Mamta’s credit. Unless an exception applied, the evidence was inadmissible by reason of the credibility rule in s 102 of the Evidence Act 1995 (NSW). The mere fact that an alleged victim of a violent assault has charges withdrawn by the police cannot affect the credit of that person, much less meet the standard in s 103 of the Evidence Act of evidence that “could substantially affect the assessment of the credibility of the witness”.

84. The fact that a police prosecutor apparently offered no evidence in the matter is irrelevant. Such evidence would be inadmissible opinion evidence from a non-party. The circumstances of the alleged assault were remote from the issues in this case which the primary judge correctly described as related to the purchase of the Kogarah Property.

85. The primary judge was correct to prevent a collateral issue like this from derailing the trial. In the context of allegations of family violence, I am not persuaded the evidence sought to be adduced from Mamta was capable of substantially affecting Mamta’s credit within the meaning of s 103 of the Evidence Act. Questions on this topic were thus prohibited by the credibility rule.

86. Equally, second hand hearsay evidence of an assertion allegedly made by a seven year old child that Mamta “coached” him to give evidence implicating Kapil in the alleged assault is, of itself, not relevant to Mamta’s credit. Allowing Aruna to explore that issue, if it were to go anywhere, would necessarily involve the re-litigation of the allegation of assault, including what the seven year old son did or did not witness and what Mamta did or did not say to him about that topic. Had this issue been pursued, no doubt Mamta would have been entitled to explore what had been said to the seven year old by Kapil on the topic after Kapil assumed custody in 2019. The primary judge was correct to halt cross-examination on this topic when he did.

87. It would have been inconsistent with the just, quick and cheap resolution of civil disputes to permit cross-examination about credit issues on the tenuous basis alleged here. This was already a six day case. To permit the course suggested by counsel for Aruna would inevitably have blown out that allotted time, contrary to the dictates of s 56 of the Civil Procedure Act 2005 (NSW).

88. No error has been shown. Grounds 6 and 8 should be dismissed.

Ground 9

89. Ground 9 asserted that the “primary Judge erred in finding that one part of the animus has been fuelled by [Mamta’s] instigation of failed criminal proceedings against [Kapil]”.

90. This ground, which was not the subject of oral address or any written submission, highlights the unfocussed content of the notice of appeal.

91. It is plain that the witnesses in this case harboured strong feelings about the opposing side. There is no doubt, in particular, that Aruna and Kapil held an animus against Mamta. That animus was fuelled, at least in part, by Mamta having caused the police to commence criminal proceedings against Kapil for assault. That animus emerges plainly in the transcript of the proceedings before the primary judge.

92. Ground 9 must be dismissed.

Grounds 10, 11, 16, 17 and 18 and ground (i) of the cross-appeal (as amended in submissions)

93. It is convenient to deal with these grounds together as they raise essentially the same issue, namely whether Aruna proved that any money which was paid in relation to the acquisition of the Kogarah Property actually belonged to Aruna.

94. The primary judge was not satisfied that Aruna proved that any money which was paid in relation the acquisition of the Kogarah Property actually belonged to Aruna. No error has been shown in this conclusion. Simply put, the evidence of Aruna, Kapil and Punam was inconsistent with virtually all the objective evidence and their evidence was shown in significant respects to be unreliable.

95. This complaint was, at its heart, that the primary judge failed to accord sufficient weight to the fact that Aruna and Kapil were participants in what counsel called the “cash economy”. It may be accepted that Aruna and Kapil often dealt in cash. It may also be true that being participants in the “cash economy” made it more likely that each would knowingly make untrue statements about their income and assets to banks and government agencies to obtain benefits. These matters do not avail Aruna here. Aruna bore the onus of demonstrating that money paid in relation the acquisition of the Kogarah Property or the payment of the mortgage actually belonged to her. This she failed to do.

96. Grounds 10 and 11 are essentially the same and complain that the primary judge erred in concluding that Aruna was financially dependent on Kapil prior to acquisition of the Kogarah Property (ground 10) and that the primary judge erred in finding that the moneys paid from Aruna’s bank account to the bank accounts of Kapil and Mamta was not her money (ground 11).

97. On all of the evidence, Aruna was financially dependent on Kapil prior to the acquisition of the Kogarah Property. This conclusion is amply justified by, at least, the fact that Aruna lodged tax returns which demonstrated that in 2010 (long prior to the acquisition of the Kogarah Property) Aruna, on pain of criminal penalty, told the Australian Taxation Office that she did not have any assets outside Australia with a combined value over A$50,000. Her tax returns over a number of years showed a very low income. There was never a bank account in Aruna’s name until 2015. Kapil, despite his also being a participant in the “cash economy”, had a bank account at all times.

98. Much was made on appeal by Aruna of the fact that Aruna, together with Mr Khan, was looking to buy an apartment in 2015. The principal problem with this submission is that the only evidence of any substantial sum available to her, $58,000 deposited to her account, was sourced directly from Kapil. The largest sum transferred from Aruna’s bank account prior to the acquisition of the Kogarah property was $58,000. This sum, however, was equal to a transfer from Kapil made less than three weeks beforehand. The $58,000 amount (which is now accepted came from Kapil) is described by Aruna as the principal part of the “about $90,000” she alleges she contributed to the purchase of the Kogarah Property.

99. It is critical to Aruna’s case that it be accepted that cash belonging to her was brought from India to Australia sufficient to make payments from her bank accounts referred to at [11], said to be of $83,000 (which included the $58,000 referred to immediately above for the purchase of the Kogarah Property), $128,500 (payments by Aruna of the loan secured by the Kogarah Property) and $107,700 (payments made in relation to the Hurstville Property).

100. Aruna’s evidence on the topic of her assets in India and cash holdings in Australia was vague and unconvincing. In her first affidavit, Aruna states that she bought an unidentified sum of cash into Australia from early 2005. How she did so consistently with Australia’s money laundering laws was not explained. Aruna says she gave this unidentified amount of cash to Kapil. In her second affidavit, Aruna says that she brought an unidentified amount of her savings into Australia from 2005. The method remained unexplained. Contrary to her first affidavit, Aruna says that she put her money into Kapil’s account in Sydney “and also my daughter Punam Dhawn’s bank accounts in Sydney and Singapore”. Having considered this evidence, I am not persuaded that the primary judge erred in failing to accept Aruna’s evidence.

101. It was an integral part of Aruna’s case on appeal that cash was brought to Australia from India by Punam and Mr Khan. I have dealt above at [69] with Punam’s evidence about cash transfers from India. Simply put, Punam’s evidence was unreliable. As to Mr Khan, he said in his affidavit that he was involved in two transfers, of an amount in total of $25,000. On the first occasion, he visited Aruna in India in 2004 or 2005 and was given rupees equivalent to $15,000. He paid $5,000 to Kapil’s account and gave Kapil the rest. On the second occasion, in 2005, Mr Khan says he “helped” Aruna transfer $10,000 by causing his mother to accept an equivalent amount of rupees from Aruna and paying Aruna that amount in Sydney, presumably in cash.

102. The first point to note is that Mr Khan’s evidence is inconsistent with Aruna’s account of how she moved funds to Australia. Secondly, having read Mr Khan’s evidence it is clear that he was a close friend of Kapil’s and that Aruna treated him like a son. Mr Khan’s account was in many respects vague and unreliable. The details of both cash transfers were vague and the absence of any documentation is striking. When pressed about the second transfer he said it was made “in instalment”, a matter not addressed in his affidavit. No error has been shown in the conclusion of the primary judge that his Honour was not satisfied that payments of $83,000, $128,500 and $107,700 from Aruna’s bank accounts represented Aruna’s money.

103. The primary judge’s findings that Kapil and Aruna’s financial affairs were intermingled was amply justified. Like the primary judge, I am not persuaded that the funds transferred by Aruna to Kapil’s account and Kapil and Mamta’s account were in fact Aruna’s.

104. Grounds 10 and 11 should be rejected.

105. Ground 16 takes Aruna no further. This ground alleges that the primary judge erred in finding that to the extent that Aruna may have provided funds to Kapil and Mamta from her own resources, that was not in respect of the pursuit or expectation of a proprietary interest in the Kogarah Property or Hurstville Property but a function of familial support for Kapil.

106. This ground fails for two reasons. First, the primary judge was not satisfied that any “contributions” to the property allegedly made by Aruna were sourced from funds belonging to Aruna. As I have said, that finding was correct. Secondly, no error has been shown in the contingent conclusion that if any contributions were made from funds belonging to Aruna, the payments were made as a function of familial support for Kapil and not in the pursuit or expectation of a proprietary interest in the Kogarah Property. I am not persuaded that the references by the primary judge to a “cultural custom” required expert evidence. This finding was merely an adjunct to the finding that if payments were of funds belonging to Aruna, they were made as a function of familial support for Kapil. No error has been shown in this contingent finding. Ground 16 should be rejected.

107. Ground 17 complains that the primary judge erred in not accepting the evidence of Aruna and Kapil as to the transfer of moneys from India to Australia or that such moneys were a source of Aruna’s payments in respect of the Kogarah Property and the Hurstville Property. I have already dealt with Aruna’s vague and unconvincing evidence about the transfer of moneys from India to Australia. It was not suggested that Aruna ever had an independent income in Australia. As to Kapil, he gave no real evidence about the transfer of moneys from India to Australia. In his first affidavit (5 October 2021), he makes no mention of the transfer of moneys from India to Australia. In his second affidavit (23 July 2022) he makes no mention of the transfer of moneys from India to Australia. It is true that in cross-examination Kapil says that “I was holding mum’s money right from when we first arrived here, you know, in 2000” and that Aruna kept an unidentified amount of cash in a locker and gave him, on unidentified occasions and in unidentified amounts, money he deposited into his bank account. This evidence was vague and unconvincing. No error has been shown in the primary judge not accepting the evidence of Aruna and Kapil as to the transfer of moneys from India to Australia.

108. The principal submission made in support of the proposition that the primary judge should have found that “such moneys were a source of the Aruna’s payments in respect of the Kogarah Property and the Hurstville Property” was that the primary judge erred in not following Ghosh v Medical Council of NSW [2020] NSWCA 122 at [69]-[70]. It was submitted that as the detailed evidence given by Kapil and Aruna of conversations they had in Mamta’s presence was not the subject of specific cross-examination it should have been accepted. I reject that submission.

93. In Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151, Beech-Jones J explained:

[36] Nothing in Ghosh purports to lay down a rule of law that in all cases, or even “ordinarily”, evidence which is not the subject of cross‑examination must be accepted. Such a proposition was expressly rejected by Brereton JA in Ghosh at [71]. Further, the passage from the judgment of Gibbs J, as his Honour then was, in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362; [1975] HCA 27 (“Precision Plastics”) set out in Ghosh at [70] does not support that proposition either. In Precision Plastics Gibbs J upheld a finding of this Court that a damages award by a jury was unreasonably low. In the quoted passage, his Honour was comparing the undisputed evidence of the injured plaintiff as to her future intention to work with the amount that was awarded. His Honour did not purport to state that the jury would have erred in law had they rejected the plaintiff’s evidence on that topic. In any event, the above passage from Azzopardi illustrates the differences between the basis for reviewing a jury verdict and an appeal which is restricted to an error, question or point of law.

110. As Brereton JA said in the same case, at [1], “no rule of law requires that uncross-examined evidence be accepted, so long as regard is had to the absence of cross-examination and its significance”.

111. Here, the primary judge correctly rejected Aruna’s contention that, by reason of Ghosh [2020], the Court was bound to accept the evidence she and Kapil gave of conversations because they were not the subject of cross-examination by Mamta. His Honour clearly had regard to the absence of cross-examination and its significance. No error has been shown in this approach.

112. Ground 17 should be rejected.

113. In ground 18, Aruna complained that the primary judge erred in finding that her evidence about the sale of property in India in 2005 was inconsistent with her tax records for the year ended 30 June 2010. As I have stated, the evidence was that Aruna stated in a tax return for the year ended 30 June 2010, on pain of criminal penalty, that she did not own or have an interest in assets located outside Australia with a total value of over A$50,000. It is, perhaps, possible that Aruna caused a large sum of money to be transferred in cash, evading the money laundering limits of $10,000 per transfer, from India to Australia after 2005 and before the 2010 tax year, and put the cash into a box where it did not earn income (as any income would have needed to be reported to the taxation authorities and it was not). That, however, was not Aruna’s evidence. Aruna said that she bought cash into the country over numerous trips and placed the money into Kapil and Punam’s bank accounts, a method of asset transfer that neither Kapil nor Punam supported in their evidence. The suggestion that Aruna prior to 2015 had substantial assets in India from which cash was transferred to Australia was, at the very least, inconsistent with her own tax records. Ground 18 should be rejected.

114. The cross-appeal takes the matter no further. Kapil too calls in aid the fact that the Dogra family were active participants in the “cash economy”. Kapil sought to turn what were styled “gaps” in proof of the tracing of funds into a virtue. I reject that submission. In truth, as I have explained, the evidence given by Aruna, Kapil, Punam and Mr Khan of Aruna’s wealth and access to funds from India was vague, unconvincing and inconsistent. The primary judge did not err in failing to accept that evidence. Ground (i) of the cross-appeal should also be rejected.

Grounds 12, 13, 14 and 15 and notice of cross-appeal ground (ii) (as amended in submissions)

115. It is also convenient to deal with these grounds together as they raise essentially the same issue. Aruna and Kapil challenge the primary judge’s factual findings in relation to the existence of and Aruna’s belief in a beneficial or proprietary interest in two properties.

116. Ground 12 complains that the primary judge erred in finding that there was no agreement or understanding between Aruna, Kapil and Mamta for Aruna to acquire a beneficial interest or entitlement in the Kogarah Property and the Hurstville Property. Ground 13 complains that the primary judge erred in finding that no representation was made by Mamta to Aruna that she would acquire a beneficial entitlement in either the Kogarah Property or the Hurstville Property. Ground 14 complains that the primary judge erred in finding that Aruna was not encouraged by Mamta and Kapil to believe that she would acquire a beneficial entitlement in either the Kogarah Property or the Hurstville Property and ground 15 complains that the primary judge erred in finding that Aruna never held a belief or an expectation of a proprietary interest in the Kogarah Property or the Hurstville Property.

117. Each of these grounds must be rejected. At the risk of repetition, Aruna bore the onus of proving that beneficial entitlements to the properties differed (in the case of the Kogarah Property) and differs (in the case of the Hurstville Property) from the legal entitlements recorded on the Land Titles Register maintained under the Real Property Act. Aruna bore the onus of establishing any personal equity. Aruna failed to establish the essential elements of any cause of action.

118. It is perhaps true as Aruna repeatedly submitted, that she was “involved” in the decision-making process in relation to acquiring the Kogarah Property and the Hurstville Property, but I reject the submission that her involvement is “only explicable” by reason that she contributed financially or expected to be on the title. Aruna was Kapil’s mother and lived at both properties. Her “involvement” in decision making is explicable by reason of her family connection to Kapil.

119. Having examined the record, the elaborate reconstruction of conversations occurring over 15 years earlier deposed to by Aruna, Kapil and Punam is unconvincing. Those conversations are, in material respects, inconsistent with the contemporaneous documents (as described at [28] above). The primary judge did not err in failing to find an agreement or understanding between Aruna, Kapil and Mamta for Aruna to acquire a beneficial interest or entitlement in the Kogarah Property.

120. In addition, there are numerous unexplained inconsistencies and uncertainties in the accounts of Aruna, Kapil and Punam about the transfer of funds by Aruna to Kapil. I am not independently persuaded that the evidence supported Aruna’s claim. In many respects the evidence was inconsistent with that claim. At the risk of repetition, the first home buyers exemption from stamp duty application and the application for the first home owner grant (see [16] above) are each inconsistent with Aruna’s claim.

121. Kapil contended that the failure to record Aruna as a person with a “relevant interest” in the Kogarah Property on the applications to the Office of State Revenue was explicable because the family had decided that she would not be party to the contract. Kapil submitted that as a lay person he did not think that he had to disclose Aruna’s “interest”. Kapil submitted that “strictly, no misrepresentation may have been made at all but there was certainly room for doubt as to whether he was being consciously dishonest”. Whether or not Kapil was being consciously dishonest need not be determined. That was not a finding made by the primary judge. It is sufficient to record my conclusion that this contemporaneous evidence is inconsistent with a conclusion that Aruna had an interest in the Kogarah Property and inconsistent with the elaborate evidence of detailed conversations given by at least Kapil and Aruna about an agreement to create such an interest.

122. As I have earlier explained, the only contemporaneous evidence consistent with the proposition that Aruna might become a purchaser (with Kapil and Mamta) of the Kogarah Property was the email from Kapil to Mr Dey dated 28 June 2006 and the letter from the vendors agent dated 28 June 2006. As to the first matter, the agent acting for the vendor wrote a letter (dated 28 June 2006 but received some time after 29 June 2006) stating:

Dear Kapil, Mamia & Aruna

Re:   Proposed Purchase from Roditis

Property:   [Kogarah Property]

Please by advised that contracts are now unconditional and congratulate you on your purchase.

…

123. Aruna’s contention was that the only explanation for the agent having sent such a letter was that Aruna was “referred to” in the contract exchanged at the auction as a purchaser of the Kogarah Property. Whether that is so, all the evidence showed that Kapil was providing instructions to the real estate agency. There was no error by the primary judge in concluding that the inference to be drawn was that Kapil had a plan, for a time, to include Aruna as a purchaser of the Kogarah Property but that the plan was not carried out. That conclusion is consistent with Mamta’s evidence.

124. It was also submitted by Aruna that the letter was consistent with Punam and Kapil’s evidence that Aruna, Kapil and Mamta signed the contract at the auction. I disagree. Punam was not there. Kapil’s evidence rose no higher than assertion. Mamta denied that Aruna signed the contract. The real problem in Aruna’s case is that, in her affidavit evidence, she did not assert that she signed the contract at the auction (or at all).

125. As to Kapil’s email to Mr Dey dated 28 June 2006, Kapil stated that the “correct names to be mentioned on the property papers” included “Aruna Kumari Dogra”. That email is put in proper context by Kapil’s email dated 12 July 2006 which I have set out at [28(4)] above.

126. As I have said, at [62] Kapil’s evidence about this document is inconsistent with critical aspects of his account. If his evidence about Mamta’s insistence that “3” was an “unlucky warning number” such that Aruna was not included as a purchaser was true, he was choosing to mislead his solicitor and family friend in a private email conversation about the circumstances in which Aruna chose not to become a purchaser of the Kogarah property, about where she would live and who would take care of her. This unlikely conclusion makes acceptance of Kapil’s evidence as a whole difficult.

127. The case as advanced by Aruna is also inconsistent with a number of other contemporaneous documents. Neither the proposed “agreement” of September 2015 between Mamta and Kapil prepared by a solicitor on Kapil’s instructions nor the email correspondence from Kapil to Mamta in October 2015 asserted that Aruna had a beneficial entitlement to share in the proceeds of the sale of the Kogarah Property or that Kapil understood such an interest to exist. That contemporaneous evidence was significant and inconsistent with Aruna’s claimed beneficial entitlement to share in the proceeds of the Kogarah Property.

128. Further, the evidence in relation to the purchase of the Hurstville Property does not support Aruna’s claim. I agree with the primary judge that in circumstances where the marriage had deteriorated by 2015, such that solicitors’ letters were sent by Kapil to Mamta, Aruna’s lack of action to protect her claimed interest in 2017, when purchase of the Hurstville Property settled, was significant. I agree with the primary judge that Aruna acquiesced in Mamta’s acquisition of the Hurstville Property unencumbered by any claim Aruna may have had and Aruna took no steps to protect her asserted entitlement at that time.

129. Grounds 12, 13, 14, 15 and notice of cross-appeal ground (ii) should be rejected.

Grounds 19, 20, 21, 22 and 23

130. It is convenient to deal with these grounds together as they raise essentially the same issue. They are each complaints about the primary judge’s conclusions about Aruna’s entitlement to proprietary interests or proprietary relief in relation to two properties.

131. As to Ground 19, without repeating all that I have said, on the evidence it is clear that the primary judge was amply justified in concluding that Aruna had acquiesced in Mamta and Kapil’s acquisition of title in the Hurstville Property unencumbered by any proprietary interest she allegedly had. Ground 19 must be dismissed.

132. Ground 20 challenges the primary judge’s conclusion that Mamta’s conduct was not unconscionable. There was, and is, nothing in the conduct of Mamta vis-à-vis Aruna that rendered it unconscionable for Mamta to insist upon maintenance of her legal entitlement to the Hurstville Property unencumbered by any interest claimed by Aruna. Ground 20 must be dismissed.

133. Grounds 21 and 22 were not the subject of any written or oral submission. The primary judge did not err in holding that Aruna had not established an entitlement to proprietary relief either in respect of the Kogarah Property and/or the Hurstville Property or at least in relation to Kapil’s interest in the Kogarah Property and/or the Hurstville Property. Aruna did not make a submission to the effect that she was entitled to proprietary relief in relation only to Kapil’s interest. Grounds 21 and 22 must be dismissed.

134. Aruna failed to show that the primary judge ought to have ordered at least an equitable charge or lien over the interest of Mamta and Kapil in the Hurstville Property or over Kapil’s interest in the Kogarah Property. Ground 23 must be dismissed.

Conclusion and proposed orders

135. The appeal and cross-appeal must fail. Although Kapil was a respondent to the appeal, he played an active role in promoting Aruna’s claim. Kapil as a willing participant in the appeal and the proponent of the cross-appeal should be ordered to pay the costs of both the appeal and cross-appeal. For the foregoing reasons I propose the following orders:

1. Appeal dismissed;

2. Appellant (Aruna) and second respondent (Kapil) to pay the first respondent’s (Mamta’s) costs of the appeal;

3. Cross-appeal dismissed;

4. Cross-appellant (Kapil) to pay the second cross-respondent’s (Mamta’s) costs of the cross-appeal;

5. There be no order for costs of the appeal or the cross-appeal as between the appellant and first cross-respondent (Aruna) and the cross-appellant and second respondent (Kapil).

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Decision last updated: 31 October 2024