Fitas and Secretary, Department of Social Services (Social services second review)

This case concerned an appeal by Mr Fitas against a decision by the Department of Social Services regarding an overpayment of his age pension. Mr Fitas contended that certain assets, specifically a term deposit and a property, should not have been included in the calculation of his pension entitlement because they were held on trust for his brothers who resided in France. The Department's decision was that these assets were legally owned by Mr Fitas and therefore should be counted, leading to an overpayment of $13,316.19. The matter was heard by Deputy President Christopher Kendall of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr Fitas held the term deposit and the Marangaroo property on an express trust for his brothers during the period of the alleged overpayment. This involved determining if the parties had the requisite intention to create a trust, considering the verbal agreement and the documentation provided, including a French document described as a "Trust Deed" and a REIWA form. A secondary issue, if a trust was not established, was whether there were "special circumstances" warranting the write-off or waiver of the debt due to the Commonwealth, particularly if the debt was solely attributable to an error made by Centrelink.

The Tribunal considered the evidence, including Mr Fitas's testimony about a verbal agreement in 1988 to invest money from his brothers in Australia, the fact that the property and funds were legally in his sole name, and the absence of a formal trust deed at the time of investment. While a French document dated 2016 purported to confirm a trust, the Tribunal noted that an express trust requires an intention to create one at the time of the transaction. Applying the principles from cases like *Korda v Australian Executor Trustees (SA) Ltd*, the Tribunal found that the evidence did not demonstrate a clear intention to create an express trust at the relevant time. The Tribunal noted that the property and funds were in Mr Fitas's sole name, he was the sole signatory on accounts, and he had not provided clear evidence of the origin of all funds or the specific terms of any trust arrangement. Furthermore, the Tribunal found that the debt was not attributable solely to an error by Centrelink, and therefore, no "special circumstances" existed to waive the debt.

The Tribunal affirmed the Department's decision, concluding that Mr Fitas held the assets in his own name and that no express trust had been established for the benefit of his brothers during the period in question. Consequently, the overpayment of the age pension was a debt due to the Commonwealth, and the Tribunal found no grounds to write off or waive this debt.